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District Court of Appeal, Second District, Division 2, California.

COYNE v. MASON et al.

Civ. 10953.

Decided: April 25, 1936

John J. Ford, Frank M. Benedict, and Ford, Benedict & Ford, all of Los Angeles, for appellant. D. Joseph Coyne, of Los Angeles, for respondents.

This appeal is incidental and subordinate to an appeal in a case between the same parties, 56 P.(2d) 541. When that case was transferred to this court by the Supreme Court, by some inadvertence the instant case was not then transferred. The respondent states in her brief that the merits of this appeal will be disposed of by the decision in the earlier appeal. The appeal in that case went against the respondent herein and is controlling on this appeal.

In the instant appeal the cross–complainant (defendant) California Western States Life Insurance Company appeals from that part of the judgment which awards it no damages for the wrongful withholding of the property based upon the value of the use and occupancy of the property for the period during which the court found cross–defendants wrongfully withheld possession from cross–complainant. The judgment should have included this item, a sum equal to $60 per month for the period from November 14, 1933, to the date of the judgment, May 24, 1934, and the trial court is directed to so amend the judgment.

The judgment as so modified is affirmed. Judgment against the respondent for costs.

CRAIL, Presiding Justice.

We concur: WOOD, J.; GOULD, Justice pro tem.

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