KYNE v. KYNE (1943)

Rehearing denied.

I dissent from the order denying a rehearing. It should have been granted, in my opinion, for two reasons: First, to consider certain facts and circumstances disclosed by the record but not referred to in the decision as filed, tending to show that the trial judge's refusal to allow additional attorneys' fees was not based solely on the question of the validity of the contingent fee contract, but that he concluded also, and irrespective of the question of the validity of the contract, that under all the circumstances and particularly in view of the facts stated in the letter written by the judge who granted the original allowance of $3,500, that said attorneys had already been amply compensated for all services performed; secondly, to consider the question of whether, under the 1939 amendment, St.1939, p. 1758, to section 196a of the Civil Code, and in view of the construction placed on that section as amended, by the Supreme Court in the recent case of Carbone v. Superior Court, 18 Cal.2d 768, 117 P.2d 872, 136 A.L.R. 1260, a trial court may, unlike in divorce cases, in the absence of a previous application therefor, grant additional attorneys' fees for past services performed subsequent to the rendition of the judgment. The more recent case of Andrade v. Newhouse, 54 Cal.App.2d 339, 128 P.2d 927, does not, in my opinion, determine that question.

PER CURIAM.