Metzenbaum v. Metzenbaum

PATROSSO, J. pro tern. 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 Metzenbmm v. Metzenbaum, 86 Cal.App.2d 750 [195 P.2d 492]; Metzenbaum v. Metzenbmm, 96 Cal.App.2d 197 [214 P.2d 603]; and Metzenbaum v. Metzenbaum, ante, p. 395 [252 P.2d 31, 966] 2d Civil 19045, decided by this court January 16, 1953.)

The present appeal which is sought to be dismissed is from the judgment rendered in three separate actions instituted [772]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 Fanehon 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 Bose Metzenbaum to set side as fraudulent a conveyance by Walter to Bose 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 Bozier 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 Bose 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 Bose by the firm of Newell & 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.