MONTGOMERY KENNEDY v. BOARD OF ADMINISTRATION OF CITY EMPLOYEES RETIREMENT SYSTEM OF SAN DIEGO

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District Court of Appeal, Fourth District, California.

MONTGOMERY et al. (KENNEDY, Intervener) v. BOARD OF ADMINISTRATION OF CITY EMPLOYEES' RETIREMENT SYSTEM OF SAN DIEGO et al.

Civ. 2330

Decided: October 07, 1939

Ray D. Johnson, of El Centro, and John Langston, of Taft, for appellants. Dayton L. Ault, City Atty., and James J. Breckenridge, Deputy City Atty., both of San Diego, for respondents.

Respondents have filed a petition for rehearing and present two questions that require further notice. They first urge that the judgment in the declaratory relief action has become final, is binding on intervener and precludes her from recovering anything in this action. They next urge that our statement in the opinion that intervener, as successor in interest of A.R. Kennedy, “is entitled to his retirement pay” has the effect of awarding her $32.50 a month for life, when, under an optional selection made by Kennedy during his lifetime, she was only entitled to receive a smaller monthly payment until a reserve fund is exhausted. We will consider the two questions in the order stated.

Mrs. Kennedy was not a party to the declaratory relief action. There is nothing in the record before us indicating that she either actively or tacitly participated in its prosecution or actually knew that it was filed or prosecuted. Our order merely reverses the judgment against her and has the effect of remanding her action for new trial. The effect of the judgment in the declaratory relief action may be inquired into and determined at such time. Under the very unsatisfactory condition of the record before us, we expressly refrain from passing upon the question of the effect, if any, of that judgment on the suit of intervener.

When we said in the opinion that [93 P.2d 1046, 1050], “We can find nothing in the city charter nor in the retirement ordinances that require the ten years of continuous service to immediately precede the retirement. As, on the record before us, it appears that Kennedy was eligible for retirement and that intervener as his successor in interest is entitled to his retirement pay, the judgment against intervener must be reversed” we spoke rather loosely.

We did not and do not now intend to intimate that Kennedy or intervener as his successor in interest was or is entitled to any particular amount or kind of retirement benefits. All we intended to state was that at the time of his retirement Kennedy was entitled to something in the form of retirement and that intervener succeeded to his rights. The amount and character of those payments cannot be determined from the record. Nor can we determine whether the fund from which those payments have been made has been exhausted if the source of such payments be limited to any particular fund or amount.

All that we intend to hold is that, on the record before us, it appears that intervener might be entitled to some payments from the retirement fund. As this portion of the case must be retried, the character, amount, duration, and other necessary facts concerning such payments and the fund from which they may be drawn, if any, may be determined at that time, if the evidence discloses that she is entitled to receive anything in addition to the payments already made.

The petition for rehearing is denied.

MARKS, Justice.

I concur: BARNARD, P.J. GRIFFIN, J., being disqualified, does not participate herein.

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