Randall v. Duff

The Court.

Motion to dismiss the appeal herein on the following grounds:

“ 1. That the action of the lower court in modifying the judgment or decree in said action, as directed by the supreme court, was a ministerial act only, and one in which the lower court had no jurisdiction, and is not an act or order from which an appeal will lie.

“ 2. That the judgment or decree rendered in said action on the third day of June, 1892, and modified as directed by the supreme court on the third day of March, 1894, by the superior court, is a final judgment in said action, already approved and passed upon by the supreme court as a final determination of said action; and no further appeal lies therefrom.

“•That the so-called order from which plaintiff has appealed is not an appealable order.”

' When this case was last here on appeal (101 Cal. 82) the judgment of the court below was “ affirmed in all respects except as to the matter of interest, as to which the judgment was reversed and the cause remanded to the superior court, with direction to amend its decree by allowing interest to the plaintiff down to March 1, 1892, and by reducing the judgment against him correspondingly.”

The present appeal is taken from the order of the court below modifying the judgment as to the matter of interest and from the judgment as modified.

It may be true, as claimed, that the order and judgment appealed from were made and amended, as directed by this court, and that the appeal is frivolous and vexatious, and was taken merely for the purpose of delay; but that is a matter which can only be determined by an examination of the record on appeal, and this we have held will not be done on a motion to dismiss an appeal.

In People v. McNulty, 95 Cal. 595, it was held that to dismiss an appeal “ upon the ground that it is frivolous is to refuse to consider its merits, and, therefore, there can be no dismissal of an appeal on the ground that it is wdthout merit; for to reach this conclusion the merits must be considered and the record must be examined.” To the same effect is Howell v. Howell, 101 Cal. 115;

As the order modifying the judgment, and the judgment as amended, are both appealable, it follows-that’ the motion to dismiss the appeal herein should be denied.

So ordered.

Justice De Haven, being disqualified, did not participate in the foregoing decision.