Fidelity & Deposit Co. of Maryland v. Whitson

California Court of Appeal Jul 19, 1962 No. Docket Nos. 25948, 25949Published

Before: Balthis

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Holding. The court held that a party who waives a jury trial in the main action cannot demand a jury for ancillary proceedings, and that a defendant lacks standing to appeal a judgment entered solely against their surety.

Issues

Whether the trial court had jurisdiction to award attorney's fees for services on appeal as directed by the appellate court.
Whether a party who waived a jury in the original action is entitled to a jury trial for an ancillary issue regarding attorney's fees.
Whether a defendant has standing to appeal a judgment entered against their surety on an appeal bond.
Whether an appeal from an order awarding attorney's fees divests the trial court of jurisdiction to enter judgment against a surety.

Disposition. Affirmed in part and dismissed in part.

Quotations verified verbatim against the opinion

“We hold that after there has been a waiver of the right to a jury in the trial of the main action, there is no right to a jury trial of an ancillary or supplemental issue”

BALTHIS, J.

Plaintiff Fidelity and Deposit Company filed an action against defendant Carl Whitson on an indemnity agreement and on March 4, 1960, judgment was rendered in favor of plaintiff for the sum of $4,853. Defendant appealed therefrom, filing an undertaking on appeal (pursuant to Code Civ. Proc., § 942), in the penal sum of $10,000 executed by United States Fidelity and Guaranty as surety.

The District Court of Appeal affirmed the judgment and directed the trial court to determine a reasonable attorney’s fee for services on appeal to plaintiff, and to add such fee to the principal amount of the judgment in favor of plaintiff.

(Fidelity & Deposit Co.

v. Whitson, 187 Cal.App.2d 751, 759 [10 Cal.Rptr. 6].)

On April 17, 1961, after notice to defendant, the trial court held a hearing and made a determination and award of reasonable attorney’s fees for services on appeal to plaintiff in the amount of $800. On April 20, 1961, the court made its order awarding said sum of $800 as reasonable attorney’s fees and adding this amount to the original judgment. Defendant appeals from this last-mentioned order.

Plaintiff thereafter made written demand upon United States Fidelity and Guaranty Company for payment of the judgment on its undertaking on appeal, pursuant to section 942, Code of Civil Procedure; demand was also made upon defendant for payment of the judgment. Nothing having been paid, plaintiff then proceeded by motion for entry of judgment against United States Fidelity and Guaranty Company for the amount of the original judgment, plus interest, costs on appeal and the attorney’s fees as allowed by the

[715]

court. After a hearing on said motion, upon notice to defendant and the surety, judgment was entered May 5, 1961, in favor of plaintiff and against United States Fidelity and Guaranty Company, the surety on the undertaking on appeal, in the amount of $6,416. Defendant has also appealed from this judgment and the two appeals have been consolidated.

Appeal From Award op Attorney’s Fees

Defendant first argues that the trial court had no jurisdiction to determine reasonable attorney’s fees for services on appeal. The District Court of Appeal specifically directed the trial court

Fidelity & Deposit Co. of Maryland v. Whitson

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BALTHIS, J.

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