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District Court of Appeal, Third District, California.

Marilyn H. HARDY, Plaintiff and Respondent, v. John C. HARDY et al., Defendants,

Eugene D. Hardy, Defendant and Appellant. Eugene D. HARDY, Cross-complainant, v. Marilyn H. HARDY, Cross-defendant.

Civ. 9448.

Decided: October 07, 1958

Eugene D. Hardy, Santa Ana, and George G. Tyler, Yreka, for appellant. John G. Robertson, Long Beach, and Tebbe & Correia, Yreka, for respondent.

The facts and circumstances out of which this appeal arises are set forth in detail in Hardy v. Hardy, Cal.App., 330 P.2d 278, and hence it is unnecessary to restate the same.

The first contention of defendant, Eugene D. Hardy, who alone appeals, is that it was beyond the jurisdiction of the trial court to award attorney fees and costs to plaintiff on appeal. In the prior appeal we held that the order of the trial court awarding attorney fees and costs to plaintiff to be paid by Eugene as trustee out of John's interest in the trust estate was reasonable and proper. The ratonale of our conclusion in the prior appeal relative to attorney fees and costs in the divorce proceeding is likewise applicable to the question of such fees and costs on appeal.

Defendant makes one further contention—that in any event the order of the trial court was against Eugene as an individual and hence emproper. There can be no question that Eugene appeared in all of the proceedings only in his capacity as trustee and not individually. If it be necessary to modify the judgment as entered, then it would appear that this is a proper case for the application of section 956a of the Code of Civil Procedure.

It is therefore ordered that the order heretofore entered by the trial court be modified by adding the words, ‘as Trustee under the Will of Mary C. Hardy, Deceased,’ following the name Hardy as it appears on page 54, line 5, of the clerk's transcript on appeal. As so modified, the order is affirmed. The plaintiff is to recover costs.

PEEK, Acting Presiding Justice.

SCHOTTKY, J., and WARNE, J. pro tem., concur.