Metzenbaum v. Metzenbaum

• Decision Date: 10 February 1953
• Citation: 252 P.2d 966,115 Cal.App.2d 395
• Court: California Court of Appeals Court of Appeals
• Parties: METZENBAUM v. METZENBAUM et al. (two cases). Civ. 19045.

Page 966

252 P.2d 966

115 Cal.App.2d 395

METZENBAUM v. METZENBAUM et al. (two cases).

Civ. 19045.

District Court of Appeal, Second District, Division 1, California.

Feb. 10, 1953.

Milton A. Krug, Los Angeles, for appellant.

Newell & Chester, Los Angeles, for respondents.

PER CURIAM.

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...