Cecil v. Bank of America National Trust & Savings Ass'n

MUSSELL, J.

Plaintiff appeals from an order disallowing certain items in his memorandum of costs filed in the proceedings on his application for an order of court confirming an arbitration award. The orders of the trial court denying a motion to vacate the award of the arbitrators and confirming the award were affirmed on appeal by this court in

Cecil

v.

Bank of America,

Civil Number 5304, on May 28, 1956, 141 Cal.App.2d 905 [297 P.2d 810] and the record on appeal in that case is included herein pursuant to rule 11(b) of the Rules on Appeal.

[250]

On January 10, 1947, plaintiff E. J. Cecil transferred certain farms to defendant Western Frozen Foods Company, Inc. (hereinafter referred to as “Western”) with a written agreement and guaranty that Western would realize a certain amount from the operation of the farms within a limited period. The agreement further provided that any dispute which might arise under its terms would be submitted to arbitration, each party to appoint an arbitrator and these two to select a third. The farms failed to produce the guaranteed profits and a demand was made upon Cecil to make good upon his guaranty. On March 2, 1949, Cecil demanded an arbitration as to his liability and appointed Milo Erwin as his arbitrator. Western appointed C. Bay Robinson as its arbitrator and the third arbitrator (Willey) was appointed by the court. Cecil attempted to obtain a court order removing Robinson as arbitrator and on appeal to this court, the order of the court denying Cecil’s application was affirmed.

(Cecil

v.

Bank of America,

107 Cal.App.2d 38 [236 P.2d 408].)

On December 7, 1949, Cecil instituted an action in the superior court against the Bank of America National Trust and Savings Association (hereinafter referred to as the “Bank”) and Western. On April 14, 1950, Cecil, Western and the Bank entered into a written stipulation that the superior court action be stayed pending arbitration. The stipulation set forth the issues subject to the arbitration, but contained no provision for the payment of the costs and expenses thereof. The arbitration, after extensive hearings, resulted in an award favorable to Cecil. Western and the Bank moved to vacate the award and Cecil petitioned for its confirmation. The trial court confirmed the award on May 10, 1950, and Cecil filed the cost bill which is here involved. In it Cecil claims one-half of the compensation of the court appointed appraiser, Willey, and all of the compensation and expenses of Milo Erwin (the arbitrator appointed by Cecil). Various other disbursements for depositions, service of process and transcription were also claimed but these items were allowed by the trial court and are not here involved. The court disallowed the items claimed as compensation and expenses for Willey and Erwin, and Cecil appeals from the order of disallowance, claiming that the prevailing party in an arbitration confirmation proceeding is entitled to costs as of course; that the trial court therefore, had authority to allow any disbursements necessarily incurred; and that fees and