Coyne v. Spellacy

THE COURT.

Plaintiff, as trustee for the collection and disbursement of a fund in which defendants asserted respective interests, brought this action for declaratory relief. He alleged that he had collected and disbursed about $50,000, but that because of conflicting claims of some of the parties he had been unable to distribute the further sum of $1506.36. He prayed that defendants be required to set forth their claims to this sum so that the court might direct its disposal, and also that his own fees, costs, and charges against the fund be determined and ordered paid. Separate answers were filed by the several defendants. Issue was also joined on a cross-complaint filed by defendant M. A. Spellacy, and the cause proceeded to trial. Thereafter the trial court made findings and entered judgment wherein it decreed as follows: That at the commencement of this action plaintiff had in his possession $1506.36, from which fund he paid the shares due certain of the defendants, leaving a balance in hand of $828.50; that of the latter sum plaintiff was entitled to retain $82.85 as a commission, $19.50 for costs of suit, and $150 for attorney’s fees, and the remainder belonged $314.27 to defendant M. A. Spellacy, $235.70 to defendant J. D. Thomson, and $26.18 to defendant G. A. Alonzo. These defendants were given judgment against plaintiff for the respective amounts stated. Plaintiff appealed on the judgment roll. Defendant M. A. Spellacy now moves to dismiss the appeal or affirm the judgment.

Appellant argues two questions. First, he claims that as trustee he expended the sum of $258.46, for which he should have been allowed reimbursement from the trust fund. This expense, he states, was incurred in defending a certain cause of action instigated by defendant Spellacy, through his

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assignee Farrington, in the hope of securing, at the expense of the other parties in interest, a larger share of the trust fund than that to which he was entitled. On this issue the trial court found “that the cost and expense of the defense of the suit filed

by

said Farrington as such assignee plaintiff against the plaintiff herein as defendant, Los Angeles Superior Court File No. 379-597, in the sum of $258.46, is not a proper charge against, or a deduction charge by plaintiff against the funds in his possession, against said M. A. Spellacy”. This finding is conclusive. Inasmuch as appellant has presented his appeal on the judgment roll, the presumption is that there was sufficient evidence of a competent character to support the findings. The record contains no showing, in admitted allegations of the pleadings or elsewhere, to overcome the presumption. Neither do we find any inconsistency between the court’s general findings as to the truth of the allegations of certain pleadings and its specific findings.