# Petition for Writ of Certiorari — Lipsky v. United States > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385601_0624%3A2 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 1963 - **Citation:** 371 U.S. 953 ## Text a HIBRARY. s tie a a _ suPROME COURT, US. IN THE” =: ? at Say : “TOPICAL INDEX > pies a St * Opinions Below ae ices Ceeelaeeeneees 2 Siatement of Groands for Jurisdiction... : 2: Questions. Presettied for Review ie Spe ee oe : ea : Constitution Provisions and Statutes nvelved : sles th Solves 2 Statement of ‘the Case coe. ae JR AQUA Gitar + Federal Questions Timely and Properly Raised . sateen ars 5 } a Rohebns for Alliseeling the Writ: aah | "4 lain Paar Paani sinenereon ae | See a ee tats 8 :, roe Li dnsanra detention tba ken ahu Misono ae 8 OS RA nln em Cen K Fifth Si easaebiahin castes deesaih soisonnnndnnonnnsnsnnnsnsinannoneeten Scotch QO Conclusion Oe ces cane ee a SE ae 9 8 Appendix “A” 5.0... ceceeecepeceeeeseeenesenenteneeeteneenesensenecacess la-3a | Appemdin Bone csncnsncneernntanentntnnbnnepriete Ib-1ib I ES Srsessxcscanns ss la oetnies sactedenani tinea ae 16-74 p: TABLE OF AUTHORITIES CITED Ve oe oats * Cases : 3 as Re ae a cae : : e ea ae . eT paths one Page aa Adame % Bony: 80 Fed, Supp: 878 | SOR et ee eee f Baltimore & Ohio Ry. Ge vi U nitedeStates. 298 U.S. . yn 349 at 366 .......... pectenkoneccube ieeatctets lesen Sue eles fi- * ie / AR, : Wm: Danzer Co. v. Gulf & S. 1. Ry. Go,, 204 U. S..633 . oe. pe at ae . 8 “Midstates Hordbultural Assn. Vv. Pezin. Ry. \.. $02'U.S/- **. . 3356. 6+ S.Ct 128, sikh beacbrcats _danodst nigh sogrgesetess 5 ‘Pollard v. Bailly, 20 Wall. 320, 526. 30 L. Ea. gee Ad ) ‘ Pe | ‘ Fidelity & Depdsit ( ‘ompln of “ae land V: Bud F Fisher Co; i 161: “Cal. Ape. 2d 43B Sf... estes a Stor Be eee pores 7 “ Fidelity & Deposit Cbppily « of Mary land v. W bition, 187 Cal. App. 24 731 oc 7 RASRES SAI) NEON 7 2 Be : ‘odes ~ ia, Chapter 3, Section 4206 ........ 3 - ? o : | ; ' . ‘ e. re ae, io. os “ast ° ee a : IN THE ‘ee Court the ited Sates \ \s . October Te ‘rm, a 062 _ CARL WHITSON, : meal Coa Petitioner and Defendant, VS. FIDELITY AND DEPOSIT COMPANY . OF. MARYLAND, a ne \ | Plaintif f and Re ‘ponde nt, PETITION. FOR WRIT OF CERTIORARI g(t TO THE DISTRICT COURT OF APPEAL SECOND APPELLATE DISTRICT “STATE OF CALIFORNIA © To the Honorable Chief paitioe and Associate Jus tices of the — Court of the United States of - _ America: a Petitoner, Carl Whitson, prays that a. Writ of - Certiorari issue to review the decision of the District ‘Court: of Appeal, Second Appellate District, of Cali- _ fornia. , ). _ OPINIONS BELOW . --The judgments and orders. of the t#ial court are unreported and. are printed in Appendix “A” hereto. The decisions of the District Court of Appeal are re- ported in 187 Cal. App. 2nd 751, 10 Cal. Reptr. 6, and ‘in 205 A.C.A. at page 786, and are printed in Ap- pendix “A” & _ hereto. 7 STATEMENT OF GROUNDS FOR JURISDICTION. The last decision by the District Court of Appeal, Second Appellate District, of California was entered es on. July 19, 1962. Petition for Rehearing was. denied on August .14, 1962:. Petitions for Hearings by the. Supreme Court of California were denied. The last such Petition for Hearing was denied by the Supreme Court of California on September 11, 1962. It is believed that jurisdiction of this Court is under 28 U.S.C. Section 1257. (3) (since a right to due pro- \ - cess of law is claimed under the Fourteenth Amend- . meet of the Constitution of the United States). / QUESTIONS PRESENTED FOR REVIEW © ‘Is a litigant denied due process of law when . fee of the state courts fail.and refuse to consider ~ and follow the decisions’ of the Supreme. Court of the United States, Federal Courts, and > the decisions of the Supreme Court of that State; and where such de- . cisions’ are uniform and -have- been in 1 effect for over one hundred years? mt ak 2. Is it due process of law for defendant to be held 2 liable after’ -the ‘statute of limitations have run ina special. statute in regard public school lunchroom con- - \ ee ‘| 4 .—d—.. struction, and where the waiver of the time to sue, - get out. in such statute, is waived by the attorney for . plaintiff only, and wéthout the know wet or cdnsent oe defendant? . 1% Bit due process ‘of law for state julien to fail and refuse to apply and. use simple arithmetic sub- . traction of figures on written documents fur nished by plaintiff i in order to hold defendant liable? 4. Is it equal protection ef the law, under the . Fourteenth Amendment, for the same Justice to apply rules of law to the same statute in directly sopposite results, in order to hold in favor of the same plaintiff? Bs ~f demand for a jury’trial at the/second trial, w here no demand was made for such jury trial at the first trial? : GONSTITUTION PROVISIONS AND _ STATOTES INVOLVED ‘Chapter 3, Section 4206 Government ‘Code of. Cali- . fornia provides as follows: “Suit against the surety or sureties ¢ on thé con- tractor’s bond may. be brought by any claimant, ‘6 Bb it ¢ due process of law to deny ‘defendant's °-"" or his assign, at any time after the claimant has ceased to perform labor or furnish material, or both, and until the expiration of six months after, _the period in which. verified-claims may be filed | as. provided in Section 1192.1 of the Code of Civil Procedure. (As amended Stats, 1957, e 66, Pp = 2.)” : The Fourteenth Amendment ‘to the Constitution of | the United States 1 is involved herein. oe ae \ © *- te ‘ —— | STATEMENT OF THE. CASE » On December 19, 1949 one F.L. B. Curtis, as a - "° eontractor entered into a written contract with the _ Long Beach, California, School District to build a ‘public schapl lunchroom building, and on December 29, 1949 plaintiff made a labor and material bond. for the contractor. On February 17, 1950 _ plaintiff requested petitioner to sign, an indemnity agreement, which he did: After the buildings were completed and ‘notice of completion filed February 21, 1951, all. - of the sub-contractors: and material men filed claims within. thirty days, as provided by Section 1192.1 Code of Civil Proeedure of California; and the School Board withheld the final payments from the contractor. _’ ~All furids’withheld by the School Board and funds. - paid“in by the contractor, in the total-sum of $22,- 171.80-were paid to and turned over to plaintiff to pay all outstanding claims amounting to a total-of $20,- 467.10. All‘claims were paid in full from sueh funds, except one claim for $3,313.45 ‘which plaintiff tried . ‘to settle for some $2,500.00 and settlement refused. ~ - A> written document signed by the attorney~for . plaintiff entitled “Notice to Creditors” of Contractor F. L. B. Curtis, and among other things, it is stated > therein that “Fidelity’and Deposit Company of Mary- land hereby waives the period of time within which suits must be filed.” This document and attempted waiver of time to sue by plaintiff's attorney caused the last claimant to sue plaintiff herein for $3,313.45, on: April 14, 1953 (over two years after filing its claim). This suit was compromised by plaintiff on _ April 2, 1958 for the sum of $2,500.00, and later peti- &- @ a tioner was sued by respondent for ‘this. sum cud at- _ torney fees and costs. 3 . At the first trial on the merits a2 judge granted “judgment against petitioner for $4,529.05, which judgment: included two attorney fees af $1,000.00 each, plus costs. This judgment was affirmed on appeal by - the District Court of Appeal, Second Appellate Dis- - . trict; and the case remanded to the trial court to as: assess additional sum as additional attorney fees. A | Petition for Hearing in the Supreme Court of Cali- fornia was denied. At the second trial or hearing, the : same judge, after - ‘denying defendant’s motion for a jury trial, granted = judgment. against petitioner for an additional sum of — $800.00 -as attorney fees, plus all costs. This resulted. ‘in d total judgment and costs of over $6,500.00, which was appealed and affirmed by the District Court of Appeal, Second ,Appellate District of California. A ares petition for Hearing by the Supreme Court of Cali-’ | fornia was again timely filed and denied on September _ 11, 1962. ” : 4 FEDERAL QUEST! NS TIMELY AND PROPERLY RAISED At the pre-trial conference defendant raised the . question of the attempted waiver of time to sue ‘on claims and pointed out that the six months time had elapsed lorig before suit ‘on this claim was. filed, and called attention to the Holding of the Supreme Court of the United States, in Pollard v. Bailey, 20 Wall. 520, 526, 22 L.Ed. 376, at 378; Wm. Danzer Co. v. Gulf &.S. I. Ry. Co., 264 U.S. 633; Midstates Hor- ticultural Assn. v. Pénn, Ry. its 302 U.S. 356, 64 ‘ee ae « 6 —0— S.Ct. 128; ‘aed v. Atel Ys, 80 Fed. Supp: 878. All ; _ of these cases, it was pointed out, hold and have for over, _ one-hundred years held that the lapse of, time, not _only bars the remedy, but destroys the liability, and — ‘cannot be waived. There was no record képt of this conference but the same points were again raised by Motion for Pre-Trial Hearing on Special Defenses ; ’ this motion was denied. (Rep. Tr., p. 16; Vol. I; Cer. Rec.) The above cases and .others holding that where a statute creates the right of action and sets the time within which suits must be started, the terms can- ‘not be waived for any purpose by any party, were cited and pointed out at every opportunity, ‘and on every occasion. In each instance the judges disregarded such cases and refused to follow the settledlaw. = The District Court of Appeal-held and decided that the Statute’of Limitation set in the above statute had. "in fact expired, but by the waiver signed by plaintiff’s attorney it was properly waived in such manner as to hold defendant liable (Appendix A, page 2a). In- _ _ the opinion of the District Court of Appeal, Second oO District, we find the following: “Tt is conceded that Harbor Boat action was’) filed after the Statute of Limitations against “respondent as surety (six months) had run (Govt. Code, Sec. 4206), and the plaintiff in that*law- __ suit was properly in court only: because of a “waiver of time (within which to sue) extended it by respondent through its attorney, Mr. Crider.” | The fact that all funds were turned over to plaintiff .. to pay claims and the fact that more than ample funds were under its control to pay all claims, in- . . pon, a _ eluding Herbor Boat. claim, was pointed out to the State Courts at the first trial (Rep. Tr., pp. 44-45). The judges refused to apply or ‘use simple arithmetic subtraction in-order to hold.defendant liable. This, it was pointed out, is not due process of law. The record shows, and plaintiff admits that it received $22,171.80 to pay“all claims, including Harbor Boat claim, in total amount of $20,467,10, or $1,714.70 more tHan needed to pay all claims (Rep. Tr., p. 47, Vol. I, Certi- fied Record). } | It was pointed out to the State Court, in opening briefs, that the same Court had held .the terms of | _ Section 4206, Chapter 3, Government Code of Cali- . - fornia, could not be waived, Fidelity & Deposit Com- .nany of Maryland vs. Claud Fisher Co., 161 Cal. App. 2d 431, yet the very same Justice of the State Court held in Fidelity & Deposit Company of Maryland vs. Whitson, 187 Cal. App. 2d 751 (the instant case) _ that such terms can be waived. This is not equal pro- “ tection of the laws under the holding of this Court in _ Baltimore & Ohio Ry. Co. v. United State: 8, 298.U.S. © 349, at 366. : ‘ No demand for trial by jury was made at the first trial, but at the second trial a jury was demanded and refused.(Rep. Tr., p. 7, Vols 2, Cer. Rec.); It was: pointed out that such denial was denying defendant due process of law under the Constitution. e REASONS FOR ALLOWING THE WRIT The amount of money involved herein is not large fora multi-million dollar surety company such as plain- tiff buf is a sizeable sum to petitioner. However, sev- ap! . ~ law of the land as defined and established by this Court, — and which have been established and settled for over one hundred years, that a special Statute of Limitations . cor ave eral iaiedeia principles of law, and Federal questions | of importance are involved, which should, it is urged, © givé this eourt jurisdiction to issue the writ. FIRST A public school lunchroom construction contract is in- volved; hence the Federal Aid to school lunch program is involved. No case in point on this question has been found, and since this is an established and grow ing program the law should be announced and — lines - g | established by this Court. ‘fits “ SECOND oe | This Court is not called upon to: -&ercvise its juris- diction to correct errors, as such, of ‘a State ‘Court. However, it is called upon and urged to protect the constitution rights of petitioner which have been clearly violated by the State Courts in refusing to follow the cannot be waived for any purpose or for any time. THIRD It would seem ‘clear, though no case has been found to sustain stich a theory, that when, as happened here, _ state judges fail and refuse to apply simple arithmetic subtraction ‘in cases before them, such action parives the party of due process of law. FOURTH | A trial by jury, in a case at law such as we have here, is guaranteed by the Constitution of the United States, and the Constitution of California. Such jury trial is : a. waived where no demand is made, as happened at the first trial. However, at the-second trial, where more _ damayes were added to the judgment for additional - attorney feos, a jury trial was demanded and refused. Hence the State Court has held that.a waiver of jury at the first trial is a waiver of such jury trial at any | subsequent trial (Appendix “C” p. 3c). Thus a state - . court has. decided a federal question of substance (right to trial by jury) not theretofore determined by - this court, or has, decided it in a way probably not in . accord with applicable decisions of this court. | FIFTH When. a Statute of Limitation has run.in his fav or, a property right - is ¢reated thereby, which cannot be ‘taken from him — reesei: due process of law under the Constitution. tg a _— el —— - CONCLUSION Your petitioner respectfully submits that the Writ of’ ‘Certiorari should issue’ to the end. that this Court may review the decision of the District Court of Ap- ‘peal, Second District of California, - and determine - whether ‘the defendant has been denied .any rights guaranteed by the Fourteenth Amendme nt to the Con- stitution of the United States. - ‘ — —-.,——— Respectfully submitted, CARL WHITSON - _ Petitiover, in Pro. Per. —la— ” APPENDIX “A” ) IN THE SUPERIOR COURT OF THE: ; ~ STATE OF CALIFORNIA. “IN AND FOR THE COUNTY OF LOS ANGELES No. 711,587. 2! . : JUDGMENT = FIDELITY AND seenie COMPANY OF MARYLAND, a Corporation, . a Ps ie * Plaintiff, . ae vs. - CARL WHITSON, | . ao at Defendart. ~The above entitled action came on regularly for trial on February 11, 1960, and was continued for :trial and was tried on February 15, 1960, and on February _ 16, 1960, in Department “G" of South Branch (Long Beach). of the above entitled Court, Honorable Beach Vasey, Judge presiding, without a jury, a jury having been expressly waived. Plaintiff appeared by its -at- torneys, Sims, & Wallbert, by Maurice H. Wallbert, Esq., and Carl Whitsori appeared in Propria Personam,- and evidence both oral and documentary having been introduced and the case having been argued and sub- mitted for decision, and the court having heretofore ‘made and caused to be filed herein its written Find- ings of Fact and Conclusions. of Law, and being fully advised in the premises: 2a Now. THEREFORE, by reason of the law and findings: of fact. aforesaid, IT IS HEREBY OR- a DERED, ADJUDGED AND DECREED: That Plaintiff Fidelity, and‘ Deposit Company of Maryland, a corporation, have and recover of and - from the defendant, Carl Whitson the sum of FOUR THOUSAND FIVE HUNDRED TWENTY-NINE |. * AND 05 100 DOLLARS. ($4,529.05), together with - interest on the sum of $2,500 at the rate of 7°, per annum ig Apr Ne 1958, qr interest ‘in the sum + of $......0.., malg a total judgment in the amount. _ SP Wicntdecace apes » together with a costs in the sum Of $...........e ; THE CLERK IS HEREBY ORDERED TO - ENTER THIS JUDGMENT . ' DATED this 2nd day of ‘March, 1960. BEACH VASEY eo: Judge of the Superior Court ; ' (THE. PART OF THE LAST JUDGMENT. APPEALED FROM IS BELOW:) | ‘The Court finds and determines that a reasonable hoe | attorney’s fee for services on appeal to plaintifff Fidelity and Deposit Company of Maryland, a corpo- ration, is the sum of $800. NOW, THEREFORE, by reason of all of the fore- - going, it is hereby ordered, adjudged and deereed, that there be, and there is hereby, added to the amount of the judgment heretofore rendered and entered in the above entitled action in favor of plaintiff Fidelity . ‘ and Deposit Company of Maryland, and against de- : ae fendant Carl Whitson, the sum of $800 - as and for’ reasonable attorney’ s fee to plaintiff for services on ~ appeal, thereby making a total judgment in favor of plaintiff Fidelity, and Deposit Company of Maryland, a corporation, and_against Car] Whitson, in the sum _ of $5,653.72, together with costs, as provided by law, . — and. as heretofore entered on the judgnient,. together with interest: on the ‘sum of $4,853.72 at the rate-of . + 7 per annum from March 4, 1960. Sree this 20th day of April, 1961. BEACH VASEY Judge of the Superior Court | » —lb— v APPENDIX “B” IN THE DISTRICT COURT OF APPEAL ~ OF THE STATE OF CALIFORNIA | ~ SECOND APPELLATE DISTRICT - DIVISION. ONE . ~ CIVIL No. 2as6g" FIDELITY AND DEPOSIT C OMPANY _ & F. MARYLAND, a Corporation, | Plaintiff and Ke sponde nt} ee VS. | ' ‘CARL WHITSON, : eater ae ~ . Defendant and Appellant. APPEAL from judgment of Superior Court of Los Angéles County, Beach Vasey, Judge. Maurice H. Wallbert for respondent, - Carl Whitson, on propria persona, for appellant. Plaintiff’s action sought to recover from defendant, ‘as indemnitor under a contract of indemnity, the sum — of $3,529.05 plus interest, reasonable attorney’s fees. and costs. Of this sum $2,500.00 represents monies paid by plaintiff as surety in compromise and settle- ment of a claim asserted undei: a labor and material bond ‘executed on a construction job for Long Beach Unified School District; the . balance -consisted of $1,000.00 paid by plaintiff to its counsel for services - - —2b— rendered in connection with matters said to have been covered by the contract of indemnity, and $29.05 _. expended in court costs. The trial court réendered/judg- ~ ment as prayed for, together with an additional award .. of $1,000.00 counsel fees for maintaining theinstant |, | action. Defendant has appealed from the judgment; - plaintiff asks this court, in event of an/ /affirmance .- and pursuant to a pertinent, paragraph of the con- tract, for an order awarding, attorney’s fees on appeal. | -. California Viking Sprinkley Co. v. Ch ey, 182 A.C. - 648, 635. The salient facts, either admitt School District’ to construct a Junch room assembly. building at.a na med. Long Beach elementary school ; on December 22, 1949, and in connection with such contract, Curtis requested plaintiff to execute and : furnish the performance and labor and material bonds ~ required by law (Gov. Code., Secs. 4200 et seq.) ; at or about the same time defendant also requested plain- ‘tiff to exgeute for and on behalf of Curtis the required bonds, agreeing to furnish plaintiff with an “Agree- ‘ment of Indemnity” in cMnection therewith, which agreement was subsequently executed by- defendant on February 17, 1950; following his entry upon the job contracted for; Curtis neglected to pay numerous claims of laborers, material men and subcontractors - who, in due time, asserted their claims against plain- tiff; defendant was ‘advised by plaintiff that these claims were ‘being asserted; plaintiff was required to, and did, employ counsel with respect to the pro- by defendant or otherwi ise found to be true, aré as follows: On De- cember 19, 1949, one Curtis, as contractor, entered’ into a written contract with the Long Beach Unified ese cessing of the aforesaid claims, Ml of. which were paid, save one, from funds’ held by the, school district or contributed by Curtis; the one exception just men-. | tioned, that of Harbor Boat Building Company foxy -- labor and material (plus _ attorney fees and costs), , becan re the subjéct ‘matter of a lawsuit ‘and was set- - tled before trial for $2, 500. 00,> for which sum (and /. counsel fees in connection therewith) this action seeks’ _ reimbursement. Finally, the following matters alleged — in the complaint were admitted by the failure of de- ‘fendant: to. deny; on February 27, 1951, defendant - ‘ practice in\ California. Oe ° *\ # instituted an action against plaintiff seeking declara- tory relief respecting his liability under the-‘“Agree- ment of Indemnity’’; plaintiff (as a defendant in said action) employed counsel to repr esent it, and became — obligated to. pay reasonable attorney’s fees “on motion _ of -plaintiff, said saction was subsequently dismissed. for lack of prosecution. Appellant’s briefs are in the nature of a “shotgun” attack on the judgment below; contrary to settled principles of appellated practice, they have placed an undue burden on. this court to ascertain the exact points contended: for?;. we have determined, however, that appellant basically is claiming that the evidence is insufficient to support the various findings, of the. trial court. The claim is without mer ‘it. In the _ diseussions which follow,: we shall give our yeasons for the conclusion reached, touching upon such of . appellant’s points as require comment., : The evidence amply supports e finding that an indemnity agreement was executed‘and delivered by 2 Appellant is a licensed member of the Oklahoma Bar although , che ce im Califor in' that states he never sought admission to * a > —4b— appellant to respondent. Robert Hetch, employed by respondent for approximately thirty-three years, testi- fied that he and a fellow employee met appellant at a Long Beach used car lot; then operated by appellant, about one week before the. bonds on the school job _ Were executed; they told appellant that their employer _ was reluctant to proceed “without his (appellant) being in the picture”; appellant stated then or later’ (but prior to the execution of the bond) that-he would - furnish an indemnity agreement to respondent on the particular project; Mr. Hetch also testified that - respondent would not have executed -the bongs except ' for appellant’s- promise in thjs connection. The agree- ment itself was introduced into evidence; it bears the signature of appellant and Curtis, dated February 17, 1950,-the signature being acknowledged before a . notary the same day. Shown the original court file in the declaratory relief action filed by him against . - respondent, appellant. testified .that he signed the verification in blank (as was his practice when he ; was a party to a lawsuit); his attention-was directed to paragraph VII of the complaint therein reading as follows: “At. the time of the execution of the faith. ful performance bond mentioned in paragraph VI above, the defendant Fidelity & Deposit Company re- quested and obtained from plaintiff his agreement to indemnify said defendant from any loss that:-he might _ suffer as a result from being held liable on said bond’’; as to the foregoing allegations,- appellant stated: o ‘ think thgy are generally true. I think the arnount is true and I think that one is true”. There was evi- dence that the agreement was returned to. appellant to respondent, the face of the instrument bearing © the imprint “Contract Dept. Feb. 27, 1950.” fos hie a Appellant contends that there was no consideration for the agreement; he argues that the “Alleged Agree- ment of Indemnity was signed and dated . . : about two months after the bond to pay labor and material was executed” hence consideration failed in that the in- _ demnity contract was not executed simultaneously with the principal obligation, citing 42 C.J.S, 571, See. 6(2); further, he asserts, there was no compliance with Sec- tion 2793, Civil Code, providing that’a surety obligation . must bein writing. First, appellant’ s reference to Sec- tion 2793, supra, pyesumably is based on the oral un- derstanding between the parties. in December of 1949 pursuant to which the written agreement was entered into; since the oral: guaranty was later acted upon and fully executed, the point is without merit. (Solo- mon v. Ellis, 34 Cal. App. 2d 672, 679) Second, the rule cited by appellant (42 C.J:S. page 751, supra) also declares that.a written agreement to indemnify need not be executed simultaneously with the contract | of indemnity if it be executed in pursuance of a prior - agreement therefor. (Fidelity and Deposit Company of Maryland v.-O’Bryan [Ky.] 202 S. W. 645, 646. [cited by appellant]; Title Guaranty & Surety Co. vs. Packard Co., [Wash.] 134-P. 812; 167 A.L.R. 1184- 1185, citing generally McDonough v. Chu Chew Shong, 21 Cal..App. 2d 257). There is here, of course, evi- | -dence of a prior agreement pursuant to which the . contract in suit was subsequently executed; it also . appears that appellant neglected to plead lack or fail- - ure of consideration as an affirmative defense and | he is now foreclosed from ur ging the question. (Wil- ore * - jiams v. Kinsey, 74 Cal. App. 2d 583, 603.) SF Next. the trial court found that ‘respondent suffered ih. -a loss,‘ reimbursable under. the provisions of the con- tract of indemnity, by payment of the sum sued for; ; specifically, the court found that the compromise and | settlement of the Harbor Boat Building lawsuit by payment of $2,500 was entered into in good faith _ and upon recommendation of its counsel and in the " honest belief that respondent. was liable to said claim- ant, that respondent paid its counsel $1,000 for serv- ices rendered in the processing of ‘claims connected with the scheol job including the Harbor Boat Com- pany settlenient as well as the defense ‘of appellant’s © declaratory relief action, and that such sum was rea-_ sonable fee. An indemnity agreement is to be con- strued like any other contract with a view to de termining the actual intentions of the parties; no. artificial rules apply. (United Air Lines, Inc. v. West- _ ern Air Lines, Inc., 132 Cal. App. 2d 308.) The perti- nent paragraphs of the contract of indemnity con-— tains the following provisions: In paragraph Second, defendant agreed to.indemnify and hold harmless the _ plaintiff from and against any and all loss, liability, damag@, costs, counsel fees, charges and expenses of whatever nature or kind which the plaintiff shall or may at any time incur, sustain or be put to for or by reason or in consequence of the execution of the . bonds which were executed by- plaintiff ‘in connection with the Burnett Elementary School job; in para- . graph Eight defendant agreed to* and did waive all notices of any-default or any. liability on the part of defendant as indemnitor under the contract of in- demnity; Paragraph Tenth provided that in the event any claim or demand made upon plaintiff by reason of bonds referred to, or any of them, plaintiff shall be at liberty to pay or —_—- the same, and —~Th— vouchers *or- other evidence of payment, compromise or settlement of any claim, demand_ liability, cost, charge, expense, suit or judgment by reason of said bonds shall be prima facie evidence of the. fact and of the extent of the defendant’s liability as indemnitoy under the contract of indemnity to the plaintiff; para- graph Sixteen prov ides, in part, that plaintiff shall have aright to apply: to the court in which any action might be brought against plaintiff -as surety under the bonds in question for an order making the de- _fendant, as indemnitor, a party defendant thereto; paragraph Seventeen provides that the obligation evi- denced by the contract. of indemnity shall be liberally construed so as to fully protect and indemnify the plaintiff. . Respondent's | dip aft; a ideas copy of which was admitted into evidence by’stipulation, established pay- ment by respondent of $2,500 in settlement of the Harbor Boat Company law suit; a draft to the order of Joe Crider, Jr., respondent’s attorney, in payment of $1,000 counsel fees and costs ($29.05), was like- wise introduced into evidence by stipulation. Under the provision of ‘paragraph Tenth, the foregoing ex- hibits constitute prima facie proof of the facet ‘of such payment and the extent of appell ant’s liability; these provisions, it appears, have the s ee | “law (17 CUS., ‘Contracts, pp. sa ote 89) in- deed, there is authority support ing ‘the validity of pr ovisions that vouchers or other evidence of payment shall be conclusive evidence thereof upon showi ing that » payment was made in good faith. (42 C.J. S., Indem- nity, p. 629, See. 35 [c]). Mr. Crider, an attorney with some fifty yearsrof experience in the field of surety- —8b— ship law, testified that- he could- not see any defense ° to the Harbor Boat case: “I dickered with them and we didn’t get any plaee”. Appellant did not negative or rebut Mr., Crider’s testimony on the quéstion of good faith, and the evidence otherwise supports the finding that “‘said compromise and settlement was entered into in. good faith by plaintiff-and upon recommendation of its counsel in said proceeding and in the. honest belief that plaintiff was liable to said claimant . . .” Appellant makes the point that para- graph Sixteen made it mandatory upon “respondent to apply to- the court where such action was pending -foy an order joining appellant as a. party defendant therein; the pertinent paragraph did not require that — | | “respondent pursue such remedy although it had the - right to apply for an order of joinder. Further on the finding that respondent suffered-a _ - loss, appellant argues that it was incumbent upon re- spondent to allege and prove that it was legally liable, that -a judgment had been secured against it, the amount of such judgment.or that the fact that the judgment had been paid. The law is to the contrary. An indemnitee is not bound to submit to suit before paying the claim; of course, if he pays without such suit, he must prove that he was liable.for the amount thus paid in order to recover from the indemnitee. (Carpenter Paper Co. v. Kellogg, 114.Cal. App. 2d 640, 651). So where: there is no trial and no judgment ~ establishing liability, but a settlement of the litiga- tion has been made, the settlement becomes presump- tive evidence of the liability and the amount thereof, - which presumption is subject to being overcome by _-proof. (Lamb:v. Belt Casualty Co., 3 Cal. App. 2d 624, a 631-632). It was for the tr: ial’ court to determine whether the. presumption just mentioned Was oyer- . come in the case at bar; its determination in the record, favorable to respondent, is binding on this -ecourt. et > A deasevatiiattoin of appellant’s liability, or that of any indemnitor,: must nevertheless be controlled by —— the rule that a voluntary payment made by” the in- ‘ demnitee, without regard to its uae is not re- -— eoverable. (Southern Cal. Gas Co. v. Ventura Pipe Line Co., 150 Cal. App. 2d 235, 257), It is ‘concedéd that Harbor Boat action was.filed after thé statute of limitations against respondent as surety (six ’ months) had. run (Govt. Code, Sec. 4206), and the plaintiff in‘ that lawsuit was properly in court only because of a waiver of time .(withtn which to sue) extended it by- respondent through its attorney Mr. Crider.’ There was testimony by Mr. Crider. that. numerous:claims- were asserted against his. client as surety and that many of the claimants were threaten- . ing to file suits—#in actions of this kind, Section 4207 of the Government Code provides for an award of attorney’s fees to the prevailing party. Mr. Crider testified that it was sound suretyship practice to ex- tend time for the filing of suit on such claims in. ‘order to. avoid. lawsuits as well as the additional ex- ~ pense incident to attorney’s fees recoverable under the government statute. Respondent, of course, had a duty to minimize the loss of its indemnitor; further- -more, it seems that the wisdom of Mr. Crider’s de-“ cision. was demonstrated by the fact that all claims _. Save that of Harbor Boat Company, were settled. ‘- without the necessity of a-lawsuit. Irrespective of the | —10b— | realities of the situation, Section 4206 is a statute of limitation (People v. Continental Casualty Co., 118 Cal. App. 2d 133, 135) and may be waived by the “party entitled to assert the same. (Bon v. Watson, / 130 Cal. App. 2d 24, 36).” _ Respondent properly maintains, in ‘response to, a ‘contrary claim by appellant, that the present action was not barred by the four-year period embodied in Section 337, subdivision 1, of the Code of Civil Pro- — cedure. The four-year period commenced to run when ~ respondent sustained its loss, namely, the payment of the sums herein sued for (Globe Indemnity ‘Co. v. Larkin, 62 Cal. App. 2d 891, 894); the institution-of ° _ the instant action was within that period, Finally, as to the matter of attorney’s fees the con- tract of indemnity provided therefor, and the sole question‘ before us’ is the reasonableness ‘of the sum of ($1,000) paid to Mr. Crider by respondent prior to the filing of the instant action and the additional >. award of ($1,000) made by trial court, for services in eonnection with the instant litigation. Mr. Crider testified as to-the nature of Services rendered re- — ‘spondent: the processing of various claims, extended negotiations for settlement of Harbor Boat. Company lawsuit which represented ‘a “potential loss of $6,148” - and defense of appellant’s declaratory relief action. © Where trial court has fixed the compensation of .an |. attorney, its determination in that respect will not be disturbed unless there is a plain and palpable abuse of diseretion (Kurland v. Simmons, 126 Cal. App. 2d 79, 82} which, in the present case, has not been made ~. to appear: Appellant’s reliance on Byron Jackson Co. v. Woods, 41 Cal.. App. 2d 777, is misplaced whére ‘ ih there was a voluntary payment for defending a suit : caused by the iridemnitee’s own wrongs; the case is * factually dissimilar. As for the award of fees for the maintenance of the present action, appellant does not: ‘question’ that he-istiable..therefor, _under paragraph ° Second of the contract, but he does maintain that “the oe award is excessive. Again, the familiar rule is ap- _. plicable that it is for the trial court to judge the reasonable value of legal services ; the award of $1,000 Was ‘not unreasonable under acce pted criteria ap plicable here. As indicated in the opening paragraph ‘of this. opinion, respondent is also asking this court, in event of ah affirmance, for an order awarding additional attorney’s fees on appeal. Paragraph Second of the contract panes for such fees, which. provision: is also applicable to services se ae the bond pursuantgo Section 942, Code of Civil Pro- cedure, and not against defendant. The latter is not a party aggrieved by it and no appeal ‘theréfrom may. be taken by him (Section 938, Code of Civid Procedure) for that reason such _ purported appeal should: ‘be . + dismissed. eT ‘Even assuming for the purposes of discussion that an appeal would lie, defendant’s contentions on ap- peal are without merit. The judgment against surety could have been made. - ex parte (see Chas. F. Harper Co. v. DeWitt, ete. Co., 10 Cal. 2d 467, 469). Here, however, a motion was made and notice given both the surety and defendant. - Prior to the hearing, defendant wired from Oklahoma requesting a continuance of the hearing of the motion which was deriied and of which denial defendant com- plains. We see-no.abuse of. discretion by the trial court as such notice of the hearing was given to the surety and defendant by courtesy only. Under the terms of the undertaking on appeal the surety consented to entry of judgment without notice. E : * Defendant further argues that tr ial court ha ae jurisdiction to enter the judgment against the surety on undertaking on appeal because previous thereto, the trial court had made its order’ regarding at- torney’s fees and defendant had filed his notice of appeal therefrom. Defendant argues that the appeal from the previous order divested: the trial court of jur isdiction. How ever, ‘the appeal filed " defendatt. from the ae order deter mining reasonable attorney’s fees, pursuant ~ . to diréctions of the District: Court of Appeal. did not oe? 7 —((C-— , divest the Superior Court of Jurisdiction with respect - - . to collateral matters; namely, matters not embraced within the subject of the or der determining reasonable — . attorney’s fees for service On appeal. (See Neff’ v. Ernst, 48 Cal. 2d 628 , 633-6: 54.) ; | _ The other points made by defendant have no merit -and are not pertinent to the orders appealed from. Plaintiff made a request for additional attorney's tion for services on the present appeal. While the request has merit, it will be denied in the interest of having the litigation finally terminated. However, in the event of further appeals or proceedings by de- fendant, it should be noted that this tlh by plain- tiff is denied without prejudice. . The order aw arding attorney’s fees is aff irmed ; the . purported appeal from. the judgment against U nitéd States F idelity and Guar anty Company is dismissed. Q ee % Ps ise ‘Balthis, ¥ We concur :. Burke, P. J. Jefferson, J. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385601_0624%3A2. Public record. Not legal advice.