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District Court of Appeal, Second District, Division 1, California.


Civ. 13165.

Decided: May 28, 1942

Sherman & Sherman, Robert W. Kenny, Morris E. Cohn, and W. B. Thomas, all of Los Angeles, for appellant. Earl Warren, Atty. Gen., and John L. Nourse, Deputy Atty. Gen., for respondent.

Counsel for the insurance company in the cases of A. Caminetti, Jr., Insurance Commissioner of the State of California v. State Mutual Life Insurance Co., Civ. No. 13165, Cal.App., 126 P.2d 165, and A. Caminetti, Jr., Insurance Commissioner of the State of California v. National Guaranty Life Co., Civ. No. 13166, Cal.App., 126 P.2d 170, petitioned the superior court for an allowance of attorneys' fees to be paid out of the assets of the insurance company in each case. The legal services involved preparing and presenting to the superior court the case for the company as against the insurance commissioner. The court made its order denying the petition, from which this appeal has been taken.

The rule to be here applied is to be found in the case of Anderson v. Great Republic L. Ins. Co., 41 Cal.App.2d 181, at page 191, 106 P.2d 75, 80, as follows: “It is a general rule that where an application has been made for the appointment of a receiver for a corporation, attorneys' fees and expenses in resisting such application, if made in good faith and upon reasonable grounds, may become a valid claim against the receiver. Whether such attorneys' fees and expenses are to be allowed rests in the sound discretion of the court, in view of all the facts and circumstances. Note 89 A.L.R. 1531. If allowed, the question as to the amount thereof is likewise addressed to the sound discretion of the court. The claim of the officers of a corporation or of attorneys employed by them to be paid out of the funds in the hands of the receiver is not an absolute right, but it is entirely in the discretion of the court administering the fund to determine, first the good faith and justification for such application, and second, if warranted, the amount to be allowed.”

In view of the facts detailed in our opinion affirming the decision of the lower court in Civ. No. 13165 and Civ. No. 13166, there was no abuse of discretion on the part of the trial court in denying counsel fees.

The order denying the petition for allowance of attorneys' fees is affirmed.

DRAPEAU, Justice pro tem.

YORK, P. J., and DORAN, J., concurred.