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229
Cal. App. 2d 735, *; 1964
Cal. App. LEXIS 1040, **; 40
Cal. Rptr. 587, *** F.
BRITTON McCONNELL, as Insurance Commissioner, Plaintiff and Appellant, v.
ALL-COVERAGE INSURANCE EXCHANGE AUTOMOBILE AND FIRE et al., Defendants and
Respondents. (Two Cases.) Civ.
Nos. 27739, 27740 Court
of Appeal of California, Second Appellate District, Division Four 229
Cal. App. 2d 735; 1964 Cal. App. LEXIS 1040; 40 Cal. Rptr. 587 September
16, 1964 SUBSEQUENT
HISTORY:
[**1] A
Petition for a Rehearing was Denied October 14, 1964, and the Opinion was
Modified to Read as Above. Appellant's Petition for a Hearing by the Supreme
Court was Denied November 10, 1964. Mosk, J., did not Participate Therein. PRIOR
HISTORY: APPEALS
from orders of the Superior Court of Los Angeles County awarding attorneys' and
auditors' fees and advances against costs pending a hearing on the merits of a
conservatorship proceeding initiated by the Insurance Commissioner. Alfred
Gitelson and Philip H. Richards, Judges. DISPOSITION:
Affirmed. Motion to augment record denied. CORE
TERMS: conservatorship,
receiver, reasonable grounds, delinquent, conservator, conservatorship
proceeding, duty, instituted, awarding, petition to terminate, resisting,
allowance, receivership, reasonably necessary, findings of fact, full hearing,
jurisdiction to award, expenses incurred, sound discretion, orders appealed,
abused, attorney-in-fact, preparation, stockholders, appointment of a receiver,
special proceeding, judicial ruling, absolute right, general duty, former act COUNSEL:
Stanley Mosk and Thomas C. Lynch, Attorneys General, and Arthur C. de Goede,
Deputy Attorney General, for Plaintiff and Appellant. Neil
Cunningham, Wright, Wright, Goldwater & Mack, Loyd Wright, Edgard R. Carver,
Jr., and Rodney R. Buck for Defendants and Respondents. JUDGES:
Kingsley, J. Burke, P. J., and Jefferson, J., concurred. OPINIONBY:
KINGSLEY OPINION:
[*737] [***589]
Appeals have been taken by the Insurance Commissioner from two separate orders
of the superior court awarding attorneys' fees, auditors' fees and advances
against [*738] costs pending a
hearing on the merits of a conservatorship proceeding [**2]
initiated by the commissioner pursuant to section
1011 of the Insurance Code. n1 By stipulation of counsel and permission of
this court, both appeals have been consolidated for briefing and decision. - - - -
- - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - - n1
Unless otherwise indicated all references are to the Insurance Code. - - - -
- - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - - All-Coverage
Insurance Exchange Automobile and Fire is an organization composed of persons
who exchange reciprocal insurance contracts with each other. All-Coverage
Underwriters, Inc., has been the attorney-in-fact for the Exchange whereby it
solicits and processes applications for the exchange of insurance contracts for
the subscribers of the Exchange, and receives and collects for and in the name
of the Exchange all premiums for insurance and membership fees. On
November 21, 1962, the commissioner, pursuant to section 1011, filed with the
court below his verified "Application [***590]
for Order Appointing Conservator." The application alleged that an
examination of the affairs of the respondents had been made, and that sundry
conditions [**3] had been found to
exist as grounds for conservatorship. The application also requested that the
commissioner be allowed to take possession of all property and assets of
respondents, and to conduct so much of the business as the commissioner might
deem appropriate. An order to this effect was granted on November 21, 1962. n2 - - - -
- - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - - n2 Upon
the filing of such a verified petition the superior court is required to issue
such an order. (See Financial
Indem. Co. v. Superior Court (1955) 45 Cal.2d 395 [289 P.2d 233].)
- - - -
- - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - - On
January 7, 1963, respondents filed their verified answer to the commissioner's
application for order appointing conservator. The answer also embodied a
petition, pursuant to section 1012, for termination of the order appointing
conservator. On January 10, 1963, respondents obtained an order to show cause
directed to the commissioner why allowance of attorneys' fees and costs on
account should not be granted. Concurrently filed with the order to show cause
was an application for an order directing [**4]
the commissioner to release to respondents a reasonable amount for attorneys'
fees and costs in connection with the preparation for hearing of the petition to
terminate the order of conservatorship. The
order to show cause came on for hearing on January 29, 1963, and the court, on
March 1, 1963, made its order allowing counsel for respondents attorneys' fees
on account [*739] as follows: $ 2,500
from the funds of the Exchange and $ 2,500 from the attorney-in-fact. The order
also recites the receiving into evidence of 21 different documents, affidavits
and declarations, exclusive of points and authorities, plus the testimony of
counsel for respondents, and found that the retention of counsel by respondents
was made in good faith and was necessary for the assertion and adjudication of
respondents' rights. The order further stated that the employment of the
auditors, Joseph Froggatt & Co., Inc., was made in good faith and was
reasonably necessary. On April
4, 1963, respondents filed a motion for an order directing the commissioner to
pay out of the assets of respondents, reasonable sums for the Froggatt audit,
for costs and expenses, and for additional attorneys' fees. On April [**5]
11, 1963, the court following a hearing on April 9, 1963, made its order
allowing counsel for respondents the sum of $ 2,500 on account of costs
theretofore incurred, and allowing Joseph Froggatt & Co., Inc., the sum of $
3,843.60 for the reasonable value of its services theretofore rendered, finding
that such services were rendered in good faith and were reasonably necessary to
enable respondents to defend themselves. The court also retained jurisdiction to
make such additional allowances as the court might later find reasonably
necessary for respondents' defense. I It is
the commissioner's primary contention that the superior court lacked all
jurisdiction to award respondents attorneys' fees, expenses or costs from the
assets of the respondent Exchange or attorney-in-fact in a conservatorship
proceeding of this nature. The commissioner places strong emphasis upon the fact
that the conservatorship proceeding instituted under section 1011 is a special
proceeding, the court having only those powers which are expressly granted to it
by statute (Caminetti
v. Imperial Mut. Life Ins. Co. (1943) 59 Cal.App.2d 476, 492 [39
P.2d 681]), and since a comprehensive statutory scheme [**6]
for handling the affairs of delinquent insurers has been set forth in sections
1010-1062, which do not provide for attorneys' fees or costs of suit, the
logical conclusion is that the court below was wholly without jurisdiction to
make such an award. The
commissioner further argues that, because of the nature of the insurance
business and the vital public interest therein, the legislative determination of
the necessity of prompt, efficient, and economical administration of the estates
of delinquent [*740] insurers makes
it apparent that the Legislature did not intend to permit the depletion of the
assets available for creditors and for [***591]
the indemnification of insureds by the payment of fees to counsel for services
rendered in resisting the conservatorship. While the commissioner's arguments
are persuasive, such is not the law in California. The
argument that the court is without jurisdiction to grant attorneys' fees in a
conservatorship of an alleged delinquent insurance company was advanced by the
commissioner in Anderson
v. Great Republic Life Ins. Co. (1940) 41 Cal.App.2d 181 [106 P.2d
75]. Although the Anderson opinion was rendered after the passage
[**7] of the present Insurance Code
in 1935, the case itself was initiated under the prior 1931 act. However, we
believe that Anderson is controlling as to the issue presented here. As
was pointed out in the Anderson case, the initiation of conservatorship
proceedings under the old act or under the present code is exactly the same. The
following quotation from Anderson (pp. 187-188) more fully sets forth
this point: "The
proceeding against the insurance company was instituted under the provisions of
the act of the legislature entitled 'An Act to Provide for Proceedings against
and Liquidation of Delinquent Insurance Corporations and Associations,' (Stats.
1919, p. 265; amended 1921, p. 1017; 1931, p. 2375; Act 3739, Deering's Gen.
Laws, 1931), which act was supplanted in 1935 by the applicable sections of the
Insurance Code. (§§ 1010-1061, art. 14, ch. 1, pt. 2, div. 1.) Such a
proceeding is so instituted by the insurance commission [sic] as an
officer of the state acting in the public interest. [Citations.] The
Insurance Commissioner's status in this respect was clearly the same under the
former act as under the present code. However, it is to be noted that
[**8] in either case the duties
of the commissioner as conservator are in the nature of those of a receiver or
trustee. Both the former act and the code expressly so provide. (Deering's
Gen. Laws, 1931, Act 3739, §§ 6 and 10; Ins. Code, §
1057.) . . . "As
far as the question here presented is concerned [the jurisdiction of the court
to grant attorneys' fees in a conservatorship proceeding] it makes little
difference whether the proceeding was governed by the new law or the old, .
. ." (Italics added.) In
reaching its conclusion that the court, in a conservatorship proceeding, had
jurisdiction to award attorneys' fees, [*741]
the above noted decision (at pp. 188, 189, 190, 191, and 193) analyzed the
problem as follows: "There
is no express statutory provision for the allowance of fees for the attorneys of
a delinquent insurance company in a proceeding of this nature. However,
appellants concede that there are some instances in which attorney's fees are
allowed by courts of equity in the absence of a contract and in the absence of a
statute authorizing such allowance, but argue also that a proceeding of this
kind instituted by the Insurance Commissioner is a special proceeding [**9]
of a statutory nature and that the jurisdiction of the court is limited by the
provisions of the statute governing the proceeding. There can be no doubt as to
the validity of such contention, but as pointed out above, under the act by
which the said proceeding was instituted the Insurance Commissioner became a
receiver of the assets of the delinquent insurance company with the powers and
duties of such receivers within this state. . . . There is nothing in the act to
indicate that the jurisdiction of the court over the commissioner in the
exercise of his duties and powers are any different from the jurisdiction
ordinarily exercised over receivers of corporations generally. There is but one
exception to be noted, namely, that the court is without power to appoint a
receiver, the Insurance Commissioner taking over that office under the act by
virtue of his authority as an officer of the state. It is clear that once the
duties are thus assumed the commissioner is subject to the jurisdiction of the
court to the same extent generally as are all receivers of corporations. . . . "Appellants
also argue in effect that because the said proceeding is an exercise of the
police power of [**10] the state the
liquidation proceeding therefore differs radically from an ordinary receivership
proceeding. Police power can never be used as an excuse for unreasonable,
arbitrary action or improper discrimination. See Carpenter
v. [***592] Pacific
Mut. Life Ins. Co., supra, at page 329 [10 Cal.2d 307 (74 P.2d 761)],
for an application of the principles involved under the present Insurance Code.
Nor does the fact that the statute under certain circumstances permits the
summary seizure of the property of a delinquent insurance company, alter the
relationship of the commissioner as a receiver once he has assumed control of
the assets. ".
. . . "Since
the act here in question constitutes the Insurance [*742]
Commissioner a receiver of the delinquent insurance company with the powers and
duties of receivers of corporations in this state, whether the insurance company
should be allowed attorney's fees in defending itself in the proceeding presents
a question no different in effect than if raised in connection with corporate
receiverships generally. Neither party has cited any California authority in
point and a search fails to reveal a California case on the [**11]
question. However, there appears to be nothing in California law, statutory or
otherwise, which precludes an application of the rule laid down in Barnes v.
Newcomb, supra [89 N.Y. 108], and enunciated in Watson
v. Johnson, 174 Wash. 12 [24 P.2d 592, 89 A.L.R. 1527], the
latter cited by respondent. That rule may be summarized as follows: "It
is a general rule that where an application has been made for the appointment of
a receiver for a corporation, attorneys' fees and expenses in resisting such
application, if made in good faith and upon reasonable grounds, may become a
valid claim against the receiver. Whether such attorneys' fees and expenses are
to be allowed rests in the sound discretion of the court, in view of all the
facts and circumstances, (Note 89
A.L.R. 1531). If allowed, the question as to the amount thereof is likewise
addressed to the sound discretion of the court. The claim of the officers of a
corporation or of attorneys employed by them to be paid out of the funds in the
hands of the receiver is not an absolute right, but it is entirely in the
discretion of the court administering the fund to determine, first, the good
faith and justification [**12] for
such application, and second, if warranted, the amount to be allowed. (Esarey
v. Pierson, 84 Ind.App. 109 [141 N.E. 87].) 'Even if it turns
out that a case is made for the interference of the state, so long as the
defense was made in good faith and upon reasonable grounds, there is apparent
justice in subjecting the property and fund involved in the litigation to
expenses incurred in discharging a general duty cast upon the corporation as its
trustees, to take all reasonable means for its protection.' ".
. . . "One
of the arguments advanced by appellants should not go unnoticed, because of the
implication therein. Appellants argue that since respondent was employed after
the insurance company had been restrained from transacting any business or
disposing of any of the assets and since the commissioner was appointed
conservator of the insurance company shortly after [*743]
respondent was so employed, the insurance company lacked the capacity to
contract and it likewise lacked the capacity to impose a lien or charge upon the
assets in the custody of the conservator by authorizing an attorney to render
services to it. If such an argument were valid, the result [**13]
would be obvious. An insurance company proceeded against by the commissioner
would be hamstrung in any effort to defend itself, the hands of its directors
would be tied and there would be no effective recourse from unwarranted official
action. If this were the case the effect would be to deny the company the right
to counsel and hence to due process of law. Since in such a proceeding as this
all the funds of the corporation are placed in the hands of the conservator, an
arbitrary denial to the corporation of the use of any portion of such funds to
pay attorneys' fees amounts to the same thing as a denial of the right to
contract for the services of an attorney, the effect of which would be a denial
of the right to defend at all." The
commissioner, in answer to the Anderson analysis above set forth,
contends that in conservatorship proceedings of this nature, unlike receivership
cases, the court does not have the funds of the corporation in its custody
through its own officer, a receiver, and, therefore, it is not free to
distribute such funds in accordance with general principles of equity. And since
the [***593] funds of the corporation
are in the hands of a state officer, [**14]
these assets are distributable only in accordance with the terms of the statute.
In
answer to this further contention we need only refer to the Anderson
case (p. 189) where it was noted that section 1057, in providing that the
commissioner is a trustee, indicates that his duties are in the nature of those
of a receiver. To hold
that the court lacked jurisdiction to make orders such as are before us would be
to countenance a de facto deprivation of property without due process of law.
While the nature of the insurance business justifies the preliminary
interposition of a conservator on an ex parte application, respondents cannot
validly be deprived permanently of their property and of their control over it
without a full-dress judicial hearing on the merits of the commissioner's
allegations. But such a hearing necessarily implies the assistance of counsel
and the expenditure of funds in preparation of a defense. The commissioner
cannot, by seizure of respondents' funds before the hearing, create a practical
impossibility [*744] of any effective
contest of his administrative findings and allegations. Totally to deny
respondents access to any corporate funds thus would [**15]
render the entire scheme invalid. The Legislature cannot be presumed to have
intended an unconstitutional procedure and the absence of any provision for
orders for counsel fees and costs from the particular statute involved must be
deemed to evidence an intent to resort to the provisions of general law
applicable to all kinds and varieties of receivership, statutory or otherwise. (Anderson
v. Great Republic Life Ins. Co., supra (1940) 41
Cal.App.2d 181, 193; cf. Pratt
v. Robert S. Odell & Co. (1942) 49 Cal.App.2d 550, 563 [122
P.2d 684].) II The
commissioner's second contention is that, assuming arguendo that the
court had jurisdiction to award respondents attorneys' fees, costs and expenses,
the court abused its discretion because there was no showing by respondents that
their application was made in good faith and upon grounds. (See Anderson
v. Great Republic Life Ins. Co., supra (1940) 41
Cal.App.2d 181, 186.) There is
no merit to this contention. The evidence of good faith and reasonable grounds
was substantial. It consisted of the verified answer to the application for
conservatorship and the petition to terminate the conservatorship. In [**16]
the course of the hearing on January 29, 1963, Mr. Neil Cunningham, one of the
attorneys for respondents, testified that he specialized in insurance law,
particularly that pertaining to regulatory licensing; that he had been retained
by respondents on January 2, 1963; that he had personally conducted an
investigation into the matters raised by the application for conservatorship and
that he had an opinion as to whether or not there was a reasonable defense as to
the matters set forth in such application. It was Mr. Cunningham's opinion, as
an expert in insurance law, that respondents had a perfectly valid defense, and
that it was also his opinion that such defense was being taken in good faith. The
affidavit of Loyd Wright, of the firm of Wright, Wright, Goldwater and Mack,
discloses, among other things, that his firm had been retained by respondents,
and that various members of his firm had spent a great many hours in research,
investigation of the affairs of respondents, and upon such investigation had
advised respondents that they had a valid defense against the continuance of the
conservatorship. Upon
this status of the record the trial court did not abuse [*745]
its discretion [**17] in awarding
respondents attorneys' fees, costs and expenses. The proceeding below, at this
stage, did not require a judicial determination upon the merits, but merely a
prima facie showing of reasonable grounds to defend. At the
hearing of this appeal, the commissioner sought to augment the record by
including the opinion, findings of fact and conclusions of law and order made by
the trial court after the hearing on the merits of the commissioner's petition
and respondents' petition to terminate the conservatorship. The commissioner
argues [***594] that, because his
position was ultimately sustained, the defense was not made in good faith. The
argument is not persuasive. The orders herein under review must be judged on the
facts before the trial court when they were made. As we have pointed out, at
that time, and on the facts then before the court, its finding of good faith was
supported by the record; that further inquiry, after a full hearing, has shown
(if it has) n3 that the commissioner was right and respondents wrong falls far
short of proving that an attempt to defend was made in bad faith, even less does
it prove that the trial court's preliminary estimate of bona [**18]
fides was an abuse of discretion. The request to augment the record by the
inclusion of subsequent proceedings must be denied. - - - -
- - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - - n3 The
final order is not before us for review and, of course, we imply no opinion as
to its correctness. - - - -
- - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - - III The
commissioner further contends that, since there are no findings of fact relative
to the issue of whether respondents' petition to terminate the conservatorship
and request for attorneys' fees was made in good faith and upon reasonable
grounds, there has been a failure to find upon a material issue requiring a
reversal of the court's order, citing Hicks
v. Barnes (1952) 109 Cal.App.2d 859, 862 [241 P.2d 648]; and 2
Witkin, California Procedure, page 1849. However,
proceedings under section 1010 et seq. are considered special proceedings
and no findings of fact are necessary. (Carpenter
v. Pacific Mut. Life Ins. Co. (1937) 10 Cal.2d 307, 327-328 [74
P.2d 761].) Furthermore, the order of March 1, 1963, recites the following,
to wit: "Points
and Authorities [**19] having been
filed, argument having been heard, and all thereof considered by the Court, and
the cause having been submitted to the Court for its decision and it being
advised in the premises and having found: [*746]
that the defense by each of said Respondents against and the retaining by each
of Counsel to represent them in such defense against said 'Application for
Ordering Conservator' is in good faith and necessary for the assertion and
adjudication of the rights of Respondents, and that the employment by
Respondents of Joseph Froggatt & Co., Inc., for the purposes as hereinafter
set forth is in good faith and reasonably necessary to enable Respondents to
defend against said Application, . . ." From the
foregoing, it is apparent that, even if we adopt the commissioner's contention
that findings of fact relative to the issue of respondents' good faith in
resisting the application for ordering conservator were necessary, the order
itself contains a sufficient finding in this regard to uphold the trial court's
decision. IV The
commissioner also contends that the trial court abused its discretion in
awarding attorneys' fees, costs and expenses since the evidence established
[**20] that the attorneys were
representing the officers in their personal and not in their representative
capacity. While it is true that the evidence on this point is somewhat in
conflict, there is substantial evidence to support the trial court's implied
finding that the attorneys were representing the officers in their
representative capacity. V Next, it
is the commissioner's contention that the trial court abused its discretion in
awarding respondents attorneys' fees, costs and expenses where there was no
showing by the major shareholders of the respondents that they were without
funds with which to oppose the appointment of him as conservator. (See Lebanon
Woolen Mills, Inc. v. United States (1st Cir. 1962) 311 F.2d 364.)
While it
is true that no showing had been made by the respondents' shareholders that they
did not have sufficient funds to defend the conservatorship proceeding, we do
not believe that this bars the court from awarding attorneys' fees, costs and
expenses to respondents. As was pointed out in the Anderson case, supra
(at p. 191) such an award is not an absolute right, but is entirely in the
discretion of the court who must determine the good faith [**21]
and justification of such an award, and if warranted, the amount to be allowed. [***595]
The commissioner's argument overlooks two important factors. In the first place,
the creditors and policyholders involved extended credit and paid premiums on
the strength [*747] of their estimate
of the judgment of that very management which the commissioner now seeks to
replace, and not on that of the commissioner. It is only if management's
judgment and conduct fails to measure up to the minimum standards prescribed by
the code that the state may, under the aegis of protection, impose on the
creditors and policyholders a management which they have neither selected nor
approved. It follows that, in making what has been found to be a bona fide
defense to the state's intervention into their business, the officers and
directors of respondents are seeking to protect the trust originally reposed in
them. "The
principle upon which an allowance is made is that counsel fees and costs of
litigation are in the nature of expenses incurred by the corporation and its
directors in the protection and preservation of the trust which they represent;
and, even if it turns out that a case is made for [**22]
interference by the appointment of a receiver and the dissolution of a
corporation, so long as the defense was made in good faith and upon reasonable
grounds, there is apparent justification in subjecting the property and the
fund involved in the litigation to the expenses incurred in discharging a
general duty cast upon the corporation and its directors to take all reasonable
means for its protection. [Citations.]" (Italics added.) (Watson
v. Johnson (1933) 174 Wash. 12, 16 [24 P.2d 592]; see also 89
A.L.R. 1531.) In the
second place, the officers, directors and stockholders of an insurance company
cannot arbitrarily be required to devote additional assets in order to protect
those already devoted to that business. As we have pointed out above, the state
cannot constitutionally take possession of assets and thus deprive the owner of
power to secure a judicial order for their return. Nor do we think that the
state can insist, as a matter of right, that the security of a legitimate
investment in a legitimate business must be subject to the unlitigated ipse
dixit of a state officer unless the investor is prepared to invest new
funds in defense of the first investment. [**23]
It is a serious enough inroad on the property rights of insurance company
stockholders to hold, as in the Anderson case, that a judicial tribunal
may, in the exercise of its sound discretion, require that all or part of the
costs of defense against administrative fiat be paid from the uncommitted
resources of the stockholders. But this balancing of the interests concerned in
a particular conservatorship must be judicial; it cannot be legislative or
administrative. [*748]
In the case at bar, the court, after a full hearing on the matter, determined
that respondents were acting in good faith and upon reasonable grounds in
resisting the conservatorship, and upon such a showing awarded respondents
attorneys' fees and costs of litigation. We may not substitute our judgment for
that of the trial court in this regard. VI Finally,
the commissioner argues that, if an award of fees and costs is to be made, it
should be made only after the full hearing on the petition to terminate and then
only if, by success in resisting the conservatorship, the bona fides of the
defense has conclusively been demonstrated. To state this proposition is to
refute it. Since an award of fees and [**24]
costs is discretionary, we have no doubt but that the trial court might have
postponed its order until the full hearing on the merits. But that is far
different from saying that such a postponement is mandatory. In the first place,
as we have pointed out above, a defense may be made in good faith and on
reasonable grounds even though it ultimately fails. Secondly, while it is
possible that an attorney might be found who would accept the representation of
the insurance company on a contingent fee basis, the company cannot
constitutionally be required to limit its selection of counsel to those willing
to accept such conditional employment; and, of course, even such an employment
would still leave the company without funds for the necessary costs of
investigation and preparation. VII The
commissioner's briefs throughout create the impression that he regards [***596]
the allegations in his application for a conservatorship as conclusive and as
disposing of this proceeding on its merits. However, it is well settled that the
commissioner's application under section 1011 is not a judicial ruling that an
insurance company in fact is delinquent. (Financial
Indem. Co. v. Superior [**25]
Court (1955) 45 Cal.2d 395 [289 P.2d 233]; Caminetti
v. Imperial Mut. Life Ins. Co., supra (1943) 59
Cal.App.2d 476.) It was to insure that that essential judicial ruling was
intelligently made that the orders appealed from were entered. VIII Appellant
also urges that the application for attorneys' fees did not comply with rule 12,
subsection 5, of the rules of the trial court, and that the application was
uncertain in certain particulars. The points are without merit. The rules [*749]
of the trial court are for it to construe and apply. Except where a deviation
from such a rule operates to deny a litigant a full and fair hearing, an
appellate court is bound by the trial court's construction of its own rule. In
this case, the record shows that appellant was afforded a full opportunity to
present his evidence and arguments and that he was under no misapprehension as
to exactly what the respondents sought and why. This is all that the law
requires. He
urges, also, that the documents which he wishes to bring before us by way of
augmentation of the record would show that, subsequent to the orders herein
involved, the attorneys withdrew from the case. We review [**26]
the orders as made, on the record then before the trial court. If events occur,
subsequent to the issuance of the orders appealed from, which render inequitable
or improper the enforcement of such orders, appellant's remedy is by appropriate
motion in the trial court after the remand to it. On such a motion, the facts
can be fully explored and the equities and counter-equities considered. The motion to augment the record is denied; the orders appealed from are affirmed. |
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