Combs v. Haddock

• Decision Date: 16 November 1962
• Court: California Court of Appeals Court of Appeals
• Parties: Lee COMBS, as Executor of the Estate of Gladys N. Mashon, Deceased, Plaintiff and Respondent, v. T. J. HADDOCK et al., Defendants and Appellants. Lee COMBS and Anne L. Kettering, Co-Executors of the Estate of O. C. Kettering, v. T. J. HADDOCK et al., Defendants and Appellants. Civ. 26120, 26121.

Page 252

26 Cal.Rptr. 252

209 Cal.App.2d 627

Lee COMBS, as Executor of the Estate of Gladys N. Mashon, Deceased, Plaintiff and Respondent, v. T. J. HADDOCK et al., Defendants and Appellants.

Lee COMBS and Anne L. Kettering, Co-Executors of the Estate of O. C. Kettering, v. T. J. HADDOCK et al., Defendants and Appellants.

Civ. 26120, 26121.

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

Nov. 16, 1962.

Kindel & Anderson, Robert R. Burge, Los Angeles, for appellants.

William R. Jarnagin, Lee Combs, Beverly Hills, for respondents.

ASHBURN, Justice.

Defendants appeal from an order taxing costs on appeal and assign three specific errors therein, viz., allowance of costs to plaintiff-respondent Gladys N. Mashon; disallowing defendant-appellants the cost of stay bonds on appeal; disallowing defendant-appellants costs of printing petition for rehearing in District Court of Appeal, petition for hearing in Supreme Court and reply to respondent's answer to petition for hearing in Supreme Court. The opinion of Division One of the Second District Court of Appeal upon the merits of the cases is reported in Mashon v. Haddock, 190 Cal.App.2d 151, 11 Cal.Rptr. 865. ¹

The litigation arose out of liquidation of a partnership wherein the defendants Haddock were general partners and Gower A. Mashon and Otis C. Kettering (both of whom now are deceased) were limited partners; it involved an accounting of the affairs of said partnership. There was also a series of joint ventures in which the Haddocks, Mr. Mashon and Mr. Kettering were jointly interested and which were also involved in the accounting. Gladys Mashon, after the death of her husband Gower A. Mashon, sued for a determination of amount due her and her husband from his interest in the partnership and the joint ventures, and for money due on certain promissory notes held by her. Kettering brought a similar action for accounting. The cases were consolidated for trial but resulted in separate judgments.

In the Mashon case (2nd Civ. #24619) the judgment awards Mrs. Mashon as executrix of her husband's estate $143,141.14 principal and $81,169.63 interest. The appellate court opinion shows that this included 'damages for the Haddocks' failure to promptly render an accounting' (p. 164, 11 Cal.Rptr. p. 871) in the sum of $14,082.15. Mrs. Mashon was awarded in her own right $25,933.33 principal and $9,755.37 interest. Her recovery was based upon two promissory notes payable to her and her husband as joint tenants and owned by her alone at the time of suit. In the Kettering case (2nd Civ. #24620) plaintiffs recovered $11,000 principal plus interest of $3,460.72. The appellate court opinion concludes as follows (at pages 180-181, 11 Cal.Rptr. at page 881): 'This court holds that in the instant cases the date of the judgments is the date of the accounting in all its parts, and that no interest is to be charged before that date, with one exception, viz: The promissory notes, which, according to their tenor and terms provide for interest at 4% per annum and for attorneys' fees. That part of the judgment will stand. So far as damages are concerned, it is clear that there was no conduct on the part of the Haddocks for which damages should be assessed. * * * The judgments in these two cases will be modified to delete therefrom all interest due Mr. Mashon and Mr. Kettering in the accounting for the partnership and the joint ventures, except interest and attorneys' fees on the promissory notes. And the judgment in the Mashon case will also be modified to strike therefrom all damages.' The phrase 'except interest and attorneys' fees on the promissory notes' undoubtedly refers to the three notes held by Mrs. Mashon, two of which were her own property. Undoubtedly the judgment was affirmed as to her: 'The promissory notes, which, according to their tenor and terms provide for interest at 4% per annum and for attorneys' fees. That part of the judgment will stand.' (P. 180, 11 Cal.Rptr. p. 881.)

The remittitur issued by the clerk reads in pertinent part as follows: 'IT IS ORDERED, ADJUDGED AND DECREED by the Court that the judgments are modified to delete therefrom all interest due Mr. Mashon and Mr. Kettering in the accounting for the partnership and the joint ventures, except interest and attorneys' fees on the promissory notes. And the judgment in the Mashon case will also be modified to strike therefrom all damages. As so modified the judgments are affirmed. Costs to appellants.' It will be noted that no reference is made to the statement (on page 180, 11 Cal.Rptr. on page 881) concerning interest on the notes and the accompanying language '[t]hat part of the judgment will stand,' also that the words '[c]osts to appellants' have been added though they do not appear in the court's opinion. Rule 26(b) of California Rules of Court provides that '* * * In the absence of such directions by the reviewing court the clerk shall enter on the record and insert in the remittitur a judgment for costs as follows: * * * (3) in the case of a modification of a judgment, for the appellant; * * *.' Rule 25(a): '* * * The remittitur shall be deemed issued on the clerk's entry thereof in the register, and shall be transmitted immediately, with a certified copy of the opinion, to the lower court or tribunal.' The opinion thus becomes a part of the remittitur (see Casner v. San Diego Trust & Sav. Bank, 34 Cal.App.2d 524, 541, 94 P.2d 65), and the ministerial act of issuance of same (Save The Trains Ass'n v. Chicago & N. W. Ry. Co., 168 Neb. 180, 95 N.W.2d 334, 336) cannot control the court's judgment. ²

A remittitur merely 'designates the judgment of the appellate tribunal which is authenticated to the court from which an appeal is taken and corresponds to the 'mandate' used in the practice of the United States Supreme Court.' (4 Cal.Jur.2d § 671, p. 562.) The interpretation of a remittitur requires that the court's opinion be consulted, especially in case of ambiguity (Riggsby v. Tritton, 147 Va. 1084, 133 S.E. 580, 581, 45 A.L.R. 280; Commonwealth ex rel. Kelley v. Kelly, 322 Pa. 178, 185 A. 307, 310; State ex rel. Reynolds v. Breidenbach, 205 Wis. 483, 237 N.W. 81, 82; Glissmann v. Bauermeister, 146 Neb. 197, 19 N.W.2d 43, 47; Beecher v. Foster, 66 W.Va. 453, 66 S.E. 643, 645; Town of Flora v. Indiana Service Corporation, 222 Ind. 253, 53 N.E.2d 161, 164; Davis v. Baum, 192 Okl. 85, 133 P.2d 889, 892; Tuttle v. Irvine Const. Co.'s Receiver, 262 Ky. 361, 90 S.W.2d 359, 361; Helton v. Hoskins, 278 Ky. 352, 128 S.W.2d 732, 734; Breuer v. Arenz, 209 Wis. 435, 245 N.W. 116; 5 B C.J.S. Appeal & Error § 1963, p. 541), and that meaning given to it which harmonizes with the court's ruling.

In this case the claims of Mr. and Mrs. Mashon were presented separately though in a single complaint; the judgments in their favor were likewise separate though in a single instrument. The one in favor of Mrs. Mashon reads as follows '* * * 3. That plaintiff Gladys N. Mashon, in her personal and individual capacity, have and recover of and from defendants T. J. Haddock, J. E. Haddock and J. E. Haddock, Ltd., a corporation, each and all of them, jointly and severally, the additional sum of $25,933.33 principal and $9,755.37 interest.' Mrs. Mashon when acting in her own right was not an appellant; she was a respondent. The judgment in the case was dual in character; the part running in her favor was affirmed and not modified; the portion in favor of the husband's estate was modified and affirmed as modified. This last mentioned judgment drew costs in favor of appellants but not the portion which ran in favor of Mrs. Mashon individually. Though contained in a single document, settled practice warrants the separate treatment of the two judgments for purposes of award of costs. (De Leon v. Pacific Mut. Life Ins. Co., 186 Cal. 488, 493, 199 P. 789; Baldie v. Bank of America, 97 Cal.App.2d 614, 217 P.2d 1011; Weck v. Los Angenes County Flood Control Dist., 89 Cal.App.2d 278, 281, 200 P.2d 806; Angelus Securities Corp. v. Ball, 20 Cal.App.2d 423, 435, 67 P.2d 152.)

We conclude that a proper interpretation of the remittitur in this case justifies and requires an award to Mrs. Mashon of her costs on appeal with respect to her establishing the correctness of the judgment in her favor upon the two promissory notes.

This conclusion is not affected by the fact that the same problem was presented by respondents upon petition for rehearing in the District Court of Appeal, which petition was denied without opinion, and was again presented to that Court by petition to recall remittitur, which was likewise denied without comment. Such orders are not res judicata and do not establish the law of the case. (See People v. Randazzo, 48 Cal.2d 484, 487, 310 P.2d 413.)

Plaintiffs appealed from the order re costs in the Kettering case as well as in Mashon. The ruling just made concerning costs to Mrs. Mashon individually affects only her case, but the other two items--cost of stay bonds and petitions for rehearing, etc.--pertain to both cases. ³

Appellants assert error in the trial judge's refusal to allow them any of the premiums paid for stay bonds on appeal which they posted in both the Mashon and Kettering cases at a total cost of $5,737.60.

Section 1035, Code of Civil Procedure, provides: 'Whenever in this code or by other provision of law costs are allowed to a party to an action or other proceeding, such costs shall include the premium on any surety bond which was procured by the party entitled to recover costs in connection with the action or proceeding unless the court determines that the bond was unnecessary.' It was held in Stockton Theatres, Inc. v. Palermo, 47 Cal.2d 469, 475-477, 304 P.2d 7; 51 Cal.2d 346, 348, 352, 333 P.2d 10,...