MATHER v. MATHER

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

MATHER et al. v. MATHER.

Civ. 13275.

Decided: May 10, 1947

Don Lake and James R. Jaffray, both of Los Angeles, for plaintiffs and appellants. Cerf, Robinson & Leland, of San Francisco, for defendant and respondent.

The respondent has filed a petition for rehearing arguing that the accounting ordered by this court was barred by prior adjudications. He concedes that appellant sought an accounting in her original pleadings. Her offer of proof of the respective payments was consistent with this theory. No accounting has been had in any court at any stage of the proceedings and there is no prior adjudication that she is not entitled to one. Therefore such action is not barred. Neither is appellant estopped by any adjudication necessarily inconsistent with an accounting of the prior payments. All adjudications actually made are fully recognized and adhered to in our original opinion.

We have examined the briefs and records on the previous appeals. Counsel for respondent have not been frank in their statements of facts appearing in these briefs. They still refrain carefully from conceding or denying the truth of the alleged overpayment received by their client. They argue that the proffered evidence on the accounting was hearsay. The argument is based on the equivocal statement that ‘the accounts and papers in the Greenfield Estate file are not admissible against Mr. Mather, who was not a party thereto.’ Concealed is the fact that the offer also included the vouchers signed by Mr. Mather acknowledging receipt by him from the executors of some $26,000, or more than one-half of the claim against the Greenfield estate, of which, under the final decision of the Supreme Court, 25 Cal.2d 582, 154 P.2d 684, he and appellant were each entitled to an equal one-half. Yet respondent, in his verified complaint herein, alleged that the claim, without interest, amounted to $39,000, on which $7,000 had been paid appellant.

Our reversal of the judgment was deliberately made to enable the courts to reach at last a fair and equitable termination of the case.

Petition denied.

NOURSE, Presiding Justice.

GOODELL, and DOOLING, JJ., concur.