Lierly v. McEwen

PRESTON, J. Motion to dismiss appeal. This action involves the construction of a contract. It is to determine *646 thereunder the respective rights of the parties to oil produced from certain properties and for royalties therefrom. The cause was tried and judgment entered on February I, 1924, but upon appeal, on December 21, 1927, it was reversed, with direction that judgment be entered in accord with the opinion filed (Lierly v. McEwen, 87 Cal. App. 711 [262 Pac. 457]). Apparently this was not done, but a different judgment was entered. Thereafter a proceeding in mandamus was filed in the District Court of Appeal, which heard the appeal, to compel the entry of the judgment ordered. On April 2, 1929, upon the hearing a peremptory writ was ordered and duly issued (Lamb v. Owen, 98 Cal. App. 106 [276 Pac. 628]). On June 20, 1929, the former judgment was set aside and a new judgment was entered in said cause, which fully and accurately met the demands of said writ. From this last judgment appellants now prosecute an appeal supported alone by the judgment-roll in the action. It is not contended that the court did not fully and accurately follow the writ of mandate. Under such a situation no issues can be left for further litigation. (Heinlen v. Beans, 73 Cal. 240 [14 Pac. 855]; Shank v. Blackburn, 61 Cal. App. 577, 579 [215 Pac. 559].) The most that can be said is that the right of appeal left appellants is a mere naked one. Every issue that can now be made either was or could have been determined upon previous hearings of this cause. (Price v. Sixth District, 201 Cal. 502 [258 Pac. 387].) While the motion is one to dismiss the appeal, it is also sufficient as a motion to affirm the judgment upon the ground that the appeal is frivolous (Tobias v. Adams, 201 Cal. 689 [258 Pac. 588]). Under the latter head, we have entertained the motion, and for the reasons above expressed the judgment is hereby affirmed. Waste, C. J., Richards, J., Seawell, J., Langdon, J., Curtis, J. , and Shenk, J., concurred.