AUSTIN v. TURRENTINE (1939)

District Court of Appeal, Fourth District, California.

AUSTIN et al. v. TURRENTINE, Judge.

Civ. 2200

Decided: March 11, 1939

Charles C. Crouch, of San Diego, and George W. Crouch, of Los Angeles, for petitioners. Stearns, Luce, Forward & Swing and Fred Kunzel, all of San Diego, for respondent.

In denying respondent's petition for rehearing and to clarify the additional point raised in that petition, i.e., that this court erroneously assumed that the books of account of the Hallmark Oil Company, Inc., were in the possession of the defendant Charles H. Forward, we should add that from an examination of the testimony it is not altogether clear whether the books of account of the Hallmark Oil Company, Inc., prior to April 1, 1935, were in the possession of the defendant witness. However, from respondent's return to the petition for a writ of mandate the only ground for refusing to instruct the witness to produce the books of that company subsequent to April 1, 1935, was predicated upon the ground that they were not material or necessary to the proof of petitioner's cause of action and that said books could only be material when and if it was established that the petitioners became entitled to an accounting. Such was the apparent basis for the refusal of the court to instruct the witness to produce them.

With this explanation the petition for rehearing is denied.

PER CURIAM.

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