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Taliaferro v. Davis

California Court of Appeals, First District, First Division
May 1, 1963
30 Cal. Rptr. 432 (Cal. Ct. App. 1963)

Opinion

For Opinion on Rehearing, see 31 Cal.Rptr. 443.

Eugene A. Taliaferro, San Pablo, in pro. per.

Frisbie & Hoogs, Berkeley, for respondent.


SULLIVAN, Justice.

E. A. Taliaferro, appellant herein, has taken three separate appeals from a judgment and two orders subsequent thereto in an action of interpleader.

The action was originally filed in the municipal court and, upon the filing of two cross-complaints seeking relief beyond the jurisdiction of said court, was transferred to the court below. We are concerned here only with the 'cross-complaint to determine adverse claims' filed against the cross-defendant Davis, respondent herein,

Following is a chronology of the procedural events pertinent here: On June 27, 1960, the cause was transferred to and filed in the court below; on August 2, 1960, respondent's default was entered; on August 3, 1960, after a hearing, the matter was submitted on the cross-complaint; and, on October 27, 1960, the court filed its memorandum decision, stating that appellant was entitled to certain relief and directing him to prepare a judgment in accordance with the views therein expressed. On November 4, 1960, respondent filed her 'Notice of Motion for Order Setting Aside Default and Any Judgment Entered Thereon.' Despite the filing of this motion, appellant caused to be presented to the court a 'Judgment for Declaratory Relief and Decree Quieting Title' which was signed, filed and entered on November 9, 1960. This default judgment was in favor of appellant and against respondent. Nevertheless, on November 10, 1960, appellant filed a notice of appeal from it, which is the first of the three appeals now before us.

On November 14, 1960, the court made its order setting aside the defaults of respondent together with any judgment entered thereon. On November 17, 1960, appellant moved to vacate this last order which motion was denied on November 21, 1960. On January 13, 1961, appellant filed his notice of appeal stating that he 'appeals * * * from the denial of a motion to vacate order of November 15, 1960, setting aside a default judgment; * * *' This is the second appeal herein.

Erroneously referred to as dated November 15, 1960.

In the meantime, on November 23, 1960, respondent filed a cross-appeal apparently precautionary in nature from the default judgment. On January 30, 1961, appellant moved in the court below to dismiss the cross-appeal upon the ground that respondent failed and refused 'to deposit her share of the costs of preparation of the transcript on appeal * * *.' On February 15, 1961, the motion was denied. On March 13, 1961, appellant filed a notice of appeal 'from the denial of a motion to dismiss cross-appeal * * *.' This is the third appeal.

We turn to the first appeal filed November 10, 1960, from the judgment entered November 9, 1960. As noted above, this judgment was in favor of appellant. Generally, a party may not appeal from a judgment or order made in his favor, since he is not a 'party aggrieved' thereby. (Code Civ.Proc., § 938; Coburg Oil Co. v. Russell (1950) 100 Cal.App.2d 200, 204, 223 P.2d 305; Cook v. Stewart McKee & Co. (1945) 68 Cal.App.2d 758, 762, 157 P.2d 868; 3 Witkin, Cal.Procedure, Appeal, § 35, p. 2182.) While it might be argued that appellant did not receive the full relief he prayed for and thus had a right to appeal from the unfavorable part of the judgment (see Spencer v. Nelson (1947) 30 Cal.2d 162, 164, 180 P.2d 886) such circumstance does not exist in fact in the instant case. Appellant has made no attack on the judgment. He has not indicated any unfavorable part thereof from which he appeals. He has not presented either in his briefs or on oral argument a single contention or point as a basis for the reversal of the judgment. On the contrary, although appealing from the judgment and 'the whole thereof' he requests us 'to order the lower court to enter the default judgment of November 9, 1960.' (Emphasis added.)

Since appellant makes no attack on the judgment, considers it in all respects Cicinelli v. Iwasaki

Furthermore, appellant's conduct on this appeal is supportive of the conclusion that he took the appeal with the apparent objective of divesting the court below of jurisdiction to hear and decide respondent's motion to vacate. This motion was filed on November 4, 1960; appellant procured the entry of judgment on November 9, 1960; and immediately appealed therefrom on November 10, 1960. Although on oral argument he denied that the appeal was taken for such purpose, nevertheless it appears that appellant's sole argument here is that the trial court erred in setting aside the default and default judgment of November 9, 1960, because it had lost jurisdiction on the filing of his appeal.

We are of the view that appellant has misused the right of appeal. Although he appears here in propria persona, he is no neophyte in appellate proceedings. Penalties have been imposed upon him on eight previous appeals. (See Taliaferro v. Taliaferro (1962) 203 Cal.App.2d 652, 653, 21 Cal.Rptr. 870.) We think a penalty should be imposed here.

The records of this court disclose that he has appeared herein in propria persona from July 14, 1952, to date, 83 times as appellant or petitioner and 18 times as respondent.

We take up appellant's second appeal filed January 13, 1961, from the denial of his motion to vacate the previous order of court setting aside the default. While the order setting aside the default and default judgment was appealable (Yarbrough v. Yarbrough (1956) 144 Cal.App.2d 610, 613, 301 P.2d 426; Paul v. Walburn (1933) 135 Cal.App. 364, 365, 26 P.2d 1002; 3 Witkin, Cal.Procedure, Appeal, § 25, p. 2170), appellant did not appeal therefrom. Appellant appealed from the denial of his motion to vacate such order. An appeal does not lie from an order refusing to vacate a judgment or order which is itself appealable. (Nuckolls v. Bank of California (1937) 10 Cal.2d 266, 270-271, 74 P.2d 264, 114 A.L.R. 708.) The order of November 14, 1960, was appealable. The order of November 21, 1960, refusing to vacate it was not appealable. The appeal therefrom must therefore be dismissed.

Finally we take up the appeal filed March 13, 1961, from the denial of appellant's motion to dismiss respondent's cross-appeal. Quite apart from the consideration that appellant's motion could only be made in this court (Engelken v. Justice Court (1920) 46 Cal.App. 512, 189 P. 298), it appears that respondent's cross-appeal has already been dismissed by order of this court on October 13, 1961. Since the question raised by the appeal is now moot, this appeal also must be dismissed. (Consolidated etc. Corp. v. United Aircraft etc. Workers (1946) 27 Cal.2d 859, 862-863, 167 P.2d 725.)

The appeal from the default judgment entered November 9, 1960, the appeal from the denial of appellant's motion to vacate the order setting aside the default and default judgment, and the appeal from the denial of appellant's motion to dismiss respondent's cross-appeal are, and each of them is, dismissed. The respondent is awarded costs on all appeals. The sum of $100 is assessed against appellant as a penalty in respect to his appeal from the default judgment and added to the costs awarded to respondent.

BRAY, P.J., and MOLINARI, J., concur.


Summaries of

Taliaferro v. Davis

California Court of Appeals, First District, First Division
May 1, 1963
30 Cal. Rptr. 432 (Cal. Ct. App. 1963)
Case details for

Taliaferro v. Davis

Case Details

Full title:E. A. TALIAFERRO, Cross-Complainant and Appellant, v. Dorothy DAVIS…

Court:California Court of Appeals, First District, First Division

Date published: May 1, 1963

Citations

30 Cal. Rptr. 432 (Cal. Ct. App. 1963)