Estrin v. Fromsky

California Court of Appeal Jul 2, 1942 No. Civ. 13562Published

Before: Doran

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Holding. The court held that the expense of an expert accountant appointed by the court is a proper item of costs in an equity action and that the trial court did not err in its accounting judgment or in refusing to reopen the case for new evidence regarding tax liability.

Issues

Whether the cost of a court-appointed auditor is a recoverable item of costs.
Whether the trial court erred in refusing to reopen the judgment based on new evidence of tax liability under section 956a of the Code of Civil Procedure.
Whether the judgment for $6,000 was supported by the pleadings in an action for an accounting.

Disposition. affirmed

Quotations verified verbatim against the opinion

“Expense of services of an expert accountant, necessary for the proper presentation and determination of the case, who is appointed by and acting under the direction of the court, is properly charged as an item of costs.”

“Costs in an action in equity are matters within the discretion of the court.”

DORAN, J.

Appellant, by means of a bill of exceptions, takes this appeal from a judgment in favor of the plaintiff in an action for an accounting of the proceeds of a business venture, and from an order denying a motion to strike certain items from the plaintiff’s memorandum of costs and disbursements.

The complaint herein was one for dissolution of a partnership and for an accounting of the proceeds. Before trial of the action an additional cause of action for money had and received was added by amendment. After hearing the cause, the trial court, by an interlocutory judgment, decreed that the plaintiff and the defendants were not partners and that appellant was the sole owner of the business in question, a market enterprise conducted in the name of appellant and the D. Fromsky Markets, and that the plaintiff (respondent here) was entitled to an accounting of the books of said enterprise and was entitled to judgment for such sums as might be found to be credited to his account after the accounting of the books had been completed. The court thereafter, and on January 15, 1941, ordered a firm of certified public accountants to audit the books in the action. Included in the same minute order was the statement: “ The plaintiff is ordered to pay for

[255]

said audit.” On. April 30, 1941, the following minute order was entered: “Minute order of January 15, 1941, is ordered amended

nunc pro tunc

to further read as follows: Costs of audit by Arthur Andersen & Company to be assessable as an item of costs in this action.” After the accounting and a further hearing of the matter, the trial court found, in part, that respondent was entitled to an accounting from appellant and that the audit of the books in question indicated and reflected a credit to the account of respondent in the sum of $6,000, and ordered judgment accordingly, together with interest, costs and disbursements. The cost of the audit- was allowed respondent by the court.

Appellant bases his contention, as to the impropriety of allowing respondent the cost of the audit, upon the sole ground that the minute order of April 30, 1941, by the terms of which it was attempted to amend

nunc pro tunc

Estrin v. Fromsky

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DORAN, J.

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