METZENBAUM v. METZENBAUM (1953)

In their petition for rehearing respondents complaint that in our opinion no mention is made of the fact that in the complaint filed in the instant action by respondent Walter Metzenbaum it was alleged that certain oil and gas leases referred to as the Culver City leases were the property of the partnership and that the allegation was controverted by appellant. The obvious reason for the absence of any reference to this in our opinion is that this fact is wholly immaterial to any question presented upon this appeal. Appellant did not contend and this court did not declare that he was entitled to be reimbursed for attorneys' fees incurred in litigating this issue or any other issue except that relating to the Oulton and Surfluh royalties.

It is also asserted that the allegations with respect to the partnership's ownership of the royalties last mentioned contained in the cross-complaint against Fanchon and Rose were identical to those contained in appellant's answer to the complaint of Walter herein. There is, however, no significance to this, for it is apparent that an adjudication of this issue as between appellant and Walter would not be binding upon the adverse chaimants (Fanchon and Rose) unless they were brought in as parties.

It is further said that our opinion omits mention of the fact ‘that all of the children, including Fanchon, filed a disclaimer to Murray's cross-complaint by which they disclaimed any interest in the partnership assets.’ This apparently refers to some equivocal language in the answer of the cross-defendant Fanchon, which did not escape our attention. The answer, however, denies that the royalties in question were partnership assets. Moreover, that Fanchon did not consider that she had, by her answer to appellant's cross-complaint, disclaimed any interest in the royalties in question is made evident by the fact (1) that, as evidenced by the findings, she participated throughout the trial and appealed from the judgment rendered against her upon appellant's cross-complaint; (2) that her appeal from the judgment rendered against her in the Franchon suit was pending and undetermined during the trial of the instant case; and (3) that after the entry of the interlocutory judgment herein she filed still another action (584,906) wherein she asserted her ownership to one-half of the Surfluh royalty, by reason of which she was by the final decree herein restrained from further prosecution of said action. The facts just recited are made to appear by the trial court's findings in the proceeding which resulted in the order appealed from, and respondents are necessarily concluded thereby. Kern Oil Co. v. Crawford, 143 Cal. 298, 302, 76 P. 1111, 3 L.R.A.,N.S., 993; Billings v. Farm Dev. Co., 74 Cal.App. 254, 263, 240 P. 298; 2 Cal.Jur., p. 839, sec. 492.

Respondents also assert that the trial court could have found that the services of appellant's attorneys were not increased by virtue of the cross-complaint. The answer is that the court did not so find.

Nor is it of any moment, as respondents suggest, that the Franchon suit was directed against appellant alone. Inasmuch as the title to the royalties stood in his name alone and, as liquidating partner, he was collecting the revenues therefrom, he was the only necessary party defendant in an action whereby Fanchon, as plaintiff, undertook to establish an interest therein adverse to the partnership. Appellant's duty to defend the title of the partnership thereto was no less because he was not described in the complaint as liquidating partner.

Finally, respondents say that ‘the trial court determined that there was no additional work’ involved by reason of the trial of the issue raised by the cross-complaint as to the partnership's ownership of the royalties in question. This is a palpable misstatement, for the trial court made no such finding. Equally erroneous is the statement in the petition to the effect that appellant's ‘attorneys made no contention nor did they prove that the filing of the cross-complaint involved any additional effort’. The reporter's transcript reveals that Mr. Krug (one of appellant's attorneys) testified that approximately one-half of the time spent in the trial, which lasted thirteen or fourteen days, was devoted to the determination of the title to the two royalties in question and that one-third to one-half of the time involved in the appeal from the judgment therein was devoted to the same matter.

The petition for rehearing is denied.

PER CURIAM.