Clark v. Dunnam

46 Cal. 204, 1873 Cal. LEXIS 159

• Court: California Supreme Court
• Decided: July 1, 1873
• Docket: No. 3,647
• Status: Published

Opinion

By the Court, Crockett, J.:

One Jones brought an action against Clark and others, doing business as copartners with Jones, under the firm name of the “Dardanelles Mining Company,” for an accounting and a dissolution of the partnership. On the 20th of August, 1869, a decree was rendered for a dissolution of the partnership, and ordering a sale of all its property and effects, out of the proceeds of which it directed to be paid: First—The expenses of the sale. Second—Any balance due to the receiver. Third—Jones’ costs and disbursements in the action, taxed at five hundred and eighty-eight dollars and five cents. Fourth—To Jones, on account of an indebtedness of the partnership to him, the sum of eighteen thousand nine hundred and sixty-four dollars. Fifth—If there remained any of the proceeds after satisfying these sums it was to be distributed amongst the copartners in certain proportions fixed by the decree. From the decree the defendants therein appealed to this Court, which directed it to be modified, by deducting from the amount awarded to Jones the sum of one thousand dollars, and in all other respects it was affirmed. On the filing of the remittitur in the Court below, that Court modified the decree, as it was required to do, and in the order of sale which was issued, directed the Sheriff to compute interest at the rate of seven per cent per annum on the amount awarded to Jones, from the date of the original decree—August 20th, 1869—until paid. After the sale, and before the proceeds were distributed, Clark, one of the defendants, served a written notice on the Sheriff, protesting against the allowance of interest to Jones, and demanding that the fund be distributed without such allowance. The Sheriff, however, disregarded the protest, and paid the interest to Jones as required by the order of sale; and this action is by Clark against the Sheriff to recover his proportion of the sum which he claims was wrongfully paid as interest to Jones. Judgment having been entered for the defendant on an agreed statement of facts, the plaintiff appeals. "When the decree of August 20th, 1869, was rendered, the Act of March 30th, 1868, regulating the rates of interest, was in force. (Stats. 1867-8, p. 553.) In construing this statute, we have several times decided that, under the first section, all final money judgments, whether for money lent or otherwise, bore interest at the rate of seven per cent per annum. The only point to be decided under the agreed statement is, whether the decree of August 20th, 1869, is a final money judgment in the sense of the statute, and therefore bore interest. The plaintiff in this action treated the decree as final when he prosecuted an appeal from it. If it was not final his appeal should have been dismissed on that ground. But we entertained the appeal and decided the cause, and in justice the plaintiff should now be estopped to deny the finality of the decree. But we entertain no doubt that it was final. It ascertained and adjudged that a certain sum of money was due to Jones, and determined the whole matter in litigation. Nothing thereafter remained to be done except to execute the decree by. a sale of the property and a distribution of the proceeds in the manner fixed by the decree itself. This was a mere ministerial duty, and nothing was left for the Court to do except to see that the decree was properly executed. It comes fully within the definition of a final judgment as defined by section one hundred and forty-four of the Practice Act. Nor was it set aside by the judgment of this Court. On the contrary, it was only slightly modified in its amount, and was otherwise left intact.

I think interest was properly computed on the decree, and I discover no error in the judgment, which is therefore affirmed.

So ordered.

Mr. Chief Justice Wallace did not express an opinion.