Metzenbaum v. Metzenbaum
| Decision Date | 04 February 1953 |
| Citation | 252 P.2d 1014,115 Cal.App.2d 771 |
| Court | California Court of Appeals Court of Appeals |
| Parties | METZENBAUM v. METZENBAUM et al. (three cases). Civ. 19349. |
Newell & Chester, Los Angeles, for appellants.
Milton A. Krug, Los Angeles, for respondent.
Motion by respondent to dismiss appeal of defendant Walter Metzenbaum.
This is but another chapter in the prolonged and bitter litigation between these parties. See Metzenbaum v. Metzenbaum, 86 Cal.App.2d 750, 195 P.2d 492; Metzenbaum v. Metzenbaum, 96 Cal.App.2d 197, 214 P.2d 603; and Metzenbaum v. Metzenbaum, Cal.App., 252 P.2d 31.
The present appeal which is sought to be dismissed is from the judgment rendered in three separate actions instituted by the plaintiff which were consolidated for trial and which were disposed of by a single set of findings and judgment.
In the first of these, Walter Metzenbaum and Fanchon Metzenbaum were named as defendants and plaintiff thereby sought recovery of damages for the malicious prosecution of a civil action. The second action against the same defendants was for the malicious prosecution of a different civil action, and the third was directed against Walter Metzenbaum and Rose Metzenbaum to set aside as fraudulent a conveyance by Walter to Rose of all of the former's right, title and interest in and to a partnership formerly existing between plaintiff and Walter then in the process of liquidation, including Walter's interest as such former partner in two certain oil royalties known as the Oulton and Surfluh or Rozier royalties. The trial court found the facts generally as alleged in plaintiff's complaints; that the actions in question were maliciously prosecuted; that as a result thereof plaintiff had sustained damage in the sum of $20,000, and that the conveyance in question by Walter to Rose was fraudulent and void as 'against plaintiff and as against the plaintiff's claims against Walter Metzenbaum in the sum of $20,000.00', being the amount of the judgment appealed from.
On March 6, 1952, notice of appeal from the judgment was filed on behalf of defendant Walter and Rose by the firm of Newell and Chester who at all times during the pendency of the litigation in the court below were attorneys of record for said defendants and who appear for them here. On March 7, said defendants, through the same counsel, filed a notice requesting preparation of reporter's and clerk's transcripts for use upon the appeal. Thereafter, on April 15, upon an ex parte application therefor by the same counsel, an order was obtained extending the time for the payment of the reporter's fees for the preparation of the transcript for a period of 30 days, and on May 16, 1952, pursuant to a motion made by the same attorneys on behalf of the defendants, a further extension of 30 days was obtained for the payment of the reporter's fees. Thereafter, the reporter's transcript, which is in three volumes containing in excess of 800 pages, was prepared, duly certified and filed in this court.
The motion to dismiss is based upon two grounds: (1) that prior to the time that counsel obtained the two orders above mentioned extending the time for the payment of the fees of the reporter their authority to act for the defendant Walter Metzenbaum had been terminated, and (2) that defendant Walter Metzenbaum waived or renounced his right to appeal by reason of the fact that he 'has sought to enforce a portion of the said judgment pending this appeal.' We shall consider these contentions in their inverse order.
The Bank of America at Fresno, California, was the escrow agent appointed to receive and disburse monthly to various parties, in proportion to their respective interests, royalties accruing to the lessors and those claiming under them from oil and gas produced and sold from the Surfluh property which has heretofore been referred to as the Surfluh or Rozier royalty. The interest therein of the former partnership of plaintiff and defendant Walter stood in the name of plaintiff alone and his one-half interest therein had been distributed to him. The remaining one-half of the partnership interest, however, was subject to a pending action in interpleader instituted by the plaintiff herein as liquidating partner against various persons who asserted an interest therein or thereto. Following the entry of the judgment in the instant action, the defendant Walter addressed a letter to the bank to which reference will hereinafter be made and it is the statements contained in this letter which plaintiff asserts constitute an attempt by Walter to enforce the judgment herein or an 'acceptance of the benefits' thereof. The letter in question, dated April 3, 1952, insofar as material here, reads as follows:
'Recently...
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Metzenbaum v. Metzenbaum
...v. Metzenbaum, 96 Cal.App.2d 197, 214 P.2d 603; Metzenbaum v. Metzenbaum, 115 Cal.App.2d 395, 252 P.2d 31, 966; Metzenbaum v. Metzenbaum, 115 Cal.App.2d 771, 252 P.2d 1014. Of the three actions now before us for consideration on appeal, the first was for malicious prosecution, being number ......