16 Cal. App.

Volume 16 — California Appellate Reports

126 opinions

16 Cal. App. 1Shaw v. Caldwell (1911)
The facts are stated in the opinion of the court.
16 Cal. App. 12People v. Jones (1911)
APPEAL from a judgment of the Superior Court of Alameda County, and from an order denying a new trial. E. J. Brown, Judge. The facts are stated in the opinion of the court.
16 Cal. App. 13People v. Piercy (1911)
The facts are stated in the opinion of the court.
16 Cal. App. 17Cooper v. Spring Valley Water Co. (1911)
APPEAL from an order of the Superior Court of the City and County of San Francisco denying a new trial. Frank J. Murasky, Judge. The facts are stated in the opinion of the court.
16 Cal. App. 28People v. Balmain (1911)
APPEAL from a judgment of the Superior Court of the City and County of San Francisco, and from an order denying a new trial. Frank H. Dunne, Judge. The facts are stated in the opinion of the court.
16 Cal. App. 37Hawley v. Los Angeles Creamery Co. (1911)
Negligence—Injury to Driver of Milk Wagon—Unsafe Horses and Harness—Findings—Judgment Against Appellant Unsupported. In an action by the plaintiff against two dairy companies for injury sustained by him as a driver of a milk wagon in Los Angeles for alleged negligence of both in furnishing unsafe horses and harness, causing a runaway, where a judgment for damages was rendered against both companies, it is held that findings that the appellant company did not carry on a dairy business in Los Angeles but had leased its plant therein to its eodefendant, the Los Angeles Creamery Company, and more than one year before the accident had sold all of its wagons, teams, harness and other appliances to that company; that plaintiff was employed by said Los Angeles Creamery Company, and that it furnished the unsafe horses and harness, and that plaintiff complained to its manager of their unsafe condition, are inconsistent with and cannot support the judgment for damages against the appellant. Id.—Immaterial Finding—Holding Joint Operation Out to Public.— It is held that, in view of the other findings, a finding that the appellant company held out to the public and to plaintiff that it was operating with the Los Angeles Creamery Company, a branch thereof, is immaterial, and cannot prevent the conclusion that the judgment against the appellant is clearly not sustained by the findings, and that no liability of the appellant company for damages can be predicated thereon.
16 Cal. App. 41Erving v. Napa Valley Brewing Co. (1911)
Appeal—Dismissal fob Failure to File Transcript in Time—Improper Reliance of Attorney upon Clerk.—Where an appeal was taken under the old method, it must be dismissed for failure to file the printed transcript within the time prescribed by Rule II of the supreme court, where the certificate of the clerk is made setting forth the facts required by Rule VI of that court. It is no legal excuse that the attorney for appellant had taken a former appeal under the new method prescribed by section 941b of the Code of Civil Procedure, and relied upon the promise of the clerk to certify and transmit the transcript within the time required by law in this case. Id.—Effect of Acceptance of Excuse.—It is held that to accept such excuse as a legal justification for appellant’s failure to comply with a rule of court designed to expedite and facilitate the disposition of causes upon their merits would be to discourage diligence in the prosecution of appeals and establish a precedent that might lead to vexatious delays in the future. Id.—Relief from Default—Affidavit of Merits Essential.—If rules similar to those governing applications for relief under section 473 of the Code of Civil Procedure are to be applied in the appellate court, the party asking relief from his default must at least show that he has consulted counsel, and has been advised by them that he has reasonable grounds to expect a reversal if the appeal is heard upon its merits. Id.—Affidavit of Attorney Insufficient.—The appellant here stands contending merely for the technical right of appeal, not even the attorney in his affidavit intimating that he b.elieves there is any merit in the appeal.
16 Cal. App. 44People v. Mullaley (1911)
Criminal Law—Verification of Complaint by Notary—Legal Commitment.—A complaint before a magistrate may be verified and attested by anyone authorized to administer oaths; and since a notary public has general authority under section 2093 of the Code of Civil Procedure to administer oaths, the verification of such a complaint by such a notary is legal; and a motion to set aside the information for want of a legal commitment under such complaint, owing to the absence of a legal verification thereof, cannot be sustained. Id.—Waiver of Objection After Examination and Commitment.— Even if the complaint were deemed illegal, an objection thereto cannot avail after a regular preliminary examination and commitment of the defendant. Id.—Absence of Witness from State—Deposition at Preliminary Examination—Insufficient Objections.—Where the absence of a witness from the state is shown, and due diligence to obtain his evidence is conceded, and his deposition taken at the preliminary examination is relied upon, it is held that the objections urged thereto are insufficient and untenable. Id.—Appointment of Esportee.—An objection that it does not appear that the reporter was appointed by the justice to take the testimony is held to be untenable in fact, since it appears that such appointment was made. Id.—Reporter not Sworn—Silence of Record—Presumption—Oath not Required.—The objection that it does not appear that the reporter was sworn is met by the presumption, if the matter were material, that the oath was administered. But, since it appears that he was the official reporter of the court, it was not necessary that he be sworn. Id.—Time for Piling Transcript—Directory Provision—Reasonable Time—Presumptions.—Though it does not appear when the original transcript was filed, yet it must be presumed that it was filed in due time. It being settled that the statutory designation of time is directory merely, it is held sufficient that the filing was in reasonable time, which must be presumed not to have elapsed when the transcript was filed, in the absence of any showing to the contrary. Id.—Waiver of Objection not Urged to Deposition.—Appellant is deemed to have waived every objection to the admissibility of the deposition not urged by him. Id.—Grand Larceny—Asportation of Calf—Belief of Ownership— Assumption After Offense.-—Where defendant was charged with grand larceny in the asportation of a calf, his belief, under proper circumstances, that the calf belonged to himself and his cousin at the time of the asportation would be admissible as an important element in the case; yet where he denied that he ever saw the calf, or had anything to do with it, that is inconsistent with any belief as to its ownership when it was taken. But when, in addition to the objectionable form of the question, it related only to defendant’s “assumption” as to its ownership at a time subsequent to the completion of the offense, it would be no defense to the charge, and was properly rejected. Id.—Immaterial Evidence—Open Sale of Meat—Route Taken by Seller.—Where the evidence clearly shows that the meat of the slain calf was sold by a third party openly at a town, the question as to the directness of his route thereto asked by the appellant was properly disallowed, as having no bearing upon the question of his guilty knowledge. Id.—Statements of Seller at Time of Sale—Res Gestae—Impeachment not Allowed.—The statements of the seller of the meat at the time of the sale were not admissible as any part of the res gestae of the offense, which had been fully completed; nor could he thereby be impeached when no foundation for such impeachment had been laid by previous questions calling his attention to the same.
16 Cal. App. 50Hawley v. Los Angeles Creamery Co. (1911)
Master and Servant—Safety of Appliances—Duty of Master—Continuance of Servant in Use With Knowledge of Unsafety— Contributory Negligence.—Notwithstanding the rule that an employer is bound to furnish his employee with reasonably safe appliances to perform the work for which they are designed, and to keep them in repair, yet it is the general law of this state, embodied in section 1970 of the Civil Code, that a servant having knowledge of the unsafe character of the appliances by him used shall be barred of recovery, if thereafter with such knowledge and understanding, comprehending and appreciating the danger incident thereto, he consents to or continues in the use thereof. Id.—Promise to ¡Repair Defective Lines for Driver of Milk Wagon— Effect — Use for Reasonable Time — Risk not Assumed.— When appellant’s manager, as vice-principal, had expressly promised to repair defective lines used by a driver of its milk wagon, such driver, as its servant, did not assume the risk by continuing in the use thereof for a reasonable time, but may recover for injury caused by the runaway of the driver’s team, as the result of the breaking of the defective lines within such period of time as it would be reasonable to allow for the performance of the promise to repair the lines. Id.—Questions of Pact—Negligence—Injury Within Reasonable Time—Determination Against Appellant—Support of Pindings.—The questions of appellant’s negligence, and whether plaintiff continued his employment within a reasonable time when the injury occurred, were questions of fact to be determined by the trial court, and where its findings were in favor of plaintiff and against the appellant, it is held that this court cannot say that the evidence does not sustain the findings that appellant was negligent, and that plaintiff did not assume the risk of the defective lines during the reasonable time after the promise to repair when the injury occurred. Id.—Exclusion of Bulb fob Beport to Barn-man not Prejudicial— Beport to Barn-man and Manager—Knowledge of Appellant.— The exclusion of a rule of the appellant company requiring reports of defects to be furnished to the barn-man was not prejudicially erroneous, where the report of the defective lines was first made to the barn-man, who referred him to the manager, to whom complaint of such defect was also made and who promised to remedy the same, and whose knowledge thereof was the knowledge of the defendant. It is immaterial whether such knowledge came through the rule or otherwise. Id.—Proper Befusal of Continuance—Absent Witness—Cumulative Evidence.—It is held that, under the circumstances appearing in the record, the court did not err in refusing a continuance for a subpoenaed witness who left the state, where his evidence appears to be merely cumulative. Id.—New Trial—Newly Discovered Evidence of Witness Present at Trial.—The court did not err in refusing a new trial on the ground of newly discovered evidence of the president of the appellant, who was present during most of the trial, and knew of the importance of his testimony and failed to give it. It was also for the court to determine whether his proposed evidence would affect the result.
16 Cal. App. 55Seaboard National Bank v. Ackerman (1911)
Action upon Judgment—Record of Original Action Destroyed— Secondary Evidence.-—-In an action upon a judgment, where the record of the original action was destroyed by fire, before the commencement of the action, secondary evidence was admissible and competent to establish the existence of the original action and all of the proceedings, including the judgment had therein, under subdivision 1 of section 1855 of the Code of Civil Procedure, notwithstanding the provisions of the act of June 16, 1906. Id.—Sufficiency of Secondary Evidence—Substantial Proof of Judgment-roll.—It is held that the evidence of the institution of the original action, service of summons, and entry of judgment therein was positive and direct, and in substance established the existence of the papers and pleadings constituting the judgment-roll. It was not necessary to state the contents thereof word for word; but the substance of the lost or destroyed instruments is all that is required. Id.—Preparation of Papers by Attorney at Law—Form of Action for Money Loaned.—The fact that the papers in the original action, consisting of the complaint, return of summons showing service, and the judgment thereon, were prepared by an attorney at law, in the ordinary and usual forms employed in an action for money loaned, tended in some degree to warrant the inference that the lost record contained in detail all that was essential to support the jurisdiction and judgment of the court in the first instance. Id.—Judgment Immune from Collateral Attack—Presumption of Regularity.—A judgment of a court of general jurisdiction in this state, not void upon its face, is immune from collateral attack. In the face of such an attack it is presumed to be in all respects regular, and its rendition carries with it the implication that the court rendering the judgment had previously determined upon sufficient evidence that it had jurisdiction of the subject matter and of the defendant therein. Id.—Evidence not Showing Mode op Service op Summons—Presumption.—The fact that the evidence in the present case does not show upon whom or how the service of summons in the original action was made is not inconsistent with the conclusion that the defendant therein was properly served with summons; and it must be presumed in support of the action of the court that such service was shown to it, although it has not preserved any record thereof. Id.—Judgment Forming Basis op Action—Conclusion.—The judgment which forms the basis of the present action, having been established and received in evidence without objection or controversy, is entitled to all the presumptions pertaining to judgments of courts of superior jurisdiction, and was in and of itself sufficient for the finding upon which rests the judgment in the case at bar.
16 Cal. App. 59Allstead v. Laumeister (1911)
Action to Enforce Trust—Purchase of Land in Son’s Name—Intent to Defraud Judgment Creditor—Findings—Unsupported Judgment—Reversal.—In an action to enforce a trust against the grantee of a son in whose name the plaintiff, as his father, took purchased property, with intent to defraud his judgment creditor, with an agreement that the son should reeonvey upon demand, but the son conveyed the same to his foster mother without consideration, under the same promise made to the son, where the court found for plaintiff, and by its judgment enforced the trust against the son’s grantee, but also found upon sufficient evidence that the deed was made to the son with the intent to defraud such judgment creditor, such finding shows that the action was untenable, and the judgment is unsupported, and must be reversed. Id.—Applicable Maxim—Bad Cause of Action—Agreement not Enforceable.—It is evident from the testimony and the findings based thereon that the agreement between the plaintiff and his son with respect to the land taken in the son’s name comes within the maxim, “Mx turpi cama non oritur actio,” and cannot be sustained or executed at suit of the plaintiff, without a clear violation of the fundamental principles of equity jurisprudence. B>.—Clean Hands Required of Plaintiff in Equity—Conduct of Defendant not Believing Unconscientiousness of Plaintiff.— He who comes into equity as a plaintiff must come with clean hands. The plaintiff’s conduct in making the deed to his son, with agreement for a deed to him on demand, having been conceived and founded in the intent to defraud his judgment creditor, there was nothing that either the son or his grantee might do with the property conveyed that could relieve plaintiff from the consequences of his uneonseientious part in the transaction. Id.—Defendant in Pari Delicto not Believing Plaintiff.-—The fact that the son and his grantee stood in pari delicto with reference to the concealment of the fraudulent intent of the plaintiff is immaterial, and cannot relieve the plaintiff in equity, so long as no affirmative relief is sought by the defendant, who is merely defending against the untenable action of the plaintiff by pleading his intent to defraud his creditors. Id.—Trust Created for Fraudulent Purpose not Provable.—Courts will not allow a trust to be proven by a party to the fraud, if it was created for a fraudulent purpose. Id.—Suffering of Plaintiff from Perfidy of Trustee—Perfidy of Plaintiff—Powerlessness of Equity.—If the plaintiff may claim that he has suffered through the perfidy of his trustee, his creditors may likewise say that they have suffered through Ms perfidy. But, in any event, a court of equity can neither lend its aid to the consummation of his fraud nor to relieve him from the results thereof, though one not entitled thereto may reap its fruits.
16 Cal. App. 67Henne v. Summers (1911)
• APPEAL from a judgment of the Superior Court of Los Angeles County, and from an order denying a new trial. N. P. Conrey, Judge. The facts are stated in the opinion of the court.
16 Cal. App. 72Swift v. Board of Supervisors (1911)
Highway—Discontinuance of Public Lane—Jurisdiction of Supervisors—Notice of Hearing not Required.—The board of supervisors have jurisdiction to discontinue a public lane leading from one public road to another as a public highway to be maintained at public expense, without being required to give notice of the hearing of the proceeding for such mere order of discontinuance. Id.—Requirement of Notice of Hearing.—Section 2688 of the Political Code provides for a notice of hearing only when it is required to appoint viewers to alter or modify a public highway, or to open a new highway. Id.—Duty of Supervisors to Abandon Unnecessary Part of Public Highway.—It is by subdivision 3 of section 2643 of the Political Code made the duty of the board of supervisors, of its own motion, and without hearing evidence, to abandon by proper order such roads as are not necessary for the public use, and thus relieve the county of the burden of their maintenance. Id.—Constitutional Act—Abutting Owner not Deprived of Property Right.—The act providing for such discontinuance without a hearing is not unconstitutional as depriving the abutting owner of his property without due process of law. The abutting owner has no property right in a public road; and he cannot recover damages for its discontinuance, although he may sustain inconvenience and loss therefrom. Id.—Distinction Between Public Road and City Street.—There is a marked distinction between the rights of an abutting owner upon a city street and one upon a public road. A municipality cannot vacate a city street against abutting owners without compensation. But it is otherwise with an ordinary public road. Id.—Effect of Discontinuance of Public Road—Rights Acquired by Grant Unaffected.—The discontinuance of a public lane connecting two public roads 'as a highway merely surrenders the rights therein which have been acquired by the public. If by grant or otherwise rights have been acquired by an abutting owner, such rights are unaffected by the order; but such owner may not insist that the public shall maintain a road for his private convenience and use. Id.—Writ of Review to Annul Order of Discontinuance not Permissible—Rights of Petitioners.'—No writ of review is permissible to annul an order of discontinuance of a public "road, regardless of the private rights of either of the petitioners. The record shows that the rights of one of them are unaffected; while the other petitioner owns by grant a line to the center of the discontinued road, and has thereby the means of ingress and egress to his property from the abandoned public lane.
16 Cal. App. 77Standard Investment Co. v. Kingsbury (1911)
State School Lands—Purchase on First Payment—Annual Interest Payable January 1st in Advance—Full Payment in March— Interest Unaffected.—Where a certificate of purchase of state school lands was taken on the first payment of twenty per cent, with the residue on credit, the annual interest thereon is payable yearly in advance on the first day of January; and the fact that full payment is made in March cannot affect the year’s interest due in advance on the preceding January 1st, or entitle the holder of the certificate to any abatement on account of such interest past due. Id.—Time for Payment of Principal Optional With Purchaser— Mode of Avoiding Interest in- Advance.—By the terms of the certificate of purchase of state school lands the time of the final payment is optional with the purchaser; and if he desires to avoid the payment of another year’s interest in advance when he makes final payment, he must make such payment on or before the first day of the year. Id.-—No Authority for Waiver of Interest Past Due.—There is no warrant in the statute for the waiver of any of the interest which is past due by the terms of the statute. No officer is authorized to waive any part thereof. Id.—Unpaid Interest Due Until Paid With Costs of Suit Before Decree of Foreclosure.—The unpaid interest remains due until it is paid, and to save the certificate from final loss by a decree of foreclosure, the costs of suit must also be paid before the entry of the decree. Id.—Delinquency Precludes Patent.-—While the year’s interest due in advance on or preceding January 1st remains unpaid, and renders the certificate liable to foreclosure, the delinquency precludes the state from executing a patent until the delinquency is wholly removed, and paid in full. Id.—Practice to Allow Rebate of Interest—Practical Construction Aiding Doubtful Statute—Defeat of Manifest Purpose not Allowed.—Conceding that the practice has been in the past to allow a rebate of part of the year’s interest where payment in full is made after January 1st, yet the only effect of a practical construction of long standing is merely as an aid to the construction of a doubtful statute; and no amount of practice can be allowed to defeat the manifest purpose of the legislature.
16 Cal. App. 85Morgan v. Mutual Benefit Life Insurance (1911)
APPEAL from a judgment of the Superior Court of the City and County of San Francisco. John J. Van Nostrand, Judge. The facts are stated in the opinion of the court. E. C. Chapman, W. C. Sharpstein, and W. R. Bacon, for Appellant.
16 Cal. App. 96Cargnani v. Cargnani (1911)
APPEAL from a judgment of the Superior Court of Alameda County, and from orders denying a new trial, and denying defendant’s motion to require plaintiff to pay defendant’s costs and expenses of appeal. T. W. Harris, Judge. The facts are stated in the opinion of the court.
16 Cal. App. 103O'Brien v. O'Brien (1911)
Action—Venue—Motion fob Change to Residence of Defendant— Error in Denying Motion—Proper Showing—Insufficient Rebuttal.—An order denying a motion of the defendant in an action to change the place of trial thereof to another county, shown to be the county of his residence hy bis unqualified affidavit, is-erroneous, where the counter-affidavit for the plaintiff is insufficient in rebuttal thereof, in merely reciting that some nine months previously he testified that he then “lived” in the county of the venue, in a legal proceeding, and that plaintiff is “certain” and “convinced” that he is a resident of the county of the venue, without stating any facts forming the basis of such “certainty” or “conviction,” and where it appears that it was found upon her application in such legal proceeding, that he had removed from such county to the county now claimed as his residence. Id.—Sufficiency of Affidavit of Residence by Defendant — Statement of Probative Pact.—An affidavit made by the defendant as to the place of his residence, upon his motion for a change of venue thereto, which unqualifiedly states that he is a resident of the county to which he requests that the trial of the action be changed,' is a statement of a probative fact, to which he is qualified to testify. Id>—Affidavit of Third Party—Statement of Defendant’s Residence a Mere Conclusion.—The affidavit of a third party, or of the plaintiff, as to the residence of the defendant, no matter how unqualifiedly made, is but a conclusion of the affiant. Id.—Conflict not Raised Between Affidavits of Defendant and of Plaintiff.—It is held that the facts stated in the rebutting affidavit for the plaintiff do not contradict in the slightest degree the unqualified declaration of the defendant, and the rule of conflict of evidence cannot be invoked in favor of the order denying the motion. ID.—Previous "Living” in County of Venue.—The statement of defendant nine months before suit, that he then “lived” in the county of the venue, does not show that he was then a resident thereof. A person may “live” at a place and still not be a resident thereof in the legal sense of that term. JD).—Change of Residence.—Assuming that defendant intended to state that at a time nine months previous to the commencement of this action he resided in the county of the venue, such fact would not be inconsistent with the unqualified statement in his affidavit that when this action was commenced he resided in another county, to which his affidavit relates. Id.—Corroboration of Affidavit of Defendant—Charge and Finding of Removal from County of Venue.—The unqualified affidavit of defendant as to his residence is corroborated by a proceeding in which plaintiff sought to remove defendant as executor of a will in the county of the venue, on the ground that he had moved therefrom to the county now claimed by him as a residence, and the finding of the court that he had so moved, and was engaged in business therein, prior to the institution of this suit, and the appointment of plaintiff as administratrix in his stead, on that ground.
16 Cal. App. 113Wakefield v. Wakefield (1911)
Action by Husband fob Custody of Child—Issues—Interlocutory Divorce for Wife on Cross-complaint—Default not Entered— Appearance—Estoppel.—In an action by the husband for the custody of a child as against a wife living apart from him, where issues were joined by the wife, and she obtained an interlocutory decree of divorce under an amended cross-complaint, to which no answer had been filed, and at the hearing both parties were represented by counsel, and the husband offered no proof under his complaint, nor against the amended cross-complaint, the plaintiff husband, under this state of facts, is not in a position to question the regularity of the interlocutory decree, on the ground that no formal entry of default was made against him before such decree was ordered. Id.—Presumptions from Eecord—Notice of Trial—Consent of Parties.—It must be assumed from the record as presented that notice of trial was regularly given, or that the cause was heard on the date mentioned by the consent of the parties. Id.—Jurisdiction—Absence of Notice of Hearing—Formal Entry of Default not Essential.—Even in eases of default, where no notice of hearing is given, it is not essential that a formal entry of default should first be made in order that the court shall have jurisdiction to enter judgment against a defaulting party. Id.—Propriety of Cross-complaint for Divorce in Action for Custody of Child—Estoppel of Husband.—Whether or not a cross-complaint for divorce by the wife is an appropriate proceeding in an action by the husband for the custody of a child is immaterial, for the reason that the plaintiff husband by Ms conduct has es-topped himself from raising that question by failure to object either to the original or amended cross-complaint for divorce, or to proof of the cause of action for divorce stated in the amended cross-complaint. Id.—Prayer of Amended Cross-complaint.—Where the original cross-complaint was made part of the answer and prayed for an interlocutory decree of divorce, the prayer of the amended cross-complaint for judgment, as prayed for in her original answer and cross-complaint, was not objectionable. Id.—Prayer of Amended Cross-complaint not Material — Appearance and Trial.—The prayer of the amended cross-complaint in equity was not material, where both parties appeared and proceeded to trial in all respects as though an answer had been filed to the amended cross-complaint. Id.—Time for Appeal from Interlocutory Judgment — Motion to Dismiss Denied.—Under the provisions of section 131 of the Civil ' Code, an appeal may be taken from an interlocutory judgment of divorce within six months after the entry of the decree, and where the record shows that that period had not elapsed when the notice of appeal was served, a motion to dismiss the appeal must be denied.
16 Cal. App. 117People v. Shimonaka (1911)
Homicide — Charge op Murder — Verdict op Manslaughter.— The charge of murder necessarily includes the crime of manslaughter; and though the evidence is such as would sustain a verdict for murder, it is sufficient to sustain a verdict for manslaughter. The defendant is not entitled to be acquitted because the jury found him guilty of a less offense than the one charged and proved. Id.—Verdict Against Selp-depense Conclusive upon Appeal.—Upon the issue of self-defense, the verdict against the defendant is conclusive upon appeal, where there is some evidence from which the jury might have concluded that defendant did not hill his adversary under such circumstances as the law would justify under the plea of self-defense. Id.—Instructions as to Selp-depense—Proper Modifications.—Where the instructions as to self-defense were as favorable to that plea as the law would justify, the court properly modified a requested instruction as to the lawful pursuit of an assailant by stating that “it must be carried no further than is reasonably necessary to free himself from danger,” and also properly modified a requested instruction as to defense under “real or apparent danger,” by stating that the self-defender “may use such force as is necessary to meet such danger, and no more. If he goes beyond this limit, he transcends the law of self-defense, and becomes himself a wrongdoer.” Id.—Limitations in Law. of Self-defense.—Though the person assaulted may use so much force as is necessary to his defense, yet to repel a slight assault, the person assaulted is not authorized to resort to measures of great violence. He will not be justified in destroying the life of the assailant, unless the assault is such as to endanger his life or inflict upon him great bodily injury, or to excite the fears of a reasonable man that such would be the result of the assault. The law limits him to such acts as are necessary to self-defense, and will hold him responsible for a clearly marked excess. Id.—Request as to Killing Under “Sudden Jeopardy” Properly Refused.—A requested instruction as to self-defense under necessity, which states, “as a matter of law, that absolute necessity is deemed to exist when one without fault is placed in sudden jeopardy,” was properly refused. The defendant was not entitled to an instruction which left the jeopardy under which he would excuse himself entirely undefined. One may find himself in jeopardy which does not reasonably indicate real or apparent danger of his receiving great bodily injury, or justify the killing of one’s assailant. Id.—Erroneous Instruction as to “Malice” in Murder not Prejudicial.-—An erroneous instruction on the subject of “malice” in the definition of “murder” is not prejudicial, whore the verdict is for manslaughter, in which the element of malice is not involved, and which included an acquittal of murder. Id.—Request as to Self-defense Arising upon a Sudden Quarrel upon a “Mere Altercation of Words”—Proper Modification.— A requested instruction upon the subject of killing in self-defense against an assailant, as the result of a sudden quarrel upon a “mere altercation of words,” was properly modified, by making it clearer that there must be some accompanying circumstances or acts, of the assailant besides mere words before the taking of life in self-defense would be justified. Id.—Request as to “Reasonable Doubt”—Proper Modification.—A requested instruction as to “reasonable doubt” that it need not result from defendant’s testimony, but “may arise as well from the weakness or defect in the testimony introduced on the part of the prosecution” was properly modified by adding thereto, “a doubt to be reasonable is one which results or arises from a consideration of all the evidence in t]ie case as heretofore defined in these instructions.” . . Id.—Bequest Included in Chame Properly Refused.—The court properly refused a requested instruction elsewhere included in the charge. Id.—Bequest in Different Form.—When a principle or proposition of law is once correctly stated in an instruction, it is not error to- refuse its repetition in some other form, unless this other form is necessary to a proper conception of the principle as applicable to some phase of the case not covered by other instructions.
16 Cal. App. 126June v. Superior Court (1911)
Jurisdiction of Superior Court—Premature Appeal from Justice’s Court — Trial by Jury — Judgment not Entered — Dismissal— Mandamus not Allowed.—The superior court has no jurisdiction of an appeal from a justice’s court, in which there was a trial by jury,- and judgment had not been entered in the docket in conformity with the verdict when the appeal was taken; and where such premature appeal was dismissed by the superior court, regardless of the ground of dismissal, mandamus will not lie to compel the superior court to proceed with the trial thereof. Id.—Duty op Justice to Enter Judgment on Verdict—Form—Entry Essential.—Though the justice is not required to formulate a judgment with the particularity required of judgments entered in the superior court, yet it is made his duty when a trial by jury has been had to enter a judgment at once in conformity with the verdict, and it is provided that no judgment in the justice’s court shall have any effect for any purpose until it is entered. Until some entry has been made in the docket showing that he has rendered a judgment on the verdict, there is -no judgment from which an appeal may be taken.
16 Cal. App. 130People v. Boyd (1911)
Criminal Law—Robbery—Concealed Witness to Confession—Showing of Diligence—Admission of Deposition.—Upon a prosecution for robbery, it was proper to admit in evidence the deposition of an absent witness who testified at the preliminary examination to the defendant’s confession of the robbery, where due diligence was shown to serve him with subpoena, and after inquiry at his family home, every clue given by his wife as to Ms whereabouts was followed without avail, and search was made for him throughout that county and the adjoining county, and it became evident that he was concealing himself to avoid the service of a subpoena upon him. Id.—Subpoena to Every County not Required ■—“Due Diligence” Relative to Circumstances.—“Due diligence” does not require in such ease that a subpoena should be issued to every county in the state. “Diligence” is a relative term; and what would amount to “due diligence” under one state of facts would fall short of it under another and different state of facts, and it depends essentially upon the particular circumstances of each case. Id.—Diligence a Question for Trial Court.—The question whether the circumstances as they appear to the trial court show that “due diligence” has been used in a particular instance, is for its determination, and the appellate court will hesitate to disturb a ruling upon this ground, when it has any substance whatever upon which to rest. Id.—Proper Discretion of Trial Court Presumed.—The presumption is that the discretion of the trial court has been properly exercised in determining the question of diligence, and that presumption must be overcome by a clear want of facts before its order will be disturbed. Id.—Deposition not Prejudicial — Cumulative Evidence of Confession.—Regardless of the sufficiency of the showing of diligence, it is clear that the admission of the deposition is not prejudicial, as it only shows cumulative evidence of the confession of the defendant, which was fully established by other witnesses, including the evidence of officials, which was sufficient to sustain the verdict. Id.—Misconduct of Juror—Inebriety Out of Court—Proof of Soberness in Court — Conflicting Evidence — Ruling Conclusive.— "Where there was a charge of misconduct of a juror in being intoxicated out of court, and in so far as such evidence might tend to show that he was under the influence of liquor in court, it was met by counter-affidavits that he did not appear to be under the influence of liquor at any time during the trial, or during the discussion of the ease in the jury-room; and there was no' showing that either of the attorneys or the trial judge observed anything peculiar in his manner in court, the ruling of the court against any misconduct affecting the case in court is conclusive. Id.—Discussion of Case by Juror—Conflict—Province of Court.— Where the evidence was conflicting whether a juror discussed the merits of the case during the trial, it was for the trial court to determine the truth of the matter. Id.—Support of Verdict.—Where there is sufficient evidence in the record to support the verdict, it cannot be set aside on the ground that there may appear in the record some testimony favorable to the defendant. Id.—Presumptive Consideration by Jury.—The jury presumptively gave due attention and consideration to all the important facts brought out by the evidence, those favorable to as well as those condemnatory of the defendant.
16 Cal. App. 141First State Bank v. Blackinton (1911)
Action xjpon Note—Default Judgment—Pleading—Part Payment of Interest—Further Nonpayment not Alleged—Erroneous Judgment.—In an action upon a promissory note, where the judgment was by default, and the complaint alleged payment of interest up to a specified date, hut there is neither direct allegation of nonpayment of the interest after such date nor an allegation from which such fact is implied, and there is nothing in the complaint upon .which to base a judgment for further interest, a judgment therefor is erroneous. Id.—Date of Filing Complaint not Shown—Modification as to Excess not Computable—Reversal.—Where the date of the filing of the complaint is not shown by the record upon appeal, there is no basis upon which the amount of the excess of the interest may be computed, so as to justify a modification of the judgment; and it is held that the judgment must be reversed and the cause remanded for such further action as to the parties may seem advisable.
16 Cal. App. 143Irwin v. Insurance Co. of North America (1911)
Fire Insurance—Action on Policy—Pleading—Averment of Nonpayment—Neglect and Refusal to Pay—Case Followed.—In an action upon a policy of fire insurance, an allegation in the complaint of neglect and refusal of the defendant to pay the policy is a sufficient averment of nonpayment to support a judgment for plaintiff. The case of Gardner v. Donnelly, 86 Cal. 362, 373, is followed, to the exclusion of Scronfe v. Clay, 71 Cal. 123, disapproved of therein. Id.—Proof Made by Plaintiff.—The record shows that, upon the trial, plaintiff proved ownership of the building insured, an insurable interest therein, the destruction of the building by fire, and the proofs of loss, as alleged in the complaint. Id.—Issue as to Time of Payment of Loss—Burden of Proof.— Where the complaint averred that the loss became payable on the eighteenth day of November, 1908, which was traversed by the denial made in defendant’s answer, the burden devolved upon the plaintiff to prove by the policy the time of payment stipulated therein. , Id.—Policy Showing Premature Action not Maintainable.—Where the record shows that the complaint was filed December 22, 1908, and that the eighteenth day of November, 1908, was the date of' the proofs of loss, and the policy introduced by plaintiff showéS* that it was payable by its terms sixty days after the proofs -to£ loss,- it is thereby established that the action was premature, an® not maintainable. . Id.—Time fob Payment not Waived by Denial of Any Liability.^. The time for payment fixed by the terms of the policy was -npt, waived by defendant’s denial of any liability thereon. The defendant had the right, at all events, to retain the money payable under' the terms of the policy until the time fixed thereby for payment should fully elapse. Id.—Absence of Breach of Contract.—No breach of the contráete evidenced by the policy existed at the time of suit brought. 'Nó¡ denial of liability before maturity of the cause of action canfjbe; said to mature any obligation before the date fixed by the contract ■ for its payment. . Id.—Defendant Entitled to Nonsuit.—When plaintiff introduced ,t¡hp,, policy at the trial, the defendant was entitled to a nonsuit at the conclusion of plaintiff’s testimony, and the court erred in refusing a" motion therefor.
16 Cal. App. 147People v. Grow (1911)
'APPEAL from a judgment of the Superior Court of Los Angeles County, and from an order denying a new trial. Paul J. McCormick, Judge. The facts are stated in the opinion of the court. George Appell, Fred J. Spring, and Geo. F. Snyder, for Appellant.
16 Cal. App. 151Hoover v. Lester (1911)
Judgment—Rendition upon Trial by Court—Filing of Findings and Conclusions.—Under sections 632 and 633 of the Code of Civil Procedure, where an action is tried by the court, its findings of fact and conclusions of law are the only papers in connection with the judgment that the trial court is required to sign and file; and the signing and filing thereof constitute the rendition of judgment by the court. There is no other judicial act required to be performed by the court to make the judgment effectual. Id.—Entry of Judgment Essential — Ministerial Act by Clerk.— The making of the entry in the judgment-book of the substance of the judgment rendered by the court is an act purely ministerial in its nature, the performance of which devolves upon the clerk to enter the same in conformity to the decision of the court. This entry is essential to make the judgment effectual. Id.—Sufficiency of Entry—Statement of Decision by Court.—In determining the sufficiency of the entry by the clerk of the judgment of the court on the judgment-book, the question is whether the clerk has made a sufficient statement of what had been decided by the court. Where the clerk’s entry therein sufficiently sets forth the substance of the court’s judgment, gave the names of the plaintiff and defendant, and recited that the court had theretofore made and filed its findings of fact and conclusions of" law, and stated the amount of money ordered to be recovered by plaintiff from defendant, the entry is sufficient. Id.—Source of Form of Entry Immaterial — Signature of Judge Harmless.—It is immaterial from what source the clerk procured the form used in his entry in the judgment-book; nor does the fact that the signature of the judge appears therein add anything to the record, nor would the want of such signature detract from its sufficiency. Action for Unpaid Balance for Crop of Lemons Sold—Pleading— Delivery not Alleged—Defense of Nondelivery—Trial of Issue—Finding—Objection upon Appeal.—In an action to recover an unpaid balance for a crop of lemons sold by plaintiff to defendant, although the complaint does not aver a delivery of the crop, yet where the answer pleads nonperformance of the contract in not delivering the crop of lemons contracted for, and the case was tried and determined upon that issue, and the court found that the whole crop sold was delivered to defendant, it must be presumed upon appeal in support of the finding that evidence was adduced upon that issue, and defendant cannot be heard to object upon appeal for the first time that no issue as to delivery was presented by the complaint, and that it is insufficient in that respect. Id.— Description op Crop in Complaint and Finding — Immaterial Variance.—Where the complaint alleged that on a specified date “plaintiff sold his crop of lemons to defendant,” and the court found that on said date “said plaintiff herein sold to said defendant a certain crop of lemons,” does not show such a difference in descriptive terms as to warrant an inference that the crop sold might have been other than that delivered. Id.—Recital op Location in Answer Disregarded — Admission op Complaint.—A mere recital in the answer as to the location of defendant’s orchard, made by way of admission of the complaint, which is not responsive to anything alleged therein, and is not an affirmative averment, should be disregarded.
16 Cal. App. 156Reeves v. Kinney (1911)
Action fob Befbeshments Fübnished to Othebs at Defendant’s Bequest-Finding Supported by Evidence.—In this action by plaintiff against defendant for refreshments furnished at a club-house to other designated parties at defendant’s request and promise to pay therefor, it is held that a finding of performance on the part of the plaintiff, and of defendant’s promise to pay therefor, is supported by evidence of such performance and promise, and that defendant agreed to pay the bill when presented, and never disputed the same, but failed to make the payment promised. Id.—Conflict of Testimony—Oedeb Denying New Trial.—The fact that the testimony of the plaintiff is contradicted by the defendant constitutes no ground for reversing the order of the court in denying a new trial to the defendant.
16 Cal. App. 157Conde v. Sweeney (1911)
Decision upon Former Appeal—Law op Case.—Questions urged upon the present appeal, which were decided against the appellant upon a former appeal, must now be considered as the law of the case. Contract to Sell Mines—Machinery Fastened by Assignee op Vendee—Fixtures—Removal not Agreed — Attachment — Injunction.—Where the owner of mines contracted to sell the same, and the vendee contracted to sell the same to a third person who erected mining machinery thereon, which was bolted and permanently affixed thereto, without any agreement for its removal, such machinery constituted fixtures to the realty, which neither of the vendees could remove; and upon failure of the first vendee to comply with his contract, such fixtures became the property of the original owner of the mines, who was authorized to enjoin the removal thereof by the sheriff, under an attachment against the second vendee by a creditor thereof. Id.—Right of Second Vendee to Fixtures Limited to Right op First Vendee.—The second vendee had no greater right to the improvements made fixtures to the mines than would have the first vendee, had it made and affixed the same thereto. Id.—Attachment Against Second Vendee in Possession Before End op First .ContrACX^-ÍIXEUBES not Removable.—The attaching creditor of the second vendee, though his attachment upon the affixed machinery was made while the second vendee was in possession, three days prior to the termination of the right of the original vend'ee, could have no greater right to remove the fixtures than the original vendee, who could not remove what had become part of the realty. The fixtures cannot be treated as personal property for the purpose of removal under the attachment. Id.—Termination of Bight of Attaching Creditor.—Since the machinery was part of the land, if the levy of the attachment could affect anything, it could reach only the interest of the second vendee in the realty, which was simply the right of possession of the mines and of prospect and development. But since this right ceased three days after the levy of the attachment, there would be no interest upon which the attachment could operate thereafter. Id.—Support of Findings and Judgment for Injunction.—It is held that the complaint, findings and evidence substantially support the judgment for a permanent injunction to prevent the sheriff from removing the machinery, as fixtures of the realty, at suit of the attaching creditor of the second vendee. Id.—Immaterial Finding of Possession Disregarded.—Where the evidence and findings establish that the second vendee was in possession when the attachment was levied, a finding that the owner was at all times in possession of the mine may be entirely disregarded. Id.—Immaterial Finding of Irreparable Injury from Bemoval.—It is held that a finding that the removal of the machinery “will cause these plaintiffs great and irreparable injury” is not material, as they would be entitled to an injunction to restrain defendant from taking away without right a part of the realty, whether in a pecuniary sense they would be greatly damaged or not by the removal.
16 Cal. App. 164Oliver v. Warren (1911)
APPEAL from a judgment of the Superior Court of Tuolumne County, and from an order denying a new trial. G. W. Nicol, Judge. The facts-are stated in the opinion of the court.
16 Cal. App. 169People Ex Rel. Escalle v. Town of Larkspur (1911)
The facts are stated in the opinion of the court.
16 Cal. App. 179Bohn v. Bohn (1911)
Change of Venue—Residence of Defendant—Error in Denying Motion—Want of Notice—Appearance—Waiver of Objection.— An order denying a motion of the defendant to change the place of trial of an action to the county of his residence, upon proper demand and affidavits, was improperly denied on the ground of want of notice of the motion to the plaintiff, where the plaintiff appeared upon the hearing of the application, and neither asked a continuance of the hearing or the right to file counter-affidavits thereon. He thereby waived any objection to the absence of notice of the motion, whether such notice was necessary or not. Id.—Uncontested Affidavits—Duty of Court—Jurisdiction.—Where the affidavits of the defendant’s residence and of merits were uncontested, defendant possessed the right upon his written demand filed with his demurrer to have the cause transferred for trial to the county of his residence, and the superior court of the original venue had no jurisdiction or authority,' in the absence of a counter-showing, to deny the transfer or to proceed further with the case. Id.—Improper Place of Trial—Notice of Application for Change not Bequired.—Where the county in which the action is commenced is not the proper county for the trial thereof, and such fact is made to appear by an affidavit of merits, accompanied by a demand in writing filed with the demurrer or answer, it is the duty of the court to make the order for change as demanded, regardless of whether or not a notice in writing of the time when the application will be presented has been served upon the plaintiff. Id.—Construction of Code—Motion for Change of Venue not Within Provision Bequiring Notice.—Although, under the provision of section, 1010 of the Code of Civil Procedure, the action of the court upon the demand is an order, and the application made upon the demand is designated as a motion, yet it is not a motion as to the making of which notice in writing is required to be given to plaintiff within the meaning of section 1005 of the Code of Civil Procedure. Id.—Practice—Motion Placed upon Calendar.—Like a demurrer filed, the motion to change the place of trial goes upon the calendar to be called for hearing in the regular order of business.
16 Cal. App. 183Bennett v. Potter (1911)
Appeal Taken Too Late—Dismissal.—An appeal from a judgment taken more than six months after its entry is too late, and will be dismissed. Order Denying New Trial—Review upon Appeal—Sufficiency of Complaint and Findings—Support of Judgment.—The sufficiency of the complaint and of the findings to support the judgment cannot be reviewed or considered upon appeal from an order denying a motion for a new trial. Those questions could only be considered on appeal from the judgment. Action for Breach of Contract to Sell Personal Property—Title in Vendee—Measure of Damages.—The measure of damages in an action for a breach of contract to sell personal property, the title to which has vested in the vendee, for nonpayment therefor, is deemed to be the unpaid contract price. Id.—Executory Contract to Sell Automobile for Agreed Price—• Offer of Delivery-—-Retention for Purchaser’s Use—Title Passed.—Title is transferred under an executory contract to sell an automobile for an agreed price, where the seller has completed it, prepared it for delivery, and offered it to the buyer, and has stored it for the purchaser’s use, with intent to transfer the title thereto, so that the buyer could at any time have had the full and unrestricted use thereof. Id.—Election of Vendor—Title and Delivery to Vendee—Improper Evidence of Sale by Vendor Without Notice—Credit on Contract Price.—Where the vendor of the automobile, in an action for a breach of the contract of purchase thereof, elected to treat the title as having passed to the vendee, and alleged and the court found that the automobile had been delivered, according to the contract for the sale thereof, the court erred in admitting evidence, over the objection of the vendee, to show that the vendor had, without notice to the vendee, sold the automobile pending suit, just before the trial, for less than one-half of the contract price, and in crediting the amount thereon, and allowing the recovery of the remainder of the contract price by the vendor from the vendee. Id.—Value of Automobile in Market Immaterial.—Under the cause of action, relied upon in the complaint for damages for breach of the contract of sale, the value of the automobile in the market was immaterial. Id.—Sale Under Vendor’s Lien not Effected—Notice Essential.— In order to effect a sale for the enforcement of a vendor’s lien on the automobile, as personal property, it must be sold in the same manner in which pledged property is sold, after notice to the vendee of the time and place of the sale. Id.—Sale Without Notice a Conversion of the Property.—A sale of the automobile without notice to the vendee amounted to a conversion of the property of the vendee, for which damages might be recovered by the vendee. Id.—Prejudicial Error.—As the effect of the admission of the testimony showing the sale of the property had just before the trial would be to compel the vendee to accept in lieu of damages for conversion the price claimed to have been obtained for the automobile, and which the court credited her with, it cannot be said that the error in admitting that evidence was without prejudice, since it does not appear that the sale was made with her consent as vendee.
16 Cal. App. 188Strait v. Wilkins (1911)
Action for Breach of Contract to Exchange Lands—Defense of False Representations—Findings—Support of Judgment—General Rule.—In an action to recover damages for breach of a contract to exchange lands, it is held that the findings of the court as to false representations made by the plaintiff as to the value of his lands to induce the exchange are sufficient to sustain a judgment for defendant, under the general rule that “whenever a party states a matter which might be otherwise only an opinion, and does not state it as the mere expression of his own opinion, but affirms it as an existing fact material to the transaction, so that the other party may reasonably treat it as a fact, and rely upon it as such, then the statement clearly becomes an affirmation of a fact, within the meaning of the general rule, and may be a fraudulent representation.” Id.—General Bulb Inapplicable to Evidence—Excessive Values Fixed upon Property of Each Party—Nonreliance upon Bepresentations.—Such general rule is inapplicable to the evidence when the case is presented thereby where each party fixed excessive values upon the property sought to be included in the trade, which was a fact understood by all, and it is evident that the defendant did not rely upon plaintiff’s representations in the sense required to render a statement of value one of fact. The wholesome general rule above stated was never intended to establish that where parties agree upon inflated values, and each has an opportunity to determine the true value, one might neglect the opportunity, and, if subsequently to his interest, avoid the contract merely because an inflated value was fixed by the other party to the exchange. Id.—Statement That Mortgage not Due can Stand—Opinion.—The statement that a mortgage not due for six months can stand is not a false statement, and the statement that it might be renewed indefinitely is but a mere expression of opinion. Id.—Contract not Made in Beliance upon Any False Statement of Fact.—It is held that there is no evidence in the record tending to show that the contract was made by defendant in reliance upon any false statement of fact. Id.—Absence of Defense to Damages—Contract by Married Woman. This case being one of damages for breach of a contract to exchange property agreed to be conveyed by the defendant, though she is a married woman, it is immaterial whether the property is her own or her husband’s; if she is unable to comply, and neglects and refuses to comply, with her contract, she is liable in damages for its breach, and has no defense thereto.
16 Cal. App. 193O'Brien v. O'Brien (1911)
APPEAL from an order of the Superior Court of the City and County of San Francisco denying defendants’ motion to change the place of trial. Thomas F. Graham, Judge. The facts are stated in the opinion of the court. Frank James, E. C. Chapman, and Frank W. Taft, for Appellants.
16 Cal. App. 198Luitweiler Pumping Engine Co. v. Ukiah Water & Improvement Co. (1911)
The facts are stated in the opinion of the court.
16 Cal. App. 211Ex Parte Hayter (1911)
PETITION for discharge upon writ of habeas corpus after demurrer sustained to an information in the Superior Court of Merced County. E. N. Rector, Judge. The facts are stated in the opinion of the court.
16 Cal. App. 226Miklauschutz v. Superior Court (1911)
Appeal prom Justice’s Court—Default Judgment—Stipulation for Trial—Jurisdiction of Superior Court — Remand for Trial — Writ of Review Untenable.—Where, upon appeal from a justice’s court, it appears that a judgment by default had been rendered therein for want of a written answer to the complaint, after the parties had stipulated for a trial upon the merits, the superior court had jurisdiction to vacate the judgment by default, and to remand the case to the justice’s court for trial upon the merits; and a writ of review will not lie to annul its action in so doing. Id.—Stipulation for Trial—Waiver of Answer—Oral Answer Permissible.—The stipulation of the parties for trial upon the merits treated the case as at issue, and waived the necessity of an answer to the complaint. Especially should this rule apply in the justice’s court, in which' an oral answer is permissible. Id.—Want of Trial in Fact—Power of Superior Court to Reverse Judgment for Error Appearing.—Where there has been no trial in fact, there is no evidence to be embodied in a statement of the case, and the superior court is authorized to reverse the judgment, if error appears in the copy of the justice’s docket, or in the papers and files sent up from the justice’s court.
16 Cal. App. 228Yuba Consolidated Goldfields v. Hilton (1911)
The facts are stated in the opinion of the court.
16 Cal. App. 235San Joaquin & Kings River Canal & Irrigation Co. v. Stevinson (1911)
Appeal — Alternative Method — Failure to Print Whole Becord Belied on in Brief—Nonsuit — Absence of Bule — Befusal of Motion to Dismiss.—In the absence of a rule of the supreme court regulating the practice upon appeals taken under the alternative method prescribed in sections 953a, 953b and 953c of the Code of Civil Procedure, an appeal will not be dismissed merely for failure to print in the appellant’s brief the whole portion of the record upon which he relies for reversal, where the only point involved in the appeal is that the court erred in granting a non-suit, and the brief contains some evidence and correctly refers to the transcript for the remainder, and discusses fully the questions involved, which could not impose much extra labor on this court in deciding whether the court erred in denying the motion. It would not be just to dismiss the appeal in such case. Id.—Promulgation of Bule—Authority Besiding in Supreme Court. It is not the duty, or province of this court to formulate and promulgate a rule by which the new practice as to appeals may be uniformly observed and followed. The authority to make rules governing the practice in this and the supreme courts is vested by the constitution in the latter tribunal. Id.—Need for Bule.—Since the meaning of the language of section 953e does not appear to be so self-evident as that its true scope is generally understood, there should be some rule of court regulating the new procedure for taking appeals under the new method. Id.—Intention of Legislature—Mandatory Provision.—It seems to have been the clear intention of the legislature in enacting section 953e to require that there should be inserted in the brief something in the nature, substantially, of a statement or bill of exceptions, to be printed in a supplement appended to the brief, to elucidate all of the questions relied upon on the appeal. The language of the section seems to be mandatory, requiring that, in filing briefs upon such appeal, the parties must, however, print in their briefs, or in a supplement appended thereto, such portions of the record as they desire to call to the attention of the court. When so printed, it becomes part of the record upon appeal.
16 Cal. App. 241Porter v. Counts (1911)
Action to Establish Disputed Boundary op Government Survey— Survey Made According to Government Bules—Support op Findings.—Where in an action of ejectment it was sought to establish the disputed boundary of a government section, it is held that proof of a survey made by a competent surveyor, who followed the rules of the land department in determining the location of the disputed line, was competent to show its location, and findings based thereon according to his testimony of such survey were supported thereby. Id.—Motion por New Trial por Further Survey—Insufficient Ground.—A motion for a new trial made by the losing party, in order to have a further new survey made, will not be granted where the case has been twice tried, and the surveyor who made the survey is shown to be well qualified to make it, and the losing party had full opportunity to call in the services of any other surveyor of his own choice to do the work preparatory to his defense.
16 Cal. App. 244McDonald v. Kingsbury (1911)
APPEAL from a judgment of the Superior Court of Los Angeles County, and from an order denying a new trial. Frederick W. Houser, Judge. The facts aré stated in the opinion of the court.
16 Cal. App. 249Korander v. Penn Bridge Co. (1911)
Negligence—Injury to “Loftman” on Pile-driver—Want of Care of Engineer Imputable to Employer.—The want of care on the part of an engineer in operating a steam hoisting engine, which supplies motive power for raising a hammer, by the fall of which a pile-driver was operated, on which plaintiff was seriously injured while in the performance of his duty to keep the pile in position • and “ring” it to keep it from splitting, by the premature fall of the hammer without signal from the loftman, in violation of the engineer’s duty, is imputable to the employer, as his negligence, under section 1970 of the Civil Code, making the employer responsible for “injuries resulting from the wrongful act, neglect or default of a coemployee employed upon a machine ... or other appliance than that upon which the employee injured is employed.” Id.—Error in Granting Nonsuit—Fellow-servants upon Same Machine or Appliance.—In such case, it is held that the court erred in granting a nonsuit on the ground that the engineer and the plaintiff were fellow-servants employed upon the same machine or appliance, and that plaintiff, for that reason, was not entitled to recover from the employer. Id.—Definition of Machine.—A machine is an instrument composed of one or more mechanical powers, and capable, when set in motion, of producing by its operations certain predetermined physical effects whose rule of action resides within itself. Id.—Steam Engine a Complete Machine, Distinct from Pile-driver —Steam Power from Engine—Operation of Pile-driver by Gravity.—The steam engine was a complete machine, whose only function was to develop power under the charge of the engineer, so as to raise the hammer above the position of the pile-driver, and whose duty was, when signaled, to withdraw the power and let the hammer drop by gravity to operate the pile-driver. The engine was no part of the pile-driver, and the loftman in charge of the latter had no control over the operations of the engine other than to signal for the withdrawal of its power, so as to permit the hammer to fall and operate the distinct pile-driver. Id.—Attachment of Pope from Engine to Hammer—Machines not Less Distinct.—The fact that the power of the engine in raising the hammer was applied by means of a rope connecting the engine with the hammer did not constitute the pile-driver and engine one machine. They were none the less in their nature distinct and separate machines or appliances, neither one dependent upon the other, or performing the work for which each was intended. Id.—Former Bulb op Fellow-servants Changed by Code Amendment. The fact that both the engineer and Ioftman were fellow-servants under the same general employment, under the former rule, is immaterial, under the amendment of section 1970 of the Civil Code, as applied to the facts of this case. Id.—Judgment op Nonsuit Beversed.—Where the evidence for the plaintiff tended to prove that the injury to the plaintiff was due to the negligence of the engineer, who was employed upon a machine, other than the appliance or machine upon which the plaintiff was employed when he was injured, it shows negligence imputable to the employer under the amended code, and the judgment of nonsuit must be reversed.
16 Cal. App. 253In Re Snell (1911)
16 Cal. App. 253Snell v. Clark Construction Co. (1911)
Mechanic’s Lien—Materialman Furnishing Materials to Subcontractor—Innocent Payment by Contractor — Notice to Owner—Loss of Contractor.—The owner of a building is chargeable with the lien of a materialman furnishing materials to a subcontractor, where he had not fully paid the contractor, and had notice of the materialman’s lien. In such ease the loss must fall upon the contractor, though he innocently paid the subcontractor in full without notice of the materialman’s lien. Id.—Submission of Controversy Between Lien Claimant and Contractor—Payment into Court.—Where the owner paid the amount of the lien claimed by the materialman into court, and there was a submission of controversy between the lien claimant and the contractor concerning the money, the court properly awarded the amount to the materialman and not to the contractor. Id.—Mode of Protection by Contractor.—The contractor, in such a case, can protect himself against loss by exacting of the subcontractor a contract which would require him to show that his labor and material bills were paid before the money is paid to the subcontractor, or provide that the contractor might see that the sums paid to the subcontractor were applied to the payment of such bills.
16 Cal. App. 256Segerstrom v. Scott (1911)
The facts are stated in the opinion of the court.
16 Cal. App. 262West Riverside 350-Inch Water Co. v. Rogers (1911)
Water Eights—Grant by Flume Owner of Prior Eight — Subordinate Eights—Clogged Siphons—Injunction — Costs of Unauthorized Eeoeiver—Defects Eemedied.—Where the defendant, the owner of a flume, had granted to plaintiff the prior right to take and carry 350 inches of water therein, through siphons at the beginning and end of the flume, emptying into its own conduit, and reserved the subordinate right to another party to carry 75 inches and to himself to carry 125 inches therein, and the siphons became clogged, and plaintiff, though carrying 497 inches therein, sued to enjoin defendant from pumping additional water therein to the danger of the flume, conceding that such injunction was proper, yet when the plaintiff, without authority under his complaint, obtained a receiver, who within a few days cleared out the siphons, whereupon the injunction was dissolved, it is held that the costs of such receiver were chargeable to the plaintiff alone, and cannot be recovered from the defendant. Id.—Bespective Obligations of Parties.—The plaintiff, having the prior right, was under no obligation to render the flume suitable for carriage of the water conducted through it in subordination thereto by defendant and other parties; but the obligation of the defendant, who was the owner of the flume, was to render it suitable to carry the quantity of water which the plaintiff was entitled to have carried under the terms of the grant made to it. Id—Conclusion of Trial—Question of Costs—Proper Judgment— Seasons Immaterial.—Where at the conclusion of the trial the only question was whether the costs of the receiver could be charged against the property of the defendant, and judgment was entered in favor of the defendant, such judgment was proper, regardless of the reasons assigned therefor. Id.—Failure of Plaintiff to Contribute to Expenses of Flume— Want of Equity—Immaterial Finding.—Though the court found in accordance with the answer that plaintiff had refused to contribute to the expense of maintaining the flume as required by the grant of the right of way, and that plaintiff had therefore failed to do equity, as a reason for the judgment, yet, inasmuch as the judgment on all the facts found was right, the fact that it was prompted by that finding is not material.
16 Cal. App. 267First National Bank v. Consolidated Lumber Co. (1911)
The facts are stated in the opinion of the court.
16 Cal. App. 270Ex Parte McLaughlin (1911)
Criminal Law—Vagrancy—Insufficient Affidavit of Complaint.— An affidavit of complaint for the crime of vagrancy which merely charges that the defendant at a designated city “did then and there have no visible means of livelihood, and then and there did wander about the streets of said city at late or unusual hours of the night,” fails to negative that he did not have a sufficient cause or reason to be on the streets late at night, and does not state a public offense. Id.—Construction of Code as to “Vagrant”—"Means of Livelihood ’ not Involved—Want of “Visible or Lawful Business”—Reason for Roaming.—In the definition of a “vagrant” embodied in subdivision 6 of section 617 of the Penal Code, as “every person who wanders about the streets at late or unusual hours of the night without any visible or lawful business,” the words “without any visible or lawful business” do not refer to or include the want of any avocation or means of livelihood, but refer to the want of any sufficient or lawful business, as a reason why such person is roaming the streets at a late hour of the night. Id.—Offense of “Vagrancy,” When Complete.'—The offense of “vagrancy” is complete under subdivision 6 of section 617 of the Penal Code, if without good or sufficient reason one roams at late or unusual hours of the night, and the person so charged is a “vagrant” without reference to .his means of livelihood or avocation.
16 Cal. App. 271People v. Fisher (1911)
Criminal Law — Embezzlement — Sufficiency of Information.—An information charging embezzlement of two diamond rings which came into defendant’s care or control by virtue of his employment, as defined in section 598 of the Penal Code, is sufficient. Id.—Sections of Code Defining Embezzlement.—If the facts stated in an information charging embezzlement show a ease of embezzlement which might describe the crime so as to fall under several sections of the code defining embezzlement, it cannot be held bad, if it is complete in its charge under either of the sections. Id.—Description of Several Acts Included in Terms of Section.— An information embracing a description of the several acts included in the terms of a section does not state more than one crime. Id.—Following Language of Statute.—An information which charges the offense of embezzlement in the language of the statute, or substantially in such language, is sufficient. Id.—Requested Instructions Marked “Given” and Signed not Misleading.—Requested instructions which are marked “given” and signed by the judge could not mislead the jury, if they were allowed to take the instructions to the jury-room. Id.—Instructions as to Reasonable Doubt — Detailed Reiteration not Required.—Where the court had fully instructed the jury as to the law of reasonable doubt, and that each of the material allegations in the information must be proved beyond a reasonable doubt, before defendant could be convicted, it was not error to refuse to give instructions which treated all of the allegations separately, and presented in that form the same instruction which had been already given. Reiteration is not required, but briefly instructing on one subject is to be commended. Id.—Instruction as to Demand for Return of Rings not Required— Departure from State.—Where it appears that the defendant, instead of bringing back the rings or the money as he had promised, departed from the state, taking the rings with him, a clear case of embezzlement thereof is made out, and it was not error to refuse an instruction, under the circumstances of the case, that before the defendant could be convicted of embezzlement, it would be necessary for the prosecution to show that before the filing of the complaint demand had been made upon the defendant to either return the rings or the money agreed as the purchase price thereof. Id.—Proper Instruction as to Flight.—It was proper to instruct the jury as to the effect to be given to the evidence of the flight of the accused from the state, as a circumstance tending to show a consciousness of guilt. Id.—Fleeing With Embezzled Property—Proper Instructions.—The jury might properly have been told that proof that the defendant fled from the state carrying the property of the complainants with him was evidence of the intent of the accused to commit the crime charged, and of the embezzlement itself. Id.—Duty of Jurors—Request Embodied in Charge.—Where .the court had properly instructed the jury as to the duty of the jurors to be true to their convictions, it was not error to refuse a request to similar effect. Id.—Support of Verdict.—It is held that the evidence fox the proseen- ■ tion fully supports the verdict for embezzlement of the rings which were intrusted to him in a fiduciary capacity, and that there is no evidence for defendant to the contrary.
16 Cal. App. 277People v. Meseros (1910)
Criminal Law — Embezzlement of Monet bt Cashing Checks — Venue.—In a criminal prosecution for the embezzlement of money obtained by the cashing of checks in San Francisco, which were intrusted to the defendant in Alameda county, where there is no charge of embezzlement of the checks, the proper venue is in the city and county of San Francisco, and the prosecution therefor in Alameda county, without any evidence of the receipt or appropriation of any money therein, is without authority. Id.—Burden of Proof of Venue.—The burden is upon the prosecution to prove the venue as charged in the information. Id.—Variance in Proof—Checks not Monet—Proof of the embezzlement or larceny of cheeks, in the county of the venue, will not support a charge of embezzlement or larceny of money therein. The contention that cheeks are money is without support.
16 Cal. App. 280McKernan v. Los Angeles Gas & Electric Co. (1911)
APPEAL from a judgment of the Superior Court of Los Angeles County, and from an order denying a new trial. W. R. Hervey, Judge. The facts are stated in the opinion of the court.
16 Cal. App. 284Fresno Home Packing Co. v. Hannon (1911)
The facts are stated in the opinion of the court.
16 Cal. App. 287Kritzer v. Tracy Engineering Co. (1911)
The facts are stated in the opinion of the court.
16 Cal. App. 293Hughes Bros. v. Rawhide Gold Mining Co. (1911)
Appeal prom Order Granting New Trial—Motion upon More Than One Ground—General Order—Review.—Where the findings and judgment were for the defendant, and plaintiff in his notice of motion for a new trial, designated more than one ground for the motion, and the court made a general order granting a new trial to the plaintiff, if there is any ground upon which the court could reasonably, and in the exercise of a proper discretion, grant a new trial, the order granting it will not be disturbed upon appeal. Id.—Insufficiency of Evidence to Justify Decision — Power and Duty of Trial Court—Appreciable Conflict—Review upon Appeal.—The trial court is not only authorized, but it is its duty, to grant a new trial whenever, in its opinion, the evidence upon which the former decision was based was insufficient to justify that decision; and its action is not open to review upon appeal if there be any appreciable conflict in the evidence. Id.—General Order — Presumption upon Appeal — Statement op Counsel not Considered.—Where the order granting the new trial is general in its terms, and one of the grounds of the motion was insufficiency of the evidence, it must be presumed upon appeal that that was one of the grounds on which the motion was granted; and the mere statement of counsel as to the particular ground on which the order granting the motion was based cannot be considered in contradiction of such presumption. Id.—Action op Debt on Legal Instrument—Conflicting Evidence as to Nature—Accepted Bill op Exchange — Agency por Collection—Support op Order.—Where, in an action of debt on a legal instrument, the evidence was conflicting as to whether it was a bill of exchange accepted by two parties in writing, or whether the defendant was merely made an agent to collect the money due to one of the parties, such conflict in the evidence is sufficient to make the court’s order granting a new trial clear of just disturbance on appeal
16 Cal. App. 302Carpenter v. Ashley (1911)
Action fob Slander—Unprivileged Communication—Daw of Case— Instructions — Finding — Absence of Prejudicial Error.—It is held to he the law of the ease in this action for slander that the complaint shows upon its face an unprivileged communication, as decided upon the former appeal, and that the instructions of the court on the second trial did not ignore the doctrine of the law of the case. But as issue was taken upon the words charged, which was found in favor of the defendant, the only question is whether there is any prejudicial error in the record requiring a reversal of the judgment in favor of the defendant, which it is held does not appear. Id.—Proof of Privileged Words — Instruction — Instructions for Plaintiff not Weakened.—Where it appeared from plaintiff’s testimony on the witness-stand that some of the alleged slanderous words were uttered in a criminal prosecution against the plaintiff for subornation of perjury, in the speech of the district attorney to the grand jury, the court properly instructed the jury that words so spoken were privileged. This instruction could not be understood by the jury as weakening the instructions as to unprivileged words. Id.—Sufficiency of Proof of Unprivileged Words.—It was not necessary that plaintiff should prove all of the slanderous and unprivileged words charged to have been spoken by the defendant; but it would be sufficient to prove substantially one or more of the statements of slanderous words contained in the complaint. Id.—Newspaper Articles as to Words Spoken not Admissible—Evidence of Reporter —Refreshment of Memory from Memorandum.—Newspaper articles containing a report of one of the cases in which the alleged words are said to have been spoken were not admissible in evidence; but the reporter may refresh his memory from a memorandum made by himself, and testify from memory as to the words spoken. Id.—Proof of Words not Charged Inadmissible to Show Malice— Implied Malice.—No proof of other words not charged is admissible to show malice, which is implied from the unprivileged words charged, and need not be proved. Id.—Indictment Against Plaintiff—Attack by Plaintiff for Fraud not Permissible.—Where the defendant introduced in evidence the indictment against the plaintiff in connection with proof that words spoken against plaintiff by defendant as district attorney were privileged, the defendant was properly not permitted to show that the indictment was fictitious and fraudulent and obtained by defendant through felonious means. Id.—Evidence of Defendant—Official Report of Trial Where Words were Charged as Spoken—Death of Reporter—Refreshment of Memory.—Where defendant, as a witness in his own behalf, was asked to narrate the colloquy occurring between him and plaintiff in the collateral prosecution, and testified that he directed the official reporter to take down the evidence and all proceedings therein, and that he had examined the transcription and knew it to be correct, where the official reporter was dead, the court properly ruled that the district attorney might refresh his memory therefrom and testify in accordance with his memory, though the. transcript itself was not admissible as independent evidence. Id.—Judgment for Dismissal of Slander Suit — Undertaking for Costs—Attorneys’ Fees.—Where the judgment was for defendant for dismissal of the slander suit, in which plaintiff had given security for costs, the court properly allowed $100 as counsel fees for the defendant, under the libel and slander act. Id.—Constitutionality of Libel and Slander Act.—The libel and slander act having been passed prior to the codes and to the new constitution, it was not affected thereby, and it is sufficient that it was constitutional when originally enacted.
16 Cal. App. 310Corey v. Struve (1911)
Lease of Land for Sugar Beets—Delivery of Crop to Sugar Company—Rental—Tops Undivided—Custom as to Fertilizing—■ Injunction Against Waste.—A lease of land for sugar beet farming, which provides against waste by the lessees, and that the land is “to be farmed in accordance with the customs and directions of the Spreekcls Sugar Company, or its field superintendent,” and “at the proper time or times and when directed by said company, they will harvest, top, haul and deb ver said beets to the Spreckels Sugar Company, . . . and when so delivered, one-fourth of said beets in weight are to be delivered in the name of” the lessor, “as his property, and as the yearly rentals,” does not provide for any division of the tops, which by custom were left on the ground to be plowed under for fertilization, and the lessor is entitled to enjoin the lessee from waste by diverting three-fourths thereof, under a claim of right thereto. Id.—Distinction Between “Crop” and “Tops.”—While, in a general sense, a “crop” of beets might include the “tops” as severed from the soil, yet the lease clearly recognizes a distinction between the “crop” of beets and the “tops” in providing the whole “crop” of beets to be “topped” before delivery to the sugar company, which clearly shows that it was not the intention of the parties either to divide the “tops,” or to include the same as any part of the “crop.” Id.—Reference to "Customs” of Sugar Company—Uniform Fertilization of Leased Land With “All Tops.”—The provision in the lease that the lands were to be farmed with beets “in accordance with the customs” of the sugar company makes its custom as to the use of “tops” on leased, land controlling under the terms of the lease; and where it appears that the sugar company owned a large • number of acres of leased land, and that its uniform custom was that “all beet tops” were to be left upon the land to be used for the purpose of fertilization thereof, such custom referred to in the lease adopts the same requirement as to “all tops” on the leased land, which the lessor may enforce. Id.—Knowledge of Parties as to Such “Custom.”—It clearly appears not only that each party understood that the other assumed that there was to be no division of the beet tops, but also that each had knowledge of the uniform custom of the sugar company that all beet “tops” must be left on the ground to be plowed under for fertilization. Id.—Construction of Lease as a Contract.—Applying the principles for the .interpretation of contracts embodied in the Civil Code to the construction of the lease, the mutual intention of the parties, so far as ascertainable, must control, and any uncertainty as to the promise of the lessees must be resolved in the sense in which they believed the lessor as promisee understood it at the time of making, and construing every part of the lease together, effect must be given to the provision as to “customs” of the sugar company, as distinguished from that as to “direction.” Id.—Customs as to Leaving “Tops” Part of Contract for Beet “Farming”—Prior Custom of Lessor.—If the custom as to leaving “tops” for the purpose of fertilization be considered as part of beet “farming,” it appears to follow that defendants as lessees promised the lessor to leave the “tops” for that purpose. The word “farming” includes the cultivation and: fertilization of the soil, as well as the earing for and harvesting the crops. If such custom as to beet tops is part of beet “farming” the condition is the same as if the lessees had promised to farm the land as it had been previously farmed by the lessor, who for years prior thereto had uniformly plowed the beet tops under. This practice would be considered a part of the contract, and the lessee would be bound to pursue a similar course. Id.—Lease as to “Beet Tops” to be Construed According to Usage of Place.—In any event, the lease as a contract, if deemed silent as to the disposition of the beet tops, is to be interpreted according to the law and usage of the place where it is to be performed, or if no place for performance is specified, according to the law and usage of the place where it is made, provided such usage is known to both parties. Id.—Evidence—Presumed Knowledge.—In view of all the evidence, it is held unreasonable to assume that defendants did not know the usage of the place as to the disposition of beet tops for fertilization of the land on which the beets were grown, and the case is held to be one for the application of the principle that the general usages of a particular trade or business are presumed to be known to those engaged! in them.
16 Cal. App. 321Johnston v. Blanchard (1911)
Injunction—Breach of Covenant not to Engage in Business Sold —Sufficiency of Complaint.—A complaint in an action to enjoin the defendant from conducting the business of distributing advertising matter in specified cities or territories for advertisers in Los Angeles county, which alleges that the defendant sold said advertisement distributing business and the goodwill thereof, to plaintiff’s assignor, and upon such sale, the defendant agreed and covenanted not to engage in like business in said county, and that, in violation of said agreement and covenant, the defendant had engaged in like business in said county, and had been and still is engaged in soliciting business from plaintiff’s customers, as the result of which acts plaintiff would suffer irreparable damage, states a sufficient cause of action for relief by injunction. Id.'—Purpose of Action—Enforcement of Negative Covenant— Effect of Violation—Necessary Invasion of Bights.—The purpose of the action is the enforcement of a negative covenant, the violation of which must necessarily constitute an invasion of the plaintiff’s rights. Id.—Showing of Actual Loss of Customers not Bequired—Probable Injurious Besult—Irreparable Injury.—The right of plaintiff to enforce the covenant does not depend upon any showing of the actual loss of plaintiff’s customers, since they might, in any event, have discontinued their patronage, but it is sufficient that the facts alleged justify the conclusion of the court therefrom that injury to the plaintiff would probably result from defendant’s acts, and that such injury would be irreparable. Id.—Deprivation of Goodwill of Business.—The re-entry of the defendant into the actual management of a like business to that which he had sold, with the goodwill thereof, under the agreement and covenant made, would necessarily result in depriving plaintiff of the goodwill of the business purchased, and would hinder and obstruct the plaintiff’s successful conduct and management thereof. Id.—Effect of Solicitation of Plaintiff’s Customers—Breach of Implied Warranty—Impending Threat of Injury—Want of Adequate Bemedy.-—The fact that defendant was actually engaged in soliciting plaintiff’s customers was not only a breach of his implied warranty, under section 1776 of the Civil Code, but was also, in effect, an impending threat of injury to the plaintiff, for which the law affords no adequate remedy. Id.—Provision for Liquidated Damages for Breach not Material to Belief in Equity Under Code.—The provision in the contract for the forfeiture of five thousand dollars, as liquidated damages for a breach of the covenant, whether it be construed as a penalty for violation of the contract, or as liquidated damages, is not material to relief in equity for the enforcement of the covenant, under the provision of section 3389 of the Civil Code, which authorizes the plaintiff to waive an action at law, and to resort to equity for specific enforcement. Id.—Bights of Assignee of Business Goodwill and Contract—Enforcement of Contract.—The contract and covenant designed to protect the business and goodwill sold is assignable with the business and goodwill, which are both assignable as property, and the contract and covenant so' assigned may be enforced in equity by the assignee. Id.—Absence of Word “Assignee” in Contract Immaterial in This State—Assignability as Property.—The fact that the word “asgiguee” does not appear :n the contract and; covenant cannot affect its assignability as "property” with the business- and goodwill sold, under the law of this state, which contains no provision prohibiting such assignment. Hence, like other property it may be transferred by the authority of section 1044 of the Civil Code. Id.—Complaint Showing Violation of Covenant—Manager op ' Competing Business.—Although the complaint sets forth the employment of defendant by others, as manager of a like business, and that he, together with his wife and father, owned the business, of which he was made the manager and ’executive head by his associates in business, it shows that in violation of his covenant defendant “had entered into a similar business to that contracted to be sold.” Id.—Duty of Court to Prevent Violation op Spirit of Covenant.— It is the duty of the court to prevent the defendant from violating the spirit of his covenant, as well as of its letter. Id.—Judgment for Plaintiff—Improper Inclusion of “Successors or Assigns”—Modification.—Although the plaintiff, who derived the goodwill of the business by transfer from one with whom the contract and covenant were properly made, was entitled, under the terms of section 1674. of the Civil Code, to have the contract enforced by judgment for an injunction in his favor, yet such right cannot be extended by the judgment to “his successors or assigns,” and a judgment in that form must be ordered modified by the trial court, by striking out those words.
16 Cal. App. 329Spaeth v. Ocean Park Realty Mining & Investment Co. (1911)
Appeal from Judgment—Dismissal by Consent—Affirmance.—The , effect of the dismissal of an appeal from the judgment by consent is to affirm the judgment. Option to Rescind Sale of Mining Stock upon Dissatisfaction— Terms of Contract—Reasonableness of Time—Support of Verdict.—In an action involving an option to rescind a sale, of mining stock, upon dissatisfaction of plaintiff therewith, when the trial proceeded upon the theory that the jury wasi to determine the terms of the original contract, and the reasonableness of the time within which the rescission was sought, it is held the evidence is sufficient to support the verdict upon both issues. Id.—Conflicting Evidence as to Terms of Contract.—Although the evidence was conflicting as to the terms of the contract, yet it is held that there is enough in plaintiff’s testimony to support a special finding of the jury as to the terms of the contract, and the verdict based thereon; and that the trial court, by denying a new trial, confirmed the verdict of the jury as to the terms of the contract, and that it cannot be said that the verdict upon that issue was without support. Id.—Support of Verdict as to Reasonableness of Time—Question When for Court—Estoppel of Parties.—Although, when the terms of the agreement do not limit the time within which an option to rescind may be exercised, the law implies that it is to be performed within a reasonable time, and when the facts are undisputed or conceded, the question of reasonableness of time is for the court, yet when the court, at the request of both parties, submitted the question of the reasonableness of time to the jury, neither party is in a position to question- the action of the court, or the support of the implied finding that the contract was rescinded within a reasonable time, in the absence of any showing that the delay was unreasonable. Id.—Special Pacts Showing Reasonableness of Time.—Where the answer admitted a demand made by plaintiff’s attorney for rescission of the- stock before suit, and for a return of the money, with an offer to restore the stock, and evidence shows that such demand and offer were authorized by plaintiff, and also that when the stock was sold with the privilege of returning it, when dissatisfied, defendants assured plaintiff that he would never be dissatisfied as the stock would increase in value, and the evidence further showed that there were three similar sales of stock, upon like conditions, in one of which, shortly before suit, defendant returned the money paid, these facts and circumstances in proof indicate that the parties agreed to an indefinite time, with all rights reserved, in which plaintiff might hold the stock until it should be finally determined whether he would keep it or rescind the same, if there was no promised increase in value; and these facts tend to show a rescission within a reasonable time. Id.—Objection to Evidence—Insufficiency of Complaint—Demurrer—Review upon Appeal from Order Denying New Trial.— An objection to evidence on the ground that the complaint does not state a cause of action is in the nature of a demurrer to tho complaint, which cannot be reviewed upon appeal from an order denying a new trial.
16 Cal. App. 333Zanone v. Sprague (1911)
The facts are stated in the opinion of the court.
16 Cal. App. 347People v. Gibson (1911)
Criminal Law—Grand Larceny—Theft of Watch and Coin from Trunk—Hypothecation of Watch Unexplained—Support of Verdict.—Upon the trial of a charge of grand larceny of the defendant in stealing from the trunk of the prosecuting witness a watch of the •value of $55 and $65 in coin, which were stolen from the trunk at the same time, where the defendant offered no evidence, and it was proved that-three or four days after the theft the defendant pawned the stolen watch to a pawnbroker, and negotiated a loan thereon, claiming it as his own, a verdict of guilty as charged is justified Id.—Effect of Possession and Control of Part of Stolen Property —Circumstances Showing Pull Guilt.—The possession of part of the stolen property three or four days after the theft was, in itself, in the absence of any explanation on his part, a circumstance tending to show guilt. Though standing alone, it was not sufficient to justify a conviction, yet, when .we add the fact that he asserted ownership thereof, this circumstance, when taken in connection with the fact that the watch and coin were in the same receptacle, and were missed at the same time, warranted the jury in concluding therefrom, not only that the defendant had stolen the watch he claimed to own, but had, likewise and at the same time, stolen the $65 in coin. Id.—Slight Corroboration of Pact of Recent Possession.—Where in the absence of any evidence on the part of the defendant, it appears that he is found in possession of recently stolen goods, slight corroborative evidence of other inculpating circumstances will justify the submission of the case to the jury. Id.—Sufficiency of Proof a Question of Pact.—Whether or not the proof of guilt is sufficient is a question, in the first instance, for the jury, and, in the' second, for the trial judge in passing upon the motion for a new trial. Id.—Sufficient Evidence of Identity of Watch.—The evidence was sufficient to show the identity of the watch- stolen with that pawned, where it tended to establish that fact to the satisfaction of the jury. Id.—Proper Instructions as to Recent Possession of Stolen Property.—The court properly instructed the jury that: “If the jury believes from the evidence, beyond a reasonable doubt, that the property mentioned in evidence was stolen from the premises de-' scribed in the evidence, and received into the possession of the defendant shortly after being stolen, the failure of the defendant to account for such possession, or to show that such possession was honestly obtained, is a circumstance tending to show his guilt, and the accused is bound to explain the possession, in order to remove the effect of possession as a circumstance to be considered with other suspicious facts, if the evidence discloses any such,” and “that the mere possession of property recently stolen is not of itself sufficient upon which to convict the defendant of theft,” but “it is a circumstance tending to show guilt, but not of itself sufficient to warrant conviction.”
16 Cal. App. 350Lathrop v. National Sugar Co. (1911)
Corporations—Sale or Stock op Sugar Company—Patented Process—Alleged Fraud—Finding Against False Representations—Judgment Unsupported.—A judgment in favor of plaintiff in an action for damages for alleged fraudulent representations in inducing the sale of certain shares of stock in a sugar company having a patented process, to the plaintiff, is unsupported, where the court found that plaintiff was induced fa> make the purchase by statements made to him by defendants, “but each and all of the allegations of the complaint touching the matter of false representations claimed to have been made by the defendant' are found to be untrue,” from which it follows that the statements made by defendants were not false but true, and, being true, could not be fraudulent. Id.—Finding as to Value op Patented Process—Representation by Sugar Broker—No Finding Against Honest Opinion.—Where the court found that the company owned a patented device and process entirely practicable which enabled it to make great profits, and that one of a firm of sugar brokers did represent to plaintiff that he thought the patented process was the greatest thing in existence, and advised the plaintiff to invest in its stock, without any finding that it was material or responsive to any issue, or that it was not an honest expression of opinion, it sufficiently appears from the findings that such broker was justified in his expression of belief and opinion. Id.—Reversal Required.—No reason appearing in support of the .judgment and order appealed from, the same must be reversed.
16 Cal. App. 353Bruce v. Bruce (1911)
The facts are stated in the opinion of the court.
16 Cal. App. 358People v. Roderiquez (1911)
Criminal Law—Burglary—Joint Information as Principals—Evidence—Commission of Crime Solely by One Defendant—Joint Conviction Unwarranted.—Where two persons were jointly in-dieted as principals, and the evidence is that only one of them committed the burglary, and hauled away the stolen property alone in his own wagon, and placed it under a canvas in the tent of the other defendant, while he was asleep in his tent, with a woman, who saw the place of concealment, and informed the other defendant thereof in the morning, and where the sheriS, after searching other tents, was about to search defendant's tent, when defendant told him that the goods were under the canvas, and there is no evidence that such defendant aided or abetted in the crime, or protected the person charged or convicted thereof, under section 32 of the Penal Code, he cannot be convicted as a principal or as an accessory, and a judgment for joint conviction as to him must be reversed. Id.—Explained Possession of Stolen Goods.—Mere unexplained possession of stolen goods is not alone sufficient to warrant a conviction. It is simply a circumstance tending to show guilt, which devolves upon the possessor to account for the possession; and where it was explained to the satisfaction of the jury, as shown by their verdict against the guilty party, it cannot justify the verdict as to the possessor.
16 Cal. App. 361Coalinga Pacific Oil & Gas Co. v. Associated Oil Co. (1911)
APPEAL from a judgment of the Superior Court of Fresno County, and from an order denying a new trial. H. Z. Austin, Judge. The facts are stated in the opinion of the court.
16 Cal. App. 375Pierce v. Pierce (1911)
Mortgage'— Consideration—Regular Foreclosure—Title—Improper Annulment for Alleged Fraud op Mortgagor—Divorce.—Where a mortgage, executed by a son to his mother, was for a full money consideration advanced to the son by the mother, and her proceedings for the foreclosure thereof, under which the legal title to the land1 was acquired by her, were legal and regular, the decree of foreclosure cannot be set aside by the court at the instance of the divorced wife of the son, on the alleged ground that the title was eollusively and fraudulently vested by the son in the mother, to conceal his property, in anticipation of his commencing a divorce suit against her, in which she obtained a divorce by cross-complaint. Id.—Deed of Gift by Mother to Second Wife of Son—Former Community Property—Poverty op Divorced Wife—Alimony.—The deed of gift by the mother, after foreclosure, to the second wife of the sou, vested' the legal title in her, which is unassailable, notwithstanding the poverty of the divorced wife, and a judgment for alimony against the son, and the fact that the whole community property has thus become vested in the second wife. Id.—Rule as to Collusive Legal Proceedings—Invalidity as to Creditors.—The rule as to collusive legal proceedings which are invalid as to creditors of the mortgagor applies only where there . is fraud and collusion in the proceedings themselves whereby a security is sought to be enforced. Id.—Mere Motives Immaterial.—The law cannot attempt to control the mere motives of men in their dealings with one another, in the absence of fraud. Motive, though it may be an important element of fraud, does not alone vitiate a conveyance, nor preclude the assertion of a valid claim. Id.—Purpose of Code Section as to Fraud upon Creditors—Inapplicability to Enforcement of Valid Lien.—The purpose of section 3439 of the Civil Code, prohibiting “every judicial proceeding taken with intent to delay or defraud any creditor or other person of his demands,” is manifestly to prevent any fraudulent change in the situation of the property that would prejudice the rights of persons holding claims against the debtor. But that section cannot reasonably be held to apply to the enforcement of a valid existing lien upon specific property where every requirement of the statute is complied with, and no element of fraud appears in the proceeding to enforce the lien. Id.—Finding as to Concealment of Property in Anticipation of Divorce Against Evidence.—It is held that the finding of the court in reference to the concealment of the property in anticipation of the action for divorce is against the evidence, there being no proof that the mother had any knowledge or intimation as to the future intentions of her son when the foreclosure suit was brought and the legal title of the son obtained under the foreclosure of her valid mortgage, or at any time within sixteen months thereafter. The fact that the property was encumbered for more than value is persuasive evidence' that there was no intention of concealing the title by foreclosure. Id.—Motive to Prevent Suit for Malpractice.—The fact that one of the motive considerations in securing the foreclosure of the mortgage at the time when it was foreclosed was to prevent a possible suit for malpractice against the mortgagor, as a physician, cannot affect the validity of the foreclosure, where there is nothing to show that there was any demand existing in a legal sense against him, and no question was made as to the bona fides of the mortgage, and the assured title which such- a foreclosure would give to the mother as mortgagee. Id.—Finding of Ultimate Fact Against Evidence—Reversal.— Where the finding of an ultimate fact is- against the evidence, and it is not controlled by sufficient probative facts, the judgment cannot be properly awarded upon the findings in favor of the appellant, but the judgment and order denying a new trial to the appellant must be reversed.
16 Cal. App. 388Kaufman v. All Persons, Etc. (1911)
Contract to Sell Land—Exercise op Option to Purchase—Deed in Escrow Obtained by Payment—Payments on Secured Debt— Prevention not Precluding Purchase.—"Where an agreement to sell land provided for an option to purchase, and that the sum paid thereon was to be credited on purchase money, and that upon payment of the amount due from the vendor to a national bank, at which a deed in escrow was placed, it should be delivered to plaintiff, and that the residue of the purchase price was to be paid in monthly installments, under a deed of trust from the vendor to a savings and loan society, until the debt thereto should be fully paid, it is held that the evidence clearly shows that the option was exercised, that the deed in escrow was obtained by payment, and that the residue of the purchase money would have been fully paid, except as prevented by a clandestine payment of the residue by the vendor, which could not impair the legal rights of the purchaser. and the property having been expressly bought subject to the deed of trust to that society, the purchaser was entitled, in case of loss by fire, to have the proceeds of the policy credited on the payments assumed by her. Id.—Insurance Payable to Savings and Loan Society—Loss op Improvements by Pire—Proper Credit on Payments Assumed by Purchaser.—Where the vendor had been required by the savings and loan society to have the improvements insured for its benefit, and to make any loss payable thereto, and the purchaser had been expressly required to assume the whole indebtedness payable thereto, Id.—Assignment of Policy from Vendor not Required—Absence of Power of Vendor.—The vendor had no power to assign the policy; and therefore no assignment of the policy from the vendor to the vendee was required. Id.—Vendee Equitable Owner of Insured Property.—A vendee, under a contract of sale, in possession, has the .equitable title to the property, and with such title necessarily acquires an equitable interest in any insurance policy on the premises agreed to be conveyed, subject only to defeat of the equitable title by nonperformance of conditions. Id.—Clandestine Payment of Residue by Vendor After Loss by Eire—Tender by Vendee—Refusal—Remedy not Allowable.— Where the vendor made a clandestine payment of the residue due to the savings and loan society, after the loss by fire, and refused a tender of such payment, and inequitably required further payment of the amount of the policy, it appearing that such payment was voluntarily made, without requirement under the terms of payment, the vendor is not entitled in equity to enforce a vendor’s lien for the amount of such payment, and will be afforded no legal • remedy in this action, .after deliberately refusing the friendly tender made him before suit.
16 Cal. App. 403Thomas v. Wentworth Hotel Co. (1911)
APPEAL from a judgment of the Superior Court of Los Angeles County, and from an order denying a new trial. Curtis D. Wilbur, Judge. The facts are stated in the opinion of the court. I. M. Golden, Rothchild, Golden & Rothchild, and J. M. & H. L. Rothchild, for Appellants.
16 Cal. App. 416People v. Burns (1911)
APPEAL from a judgment of the Superior Court of San Diego County, and from an order denying a new trial. T. L. Lewis, Judge. The facts are stated in the opinion of the court.
16 Cal. App. 424Smith v. Elderton (1911)
The facts are stated in the opinion of the court.
16 Cal. App. 424In re Stevens (1911)
Habeas Corpus—Writ Denied.—The application for the writ of habeas corpus in this case is denied under the provisions of the Code of Civil Procedure as to justices of the peace, and under the provisions of the Penal Code regulating their authority as committing magistrates, and under the authority of the decisions cited by the court.
16 Cal. App. 424In the Matter of Stevens (1911)
16 Cal. App. 427People v. Barnnovich (1911)
Criminal Law—Joint Information—Separate Trial—Testimony of Codefendants Admissible for Prosecution.—Where several defendants are jointly charged with the same offense, and one of them elects to be tried separately, his codefendants are competent witnesses for the people on his separate trial; and the fact that they could not have been compelled to testify, nor to incriminate themselves and that they were warned by the court that their testimony might be used against them, is of no concern to the defendant on trial, and is a matter over which he has no control. Id.—Evidence—Testimony of Accomplice—Admissibility—Statutory Pule as to Corroboration.—The statutory rule that a conviction cannot be had upon the uncorroborated testimony of an accomplice does not go to its admissibility, but only to the effect of the evidence of the accomplice, as dependent upon corroborative evidence. Ib.—Proof of Commission of Offense by Accomplices.—Accomplices, if otherwise corroborated, may testify to the commission of the offense, and may establish it by their testimony. Id.—Use of Dynamite With Intent to Injure Inmate of Dwelling —Corroboration of Accomplices—Support of Verdict.—In a prosecution for the use o-f dynamite with intent to injure a dwelling and the inmate thereof, it is held that evidence that the shoes taken from the person of the defendant on trial fitted, perfectly with the footprints found near where the explosion occurred, and that such defendant had dynamite in his possession and on his person shortly before and after the explosion occurred, and that he had repeatedly threatened to “fix Mr. Hartman with dynamite because he would not give him a job,” was1 a sufficient corroboration of the testimony of the accomplices, and with their testimony is sufficient to warrant the verdict of guilty. Id.—Corpus Delicti Established Prior to Testimony of Accomplices—Order of Proof not Prejudicial.—It- is held that the corpus delicti was sufficiently established before the testimony of the accomplices was given; but that, even if it were otherwise, that the defendant was not prejudiced by the order in which the trial court permitted the presentation of the prosecution’s proof. Id.—Conflict of Testimony—Support of Verdict.—The contention of defendant that the evidence upon the whole case does not support the verdict is answered by the fact that the evidence for the people and for the defendant is in evident conflict. Id.—Admissible Testimony—Comparison of Footprints With Shoes of Defendant.—The testimony of a witness as to the result of a comparison made in his presence between footprints found at the scene of the crime, and shoes shown to have been taken from the person of the defendant when he was arrested, was: an admissible statement of a fact based on the personal observation of the witness. Id.—Refusal of Continuance After Close of Plaintiff’s Evidence —-Discretion not Abused.—It is held that the trial court did not abuse its discretion in refusing to grant a continuance to the defendant after the impanelment of the jury and the close of plaintiff’s evidence. The application was not seasonably made. Id.—Insufficient Affidavit.—The affidavit of defendant for a continuance was insufficient in failing to set forth any fact or facts from which the trial court could have fairly inferred that the attendance of the alleged witness could have' been procured within a reasonable time. Id.—Information not Charging Two Offenses—Intent to Injure Person and Property.—The information does not charge two offenses by alleging two intents in the commission of one offense in the use of dynamite to injure a person and his property. Section 601 of the Penal Code, which defines the offense of which the defendant was convicted, enumerates a series of acts any of which separately or all together may constitute the offense, and they may be charged in a single count; and all of them, if alleged together, constitute but one and the same offense. Id.—Particular Intent or Acts not Required to be Stated in Verdict.—The verdict of the jury is not required to set forth the particular intent with which the offense was committed nor the particular acts constituting the offense. Id.—Sufficiency of Statement of Offense in Judgment.—The judgment must be considered and construed in its entirety, and it is sufficient, when so considered, if it appears that the court adopted the verdict of the jury as part of the judgment and sentenced the defendant accordingly. This was the equivalent of a detailed designation of the offense for which the conviction was had; and, in connection with the court’s general designation of the offense, was a substantial compliance with the provisions of section 1207 of the Penal Code, and afforded the defendant, ample protection against a second prosecution for the same offense.
16 Cal. App. 433Helfrich v. Romer (1911)
Action upon Notes—Support op Findings—Separate Property Loaned to Dependant—Nonpayment prom Partnership Funds. It is held in this action upon two notes that the evidence supports the findings of the court that the notes were the separate property of plaintiff, loaned through her husband to defendant personally, and were properly assigned by the husband to plaintiff, as alleged in the complaint, and that the money was not loaned to- the husband to be used in partnership business between the husband and defendant, and that the notes were not paid out of partnership funds, as alleged- in the answer, in bar of the action. Id.—Previous Unauthorized Action on Notes—Plea in Abatement not Sustained.—Where the evidence shows that the notes were placed in the hands of an attorney for collection, and that he, without authority from plaintiff, commenced an action upon the notes in the name of a third party, a plea in abatement on account of such action pending is not sustained. Id.—Action for Partnership Accounting by Defendant—Wife Sued not a Partner—Insufficient Plea in Abatement.—A pending action by defendant against the husband and wife for a partnership accounting, the wife not being a partner, cannot be‘pleaded in abatement of the wife’s action on the notes. Ib.—General Bule as to Pleas in Abatement—Plaintiffs must be the Same in Both Suits.—It is a general rule, as to pleas in abatement, that before one suit may be pleaded in abatement of a second suit, it must appear that the plaintiffs are the same in the two suits. Id.—Defense not Applicable to Cross-suits.—The defense of an action pending does not apply to cross-suits. Id.—Finding as to Pendency of Action for Accounting—Judgment for Plaintiff—Beview upon Appeal from Order.—Where the court found the pendency of the action for an accounting, and gave judgment for the plaintiff nevertheless, if this be conceded te be error, as claimed by the appellant, it does not require or justify a new trial, but can only be corrected upon an appeal from the judgment, which is not taken. It presents a ease, if the contention of the appellant be correct, that it shows a ground for abating this action, of a judgment not supported by the findings; but that the judgment is not supported by the findings is not a ground for a new trial and cannot be reviewed' upon appeal from the order denying a new trial.
16 Cal. App. 437Sheehy v. Minaker (1911)
APPEAL from an order of the Superior Court of Monterey County denying a motion for relief from a default in the service of a bill of exceptions, under section 473 of the Code of Civil Procedure. B. V. Sargent, Judge. The facts .are stated in the opinion of the court.
16 Cal. App. 441Holland v. Eastern Outfitting Co. (1911)
Unlawful Detainer—Pleading—Additional Rental Before Suit— Demurrer for Misjoinder Properly Overruled—Damages.—In an action for unlawful detainer, where the three days’ notice to quit and demand for possession was based upon one month’s rent past due, but the complaint was filed after two additional months’ rent became due and were unpaid, the fact that each of the two additional months’ rent were pleaded in two additional counts, referring to the first count, merely shows one cause of action for damage for the unlawful detainer set forth, which might have been pleaded in one count; and the complaint - is not demurrable for misjoining claims for rent due with a cause of action in unlawful detainer. Id.—Continuance of Unlawful Possession—Damages—Rent Recoverable to Time of Trial.—Upon the expiration of the three days without the payment of the rent demanded, or the surrender of possession, the further detention thereof became unlawful, and for continued unlawful possession and detainer the plaintiff: would be entitled to recover as damages the amount of rent due and unpaid to the time of the trial. Ed.—Proper Pleading—Amount Due and Unpaid Before Suit—Rent Due After Suit not Requirf.d to be Pleaded.—The complaint of the plaintiff properly pleaded the amount of rent due and unpaid before suit brought, but rent accruing thereafter to the time of trial may be recovered without pleading the same.
16 Cal. App. 443Schroeder v. Mauzy (1911)
APPEAL from an order of the Superior Court of the City and County of San Francisco. Geo. H. Buck, Judge presiding. The facts are stated in the opinion of the court.
16 Cal. App. 452Belden v. Farmers & Mechanics' Bank (1911)
Lease of Farm for Hops—Construction—Purchase of Improvements and Appliances by Lessor—Payment of Value—Interest of Lessee—Liens—Assignment.—A lease of farm land requiring the lessees to plant a certain portion thereof to hops, and to “provide all wines, hop-houses and appliances reasonably required,” and providing that at the expiration of the lease the lessors would buy the same, and pay therefor the reasonable value thereof at that time, to be determined by the parties, or by arbitration, if they do not agree, leaves to neither of the lessees any interest in the improvements or appliances as such which can be the subject of a mortgage or attachment lien, but only an assignable interest in the money to be paid by the lessor, the title being vested in the lessor as purchaser by the terms of the lease. Id.—Effect of Assignment to Bank of All Interest of Lessee.—An assignment by the lessee to a bank as its creditor of “all the interest of the lessee in and to the improvements placed on said premises under and in pursuance of the terms of the lease” has the effect to-transfer to the bank the right of the lessee to be paid for the improvements in future at the expiration of the lease, which is the only right that the lessee could have transferred under such assignment. It was not necessary that the lease should' be assigned to the lessor, to effect an assignment of the money to become due under the covenants of the lease. Id.—Validity of Assignment—Vested Bight to be Enjoyed and Determined in Future.—It is unimportant to the validity of the assignment, which transferred a vested right to be enjoyed at a specified time in the future, that the extent of the right was not at the time of such transfer determined, but was also to be determined in the future by the method prescribed in the lease. Id.—Absence of Fraud in Bank—Consideration—Notice of Assignment to Lessor—Corroboration of Evidence.—No question having been raised as to the fraud of the bank, its notes against the lessee, past due, were a sufficient consideration for the assignment of the lessee thereto, and the notice of such assignment given by the bank to the lessor before any adverse proceedings were commenced sufficiently corroborated the evidence for the bank as assignee of the rights of the lessee against the lessor.
16 Cal. App. 461Napa Valley Packing Co. v. San Francisco Relief & Red Cross Funds (1911)
APPEAL from a judgment of the Superior Court of the City and County of San Francisco, and from an order denying a new trial. Thos. F. Graham, Judge. The facts are stated in the opinion of the court.
16 Cal. App. 472Woodson v. Winchester (1911)
The facts are stated in the opinion of the court.
16 Cal. App. 478People v. Jacobs (1911)
The facts are stated in the opinion of the court.
16 Cal. App. 480Morcom v. Baiersky (1911)
APPEAL from a judgment of the Superior Court of Los Angeles County, and from an order denying a new trial. Walter Bordwell, Judge. The facts are stated in the opinion of the court.
16 Cal. App. 484Clifton v. Herrick (1911)
APPEAL from a judgment of the Superior Court of Los Angeles County, and from an order denying a new trial. Leon F. Moss, Judge. The facts are stated in the opinion of the court.
16 Cal. App. 489MacLay Co. v. Superior Court (1911)
Order Setting Aside Default—Affirmance upon Appeal as to One Defendant—Ambiguity—Power of Trial Court.—Where an alleged order setting aside a default as to one defendant named was affirmed upon appeal, and the order was recognized as ambiguous as to other defendants joining in the motion, and the power of the trial court to relieve them from default, on sufficient grounds, was "recognized, notwithstanding a general demurrer filed, the trial court upon such, affirmance had power to treat the original order as meaning what it intended) and as having in fact set aside the default as to all of the defendants joining in the motion. Td.—Court not Estopped by Bill of Exceptions upon Appeal—Question of Eact—Trial upon Merits.—The superior court was not es-topped from determining the question of fact as to the terms of the order made by-it, because the judge thereof certified to the correctness of the bill of exceptions settledi for use upon an appeal taken from an order setting aside a default as to one defendant, which was affirmed upon appeal. The form of the certificate may have been inadvertently made; but whatever may be the reason therefor, the court had the right to assume that the order in fact made left it free to open the way to a trial upon the merits, which is always to be desired: Id.—Writ of Prohibition not Allowable—Question of Pact as to Terms of Order.—A writ of prohibition will not lie to prevent a trial upon the merits, where the sole controversy as to the jurisdiction of the court arise® out of a question of fact as to the terms of an order vacating a default, ancl there is no want of jurisdiction apparent upon the face of the application for the writ.
16 Cal. App. 499Busick v. Superior Court (1911)
PETITION for writ of prohibition to the Superior Court of Sacramento County. P. J. Shields, Judge. The facts are stated in the opinion of the court. O. G. Hopkins, A. L. Shinn, and Charles G. Busick, for Petitioner.
16 Cal. App. 506Saul v. Moscone (1911)
APPEAL from a judgment of the Superior Court of the City and County of San Francisco. J. C. B. Hebbard, Judge. The facts are stated in the opinion of the court.
16 Cal. App. 512Stephens v. Pacific Electric Railway Co. (1911)
APPEAL from a judgment of the Superior Court of Los Angeles County, and from an order denying a new trial. Frederick W. Houser, Judge. The facts are stated in the opinion of the court. Gibson, Trask, Dunn & Crutcher., J. W. McKinley, Robert C. Gortner, and Norman S. Sterry, for Appellant.
16 Cal. App. 515Harrison v. Cousins (1911)
Order Changing Place or Trial—Appeal—Dismissal—Unaijthenticated Record—Noncompliance With Rule or Law.—An appeal from an order changing the place of trial will be dismissed, where no attempt was made by the judge to comply with rule XXIX of the supreme court requiring that, “in all cases of appeals from the orders of the superior court, the papers and evidence used or taken on the hearing of the motion must be authenticated by incorporating the same in a bill of exceptions, except when another mode of authentication is provided by law,” where there was no attempt of the judge either to comply with this rule, nor with the procedure authorized by section 953a of the Code of Civil Procedure, but the certificate of the judge is radically defective. Id.—Appeal Taken Under Section 951—Nonexcepted Oases—Bill op Exceptions Required.—Where an, appeal under section 951 of the pode of Civil Procedure is taken from any order other than an order granting or refusing a new trial, although the papers required to be furnished on such other appeals to the supreme court are enumerated, yet as no' other mode of authentication is therein provided for, the only mode of authentication permitted is that required in rule XXIX of the supreme court, by incorporating the same in a bill of exceptions.
16 Cal. App. 519Justy v. Erro (1911)
APPEAL from a judgment of the Superior Court of Fresno County, and from an order denying a new trial. H. Z. Austin, Judge. The facts are stated in the opinion of the court.
16 Cal. App. 532Loomis v. Connecticut Fire Insurance (1911)
APPEAL from a judgment of the Superior Court of Sonoma County, and from an order denying a new trial. Emmett Seawell, Judge. The facts are stated in the opinion of the court.
16 Cal. App. 548Northern Assurance Co. v. Stout (1911)
The facts are stated in the opinion of the court.
16 Cal. App. 560Bartley v. Fraser (1911)
Venue—Change to Locality of Realty and Residence of Personal Defendant—Validity of Contract of Sale—Escrow-—Bank not a Necessary Party.—Where plaintiffs and the personal defendant entered into a contract, by which defendant was to sell one-half interest in a mine and water rights situated in Mariposa county, where such defendant resides, and they deposited the contract and title papers in escrow with the bank made eodefendant, and the escrow agreement has not been performed, and plaintiffs becoming dissatisfied with the sale .are seeking to rescind it for alleged fraud, but have no cause of action against the bank, which is located in San Francisco, the presence of the bank as a co defendant cannot affect the right of the personal defendant to change the place of trial of the action to Mariposa county. Id.—Cause of Action to Determine Interest in Real Property— Local Action—Place of Trial.-—A cause of action to determine an interest in real property is local in its nature, and the action should be commenced and must be tried in the county in which the land lies. Id.—Personal Cause of Action—Right to Change Venue to Residence.—If it be conceded that plaintiffs’ alleged cause of action is personal and transitory in its nature, nevertheless the personal defendant would be entitled to change the place of trial to- the county of his residence, if it remains true that the plaintiff has no cause of action against the bank as a codefendant, and that the personal defendant, on the facts pleaded, is the _ only party necessary or proper to be made a defendant in the action. Id.—Character of Action — How Determined—Cause of Action Stated—Belief not a Criterion.—The relief demanded in a complaint does not indicate the character of the action; but it is the substance of the cause of action which determines its character, to be ascertained from the allegations of the complaint, without regard to the relief prayed for. Ordinarily the plaintiff is entitled to and will be given only such relief as the facts constituting the cause of action will warrant. Id.—Prayer for Return of Papers to Plaintiffs—No Ground for Return.-—-Although the plaintiff prays for the return of the papers from the bank to the plaintiffs, yet it appearing from the allegations of the complaint that the conditions upon which the papers deposited with the bank in escrow were to be delivered by the bank to the plaintiffs have not been complied with, the complaint will neither warrant nor support a decree requiring the bank to deliver the papers to the plaintiffs. Id.—Injunction Sought Against Bank—Order of Court to Bank as Agent of Both Parties—Joinder of Bank not Required.— The joinder of the bank as a eodefendant to enjoin it from delivery of the papers to defendant was unnecessary. The court may order it, as the agent of both parties, without such joinder, to deliver no papers to either party pending the litigation between them. Id.—Plaintiffs’ Cause of Action—Rescission—Damages—Lien for Purchase Money Paid.—The complaint of the plaintiffs, in so far as it states a cause of action, is for rescission of the original contract of purchase, coupled with damages, and perhaps a lien upon the real property for the portion of the purchase price already paid. Id.—Elimination of Bank as Party—Affirmance of Order for Change of Venue.—With the bank eliminated as a party to the controversy, the order of the court changing the place of trial must be affirmed, whatever views may be taken of the nature of the action.
16 Cal. App. 567Creditors' Union v. Lundy (1911)
APPEAL from a judgment of the Superior Court of the City and County of Sap Francisco, and from an order denying a new trial. John Hunt, Judge. The facts are stated in the opinion of the court.
16 Cal. App. 572Carver v. San Joaquin Cigar Co. (1911)
The facts are stated in the opinion of the court.
16 Cal. App. 574McMurray v. Bodwell (1911)
APPEAL from a judgment of the Superior Court of the City and County of San Francisco, and from an order denying a new trial. James M. Troutt, Judge. The facts are stated in the opinion of the court.
16 Cal. App. 583People v. Dresser (1911)
The facts are stated in the opinion of the court.
16 Cal. App. 586Walsh v. Bradshaw (1911)
APPEAL from a judgment of the Superior Court of the City and County of San Francisco, and from an order denying a new trial. J. M. Seawell, Judge. The facts are stated in the opinion of the court.
16 Cal. App. 589John Bollman Co. v. S. Bachman & Co. (1911)
Action Against Partnership — “Common Name”—Construction of Code — Pleading — Amendment — Adding Members as Parties— Statute of Limitations — Judgment Affirmed.—In an action against a partnership, as transacting its business “under a common name,” pursuant to section 338 of the Code of Civil Procedure, which provides that “the associates may be sued by such common name,” in which, prior to an amendment to the complaint adding the members of the partnership as parties, the statute of limitations had run against them as individuals, their demurrer to the amended complaint on the ground that the action was barred as to them was properly sustained, without leave to amend as to them, and the judgment rendered in their favor must he affirmed upon appeal. Id.—Sole Defendant Under Code Provision—Form of Judgment Before Code Amendment.—In an action brought under section 388 of the Code of Civil Procedure, the association designated by the common name is the only proper party defendant; and the only judgment authorized thereunder prior to the amendment of 1907 was a judgment binding the joint property of the associates. Id.—Copartnership Sued by Common Name—Distinct Legal Entity.. A copartnership sued under section 388 of the Code of Civil Procedure by its common name, as that section stood when this action was commenced, is to be regarded as a distinct legal entity. Id.—Amendment of Code Pending Suit — Judgment not Taken Against Defendant Served — Failure to Appeal—Modification not Permissible.—The scope and effect of the amendment of 1907 of section 388 of the Code of Civil Procedure pending suit, upon a judgment not taken against the individual property of a defendant served with summons, cannot be considered, nor can it be modified where no appeal is taken therefrom; but the only appeal taken is from a wholly distinct and separate illegal judgment against members of the partnership, whose rights were barred by the statute when made parties defendant to the action.
16 Cal. App. 594Mitchell v. Moses (1911)
Community Property—Title in Name of Wife—Presumption of Separate Property—Parol Evidence Admissible.—Where title to real property is taken in the name of the wife; by a deed of bargain and sale from other grantors, the presumption that it is her separate property raised by section 1-64 of the Civil Code is one of fact, which may be overcome in a proper case, to show that the purchase was made with community funds, and is community.property subject to the control of the husband. Id.—Ejectment by Wife Against Tenant of Husband—Intervention by Husband—Cross-complaint to Quiet Title—Error in Evidence.—Where the wife sued the tenant of the husband in ejectment, and the husband was allowed to intervene with a cross-complaint to quiet his title, as against the wife, and judgment was rendered for the wife in ejectment, and against the husband on his cross-complaint, it was reversible error to refuse to allow the husband, after proving that he paid the purchase money, to testify to a conversation had by him with his wife about the purchase of the property prior to the purchase, and to refuse to allow him to answer questions which would have elicited an explanation as to why the property was taken, in the name of the wife, and which might have shown that it was not intended as between them that the property should be her separate property, or should be intended as a gift. Id.—Rule as to Equitable Defense in Ejectment Inapplicable to Complaint of Husband to Quiet Title.—The rule that title can • be pleaded only as an equitable defense in an action of ejectment is inapplicable in ease of a complaint by the husband to quiet his title to community property as against the wife, filed by way of cross-complaint by leave of court, as an intervener in such action. In such case the title relied upon by the husband is a legal and not an equitable title. Id.—Rule as to Property Acquired During Marriage—Control of Community Property.—Property acquired by either spouse during marriage, unless it be acquired by gift, devise or descent, belongs to the marital community, of which the husband has absolute control, except that he may not give it away without the wife’s consent. Id.—Title to Community Property—Conveyance to Either Spouse. The title to property may be vested in the marital community by a conveyance to either spouse. Id.—Trust, When Created in Wife—Deed of “Separate Property.” It is only when the deed to the wife expressly conveys the property to her as her “separate property” that it may be said that she takes the legal title in trust for the community if it be shewn that the consideration was paid from community funds. Id.—Ownership, When Vested in Husband—Bargain and Sale Deed to Wife.—The law vests the ownership of all community property in the husband, notwithstanding a bargain and sale deed thereof is made to the wife. The title to the community property is vested by law in the husband by such deed to the wife.
16 Cal. App. 600Courteney v. Standard Box Co. (1911)
APPEAL from an order of the Superior Court of the City and County of San Francisco, denying a new trial. Geo. A. Sturtevant, Judge. The facts are stated in the opinion of the court.
16 Cal. App. 618People v. Ayhens (1911)
Criminal Law — Burglary—Joint Charge — Separate Trials—Evidence Against Codefendant—Proof of Corpus Delicti—Premises Burglarized.—'Where persons jointly charged with burglary were separately tried, evidence was admissible upon the separate trial of this- defendant that the separately tried codefendant was found, in the possession of goods stolen from the premises burglarized, to show the corpus delicti, in that the premises described had been burglarized, though it may mot be competent evidence that this defendant had committed the offense charged. IB.—Evidence—Conversation of Arresting Officer With Codefendant—Absence of Defendant—Failure to Object—Review 'upon Appeal.—The admission in evidence of a conversation had between the arresting officer and the codefendant, witho-ut the presence of the defendant on trial, who failed to urge any objection thereto at the trial, cannot be reviewed or considered as erroneous upon appeal. Id.—Hearsay Evidence — Prejudicial Error — Conversation After Arrest in Presence of Police Officer—Accusation by Codefendant—Denial.—The testimony of a police officer that, several days after the arrest of the co defendant, the defendant was arrested, and that subsequently in his presence and in the presence of both parties, the codefendant charged the defendant with the commission of the crime, and that defendant denied the accusation, and in response to questions put by the officer explained how he happened subsequently to meet the co defendant, was inadmissible hearsay, and the refusal of the court to strike it out as such was prejudicial error. Do.—Declarations of Co-conspirator Inadmissible After Arrest.— Such declarations cannot be justified as that of a co-conspirator after arrest and termination of any possible conspiracy. The declarations of a co-conspirator, to be admissible, must be made during the life of the conspiracy and: in furtherance thereof, and not upon and after its consummation. Id.—Evidence of Conspiracy not Shown.—It is held that the record upon appeal of the defendant is barren of any evidence which would tend to show the existence of a conspiracy to commit the / crime charged. Id.—Rule as to Admissibility of Declarations in Presence of Defendant—Explanation of Conduct.—The rule as to the admissibility of declarations made in the presence and hearing of the defendant applies only when there is something in the conduct of the accused person in response to the statement that is material to the issue. lb.—Declarations of Codefendant Prejudicial if not Showing That Defendant’s Conduct and Reply Indicated Guilt.—The declarations of the codefendant could have been admissible only when excluding prejudicial hearsay, and showing that the defendant’s conduct and statements in reply indicated guilt, and were not those of an innocent man. In such ease, it is not the statements themselves which can be received as evidence, but it is only the guilty conduct or incriminating reply of a defendant in response to an accusation of crime or statements implicating him in its commission, that constitute relevant and competent evidence against him. Id.—Mute Admission of Guilt Under Accusation.—Ordinarily, when a defendant, under conditions which fairly afford him an opportunity to reply, stands mute in the face of an accusation of crime, the eircumstanefi of his silence may be taken as an admission of guilt. Id.—Effect of Prompt Denial—Accusatory Statements Inadmissible.—But if the accused defendant promptly and fully denies the charge, the aeeutatory statements standing alone are not in any sense competent evidence of the defendant’s guilt, and should in such a contingency be excluded from the consideration of the . jury. Id.—Effect of False Statement.—If it should be shown that the accused had made a false statement as to his innocence, the fact would still remain that the accusation cannot be considered as evidence, since, in such ease, it is the falsehood and not the accuse, tion that indicates a consciousness of guilt and weighs against the defendant. Id.-—Puling not Sustained—Incompetent Accusation—False Statement not Shown.—It is held that the record shows no false statement, nor any ground' upon which the incompetent accusation by the codefendant against the defendant could be received in evidence, and that its erroneous admission demands a reversal.
16 Cal. App. 626Edwards v. Brockway (1911)
Street Superintendent of San Diego—Duties Under City Charter, Under the provisions of the freeholders’ charter of the city of San Diego, approved in 1899, the board of public works has the control of the streets and of all improvements and repairs thereof, subject to city ordinances, and the superintendent of public streets is not charged with the improvement or repairs thereof, otherwise than as specially directed so to do by a city ordinance or an order fronj the board of public works. He is charged with the duty to see that the laws, ordinances, orders and regulations relating to public streets and highways be carried into execution, and to superintend the cleaning of streets, and keep himself informed of their condition. Id.—Alleged Negligence—Improvement of Avenue to Grade—Unimproved Street—Knowledge of Danger—Nonliability on Bond. Where the superintendent of streets of San Diego is charged with alleged negligence on his official bond, on the ground that after the acceptance of an improvement of an avenue to grade, an unimproved street crossing the same was left in a dangerous condition, the fact that he had knowledge of such dangerous condition cannot make him liable on Ms official bond for the injury of one who fell from the unimproved street to such improved street, in the absence of any order or direction to him to improve such unimproved street or to remove such danger. Id.—General Municipal Corporation Act Inapplicable.—The general municipal corporation act, though referring to cities of the same class as San Diego, organized thereunder, is inapplicable to a city organized under a freeholders’ charter. Id.—Inapplicability of Vrooman Act to Official Bond—Negligence not Shown.—Where it does not appear that the avenue was improved under the Vrooman Act, and it is made to appear that the street superintendent had no authority to make repairs at the expense of the city without special authority, the Vrooman Act cannot apply to liability on Ms bond. Id.—Validity of Bond not Passed upon.—It is held that in view of the disposition of the appeal, it is unnecessary to pass upon questions raised as to the validity of the bond. Id.—Motion to Dismiss Appeal.—Where a motion by the respondent to dismiss the appeal was adversely passed upon by the supreme court before the transfer of the cause to this court, its ruling must be deemed a final disposition of the motion, and it cannot be renewed in this court.
16 Cal. App. 632Brode v. Gosslin (1911)
APPEAL from a judgment of the Superior Court of Los Angeles County, and from an order denying a new trial. W. P. James, Judge. The facts are stated in the opinion of the court.
16 Cal. App. 634Osborn v. Hamilton (1911)
Action on Note—Auswer—Denials—Want op Consideration—Fraud —Appeal—Support op Findings.—In an action upon a note, upon which defendant appealing was an apparent comaker, whose answer denied the delivery of the note to plaintiff or that he was its holder, or that it was unpaid, and pleaded want of consideration therefor, and that defendant’s signature was procured by fraud of the other parties set forth, it is held upon such defendant’s appeal that the court, as to all of the issues joined by the complaint and the appellant’s answer, made finding in favor of plaintiff, upon ample evidence in support thereof. lb.—Production op Note at Trial—Prima Facie Support op Findings.—The production of the note at the trial was1 prima facie evidence of the facts found. Id.—Immaterial Finding Outside Issues—Escrow—Security por Note—Terms not Found.—Where the court found a fact not pleaded nor made an issue by consent of the parties that a deed to certain real estate was delivered to a third party in escrow to secure the payment of the note, which deed prior to the suit was returned to and accepted by defendants, without finding the terms of the escrow, such security, for aught that appears, may have been exhausted by such return; but such finding, being wholly outside of the issues, is immaterial, and has no place in the record. Id.—Claim op Suretyship by Appellant—Facts not Pleaded or Proved.—Where the defendant appealing claims that, notwithstanding Ms apparent character as a principal maker of the note, he was in fact a surety for the other comakers, it is a sufficient answer to such claim that it is not alleged nor proved that he acted in any other character than as one of the makers of the note. Ib.—Depense op Suretyship—Essential Facts to be Pleaded.—A joint maker of a note, in order to defend on the ground that he is merely a surety for Ms comaker, must not only plead such fact, but must further allege that the payee knew of the fact, and consented to deal with Mm in that capacity.
16 Cal. App. 637Spear v. United Railroads (1911)
• APPEALS by different appellants from a judgment of the Superior Court of the City and County of San Francisco, and from an order denying a new trial. John M. Hunt, Judge. The facts are stated in the opinion of the court.
16 Cal. App. 666Jules Levy & Bro. v. A. Mautz & Co. (1911)
The facts are stated in the opinion of the court.
16 Cal. App. 671Bartlett Springs Co. v. Standard Box Co. (1911)
Action for Breach of Contract—Sale of Boxes Required for One Year.—It is held that a contract between the plaintiff and the defendant, by the terms of which the defendant was to furnish and the plaintiff was to take and pay for certain kinds of wooden boxes needed by the plaintiff in its business, for the period of one year, is valid, and that where the defendant failed to comply with the contract, the plaintiff could recover in an action for its breach the difference between the price named in the contract and the price which plaintiff was compelled to pay in the market to supply such need. Id.—Mutuality of Obligation.—The contract was not wanting in mutuality of obligation, since it was binding upon both parties; and if plaintiff had refused to accept the boxes 'tendered under the contract by the defendant, the defendant could have recovered damages for its breach against the plaintiff. The plaintiff could not go outside of the contract to buy elsewhere without a violation of the contract; and the defendant could not, without such violation, refuse plaintiff’s demands for compliance therewith. Id.—Consideration of Obligation—Acceptance of Offer.—Where there is no consideration for a promise or offer, there is no binding obligation; yet whenever the acceptance of an offer imposes an obligation on the acceptor, then a consideration is present and a binding contract results. Id.—Impossibility of Performance Neither Pleaded nor Shown.— It is held that the impossibility of the performance of the contract was neither pleaded nor shown, nor was it any issue in the case nor found upon; but that it appears, on the contrary, that plaintiff was able to perform on his part, and when defendant broke the same, did get the required boxes as it needed them.
16 Cal. App. 676Bauhofer v. Crawford (1911)
The facts are stated in the opinion of the court.
16 Cal. App. 682People v. Knapp (1911)
Criminal Law—Murder—Support of "Verdict.—It is held, upon a review of the evidence, that the verdict found against the defendant appealing of guilty of murder in the first degree is supported by the evidence. Id.—Slight Apparent Motive.—Although there was but slight apparent motive for the killing, yet proof of motive is never indispensable to a conviction. Id.—Death from Fracture of Skull—Abnormal Thickness—Opinion of Autopsy Surgeon.—"Where the death was caused by the fracture of the skull of the deceased, it was competent for the autopsy surgeon, after testifying that the deceased had an abnormally thick skull, to testify to his opinion that it would require a heavy blow with some instrument to cause that fracture. Id.—Rule as to Expert Evidence of Physician or Surgeon.—Any witness familiar by experience with the treatment of wounds, particularly a physician or surgeon, may give an opinion as to the manner in which a mortal wound was probably inflicted, and as to the kind of a weapon used; and whether a particular wound could have been produced by a particular instrument is a question on which the opinion of experts can be asked. Id.—Motion to Strike Out Answers Properly Denied.—A motion to strike out an answer as not responsive and as argumentative was properly denied, as being too. general, where part of the answer is clearly responsive.
16 Cal. App. 687C. Ganahl Lumber Company v. Weinsveig (1911)
Mechanics’ Liens—Abandonment or Contract—Notice—Completion by Owner—Date not Found—Unsupported Finding—Continuous Occupation—Personal Judgment—Reversal.—In a consolidated action to enforce liens under a valid building contract, in which it appears that within less than thirty days after abandonment of the contract the owner filed a notice of cessation of labor by the contractor, and immediately took possession, solely to complete the building, where the date of its completion is not found, and a finding that the owner was in continuous occupation and use of the building from the date of his possession, is against the evidence, the court’s judgment by which it was determined that the appellant lien claimants must by limited to a personal judgment against the contractor, must he reversed, and the cause remanded for proper findings. Id.—Construction of Code—Constructive Completion by Owner’s “Occupation or Use”—Inapplicability to Actual Completion.— The concluding portion of section 1187 of the Code of Civil Procedure, providing that “the owner’s occupation or use of a building, improvement or structure . . . shall be deemed equivalent to a completion thereof,” has no application to1 the possession created by the owner in assuming to proceed with the actual completion of an unfinished building as to which the contractor had abandoned his contract. Id.—Insufficient Cessation of Labor—Time for Filina Liens not Started by Notice.—There was no sufficient cessation of labor for thirty days to create a constructive completion of the work, by the notice filed by the owner, to start the time for the filing of notices of lien, the cessation being for a much less period, as proved by the owner of the building, before he took possession to complete the building. In such case, the filed notice of cessation of labor cannot deprive the lien claimants of their right to file their liens in time after the final completion of the building.
16 Cal. App. 716People v. O'Donnell (1911)
APPEAL from a judgment of the Superior Court of Sutter County, and from an order denying a new trial. H. S. Mahon, Judge. The facts are stated in the opinion of the court.
16 Cal. App. 718People v. Kafoury (1911)
Criminal Law—Assault With Deadly Weapon With Intent to Murder—Evidence—Location and Character of Wound.—Upon a prosecution for an assault with a deadly weapon with intent to murder the prosecuting witness, such witness was properly allowed to testify as to the location, nature and serious effect of the wound inflicted by one of the shots fired by the defendant, as evidencing the intent to murder such witness. Id.—Specific Intent to Kill an Essential Element of Crime Charged.—A specific intent to kill is an essential element of the crime of an assault^ with a deadly weapon with intent to commit murder. Id.—Intent to Kill a Question of Fact—Relevant Evidence.—The intent to kill is a question of fact to be determined from all the circumstances of the case; and in determining such question, the nature of the assault and the location and character of the wound inflicted are relevant and competent evidence of the intent necessary to support the charge made. Id.—Evidence of Physician as to Resulting Miscarriage from Brutal Assault After Shot—Res Gestae.—The evidence of a physician as to the miscarriage of a child as the result of a brutal assault immediately after the shooting was competent to show the brutal and inhuman treatment by defendant of the prosecuting witness, as part of the res gestae of the crime charged, and as tending to show the malicious intent with which the shot was fired, and an abandoned and malignant heart from which the law implies malice, Id.—Evidence—Permanent Lameness as Result of. Shot.-—-Where the shot fired passed through the thigh bone of the prosecuting witness, evidence was admissible to show that it resulted in the permanent lameness of the prosecuting witness, as tending to show the deadly force and violence of the shot fired at her by the defendant.
16 Cal. App. 722Hicks v. Desmond (1911)
APPLICATION for writ of mandate to the city clerk of the City of Sacramento. The facts are stated in the opinion of the court.
16 Cal. App. 731People v. Currie (1911)
Criminal Daw—Information for Bape—Complaint Sworn to by District Attorney.—An information for rape committed by the defendant by sexual intercourse with a female under the age of sixteen years is not affected by the fact that the complaint was sworn to by the district attorney. The statute does mot disqualify him from swearing to the-complaint before the magistrate, nor does it prescribe who shall make oath thereto. Id.—Fairness of Trial not Affected.—The fairness of the trial was not affected by the fact that the district attorney swore to the complaint, but is to be judged by what occurred at the trial. His having made the complaint before the magistrate would not necessarily indicate greater zeal or interest in the ease than the subsequent filing of the information. Id.—Proof of Bape—Testimony of Prosecutrix.—It is held that the appellate court cannot say that the undisputed testimony of the prosecutrix, which has been accepted as true by two juries, contains any such improbabilities as at once to import disbelief in them or to suggest that in believing them the jury showed that it acted-under passion or prejudice. Id.—Birth of Child from Intercourse—Period of Gestation—Conflicting Views of Experts.—Where the testimony of the prosecutrix showed a child born eight months and three days after the intercourse, as the sole result thereof, and the testimony of expert physicians was conflicting as to whether it could be told whether a birth at that period of gestation was premature or not, it cannot be said that the evidence on that subject showed passion or prejudice, or warrants a reversal. Id.—Intercourse of Prosecutrix With Another Person—Offense of Defendant not Mitigated—Proper Instruction.-—The court properly instructed the jury that if they were satisfied to a moral certainty and beyond a reasonable doubt that the defendant had intercourse with the prosecutrix on or about the time alleged in the information, and that if she was then under the age of sixteen years, and not the wife of the defendant, it was their duty to- find him guilty, and that it is no defense that some other persons may have had such intercourse, nor does it mitigate the offense of the defendant. Id.—Opinion of Court as to Defendant’s Guilt not Expressed.—It is held that by such instruction the court could not have been understood by the jury to have intended- any opinion as to the guilt or innocence of the defendant, especially where the court fully instructed the jury as to its duty to be guided by the evidence. Id.—Cautionary Instructions—Uncorroborated Evidence of Prosecutrix— Bequests Properly Befused.—The court properly instructed the jury that “the law does not require, in this character of a case, that the prosecuting witness' be supported by another witness or other corroborating circumstances, but does require that you examine her testimony with caution,” and properly refused cautionary requests of the defendant warning the jury of the danger of finding a verdict against the defendant for the crime of rape upon the uncorroborated testimony of the prosecutrix alone. Id.—Definition of Corroboration—Bequest Properly Befused.—It is held that the court properly refused the request of the defendant for the definition of corroborative evidence, and that it must be connected with the defendant, both on the ground that corroborating evidence was not indispensable, and- that the defendant claimed that there was no corroborative evidence calling for a definition. Id.—Bequests Substantially Embodied in Charge.—Bequested instructions which are substantially embodied in the charge of the court were properly refused on that ground. Id.—Bequest as to Axiom—Refusal not Error.—It was not error to-refuse a request, “that it is a well-established axiom that it is better that many guilty ones may escape than that one innocent man be convicted.”
16 Cal. App. 737People v. Rameriz (1911)
Criminal Law—Review upon Appeal—Nonappearance for Defendant.—In a criminal case, where the record was brought up automatically, under the statute then in force, and there is no appearance of any counsel for the defendant, the appellate court has no duty to search the transcript for possible errors, and is at liberty to affirm the judgment and order appealed from. Id.—Conviction for Rape upon Female Under Sixteen—Examination of Record—Error not Found—Support of Verdict.—Where the defendant was accused of the crime of rape upon a female under the age of sixteen years, it is held that upon an examination of the record, it appears that the defendant had a fair trial, that the jury were fully and correctly instructed as to the law, and that the evidence was sufficient to justify the verdict.
16 Cal. App. 738People v. Schweichler (1911)
Criminal Law—Perjury as to Eight to Vote—Insufficient Information—Materiality of False Oath not Shown.—An information for perjury by false testimony as to the defendant’s right to vote in a certain precinct, in which the whole basis of the charge is that defendant falsely swore that he had been working for twenty days last past for a person named, who is not alleged to be a resident of the voting precinct, and which fails to show that such false oath was as to any material matter, fails to state the offense of perjury. . Id.—Code Provision—"Material Matter”—Bule of Criminal Pleading.—Under section 118 of the Penal Code, only a person is guilty of perjury to whom an oath has been properly administered, and who, “willfully and contrary to such oath, states as true any material matter which he knows to be false.” As a general rule, in the absence of a statute to the contrary, a criminal pleading for perjury must show conclusively that the testimony given or assertion made by defendant, and/ charged to be false, was material to the issue on the trial of which he was sworn. Id.—Modes of Pleading Materiality.—The materiality of the alleged false statement may be shown by the criminal pleading in two ways: either by setting forth the nature of the issue and the evidence given thereon, so that, as matter of law, it may be said that the testimony upon which the perjury was assigned is material to the issue; or by showing an action at issue in a court of competent jurisdiction, the testimony given, its willful and felonious falsity, coupled with an "averment that it was material to the issue. Id.—Determining Sufficiency of Pleading—Testimony Given.—In determining the sufficiency of the criminal pleading, the court is confined to the testimony set forth therein, and cannot assume any fact or circumstance connected therewith which may be known to other persons not revealed by such pleading. Id.—Information Charging No Offense — Beversal — Dismissal of Information.—Where the information filed fails to charge an of-' fense, the cause should be reversed with directions to dismiss the information.
16 Cal. App. 743Maze v. Langford (1911)
APPEAL from a judgment of the Superior Court of Santa Clara County, and from an order denying a new trial. P. P. Gosbey, Judge. The facts are stated in the opinion of the court.
16 Cal. App. 747Maze v. Langford (1911)
The facts are stated fully in case No. 826, [ante, p. 743, 117 Pac. 929], except the facts peculiar to this appeal, which are stated in the opinion of the court.
16 Cal. App. 748People v. Thompson (1911)
Criminal Law—Murder—Evidence op. Accomplice—Corroboration.— Upon a criminal prosecution for murder, the rule that the testimony of an accomplice, called as witness to the offense, must be corroborated, does not require that the evidence of the accomplice shall be corroborated in all of the essential elements of the crime charged; but, on the contrary, it is sufficient if the corroborating evidence, considered by itself, tends in some way to connect the defendant with the commission of the crime, even though, if it stood alone, it would be entitled to but little weight as evidence of guilt. Id.—Murder Caused by Abortion-—Evidence of Accomplice Fully Corroborated.—Where the offense charged was of murder caused by an abortion, it is held, upon a review of the evidence corroborating the testimony of an accomplice, it is fully sufficient, of itself, to connect the defendant with, the commission of the crime. Id.—Non-necessity of Abortion to Save Life.—If it be conceded that it was for the prosecution to show the non-necessity of causing an abortion to save life, and not upon the defendant to show its necessity, it is held that its non-necessity to save life was fully established by a showing on the part of the people that the deceased was twenty-three years of age and in good health at the time of the operation, and that when she died therefrom, the defendant cut her body into parts, covered it with corrosive acid, and buried it clandestinely, and remained silent when accused of the crime. Id.—Testimony op Nurse as Accomplice—Placental Tissue Seen in Vessel After Abortion.—The testimony "of the nurse who was an accomplice to the operation that she knew what placental tissue was, and that after deceased had been in the operating room she saw such tissue there in a vessel, was admissible, both as testimony to a fact and the evidence of one sufficiently experienced and informed on the subject to be regarded as an expert. Id.—Requested Instruction as to Hypothetical Question to Expert not Based on Evidence — Refusal not Error — Common Sense op Jury.—It was not error for the court to refuse a requested instruction, that if a hypothetical question propounded to an expert witness embraced a statement which was not supported by the evidence, the opinion of the expert in answer thereto would be valueless, since it embodies no principle of law, and would have simply told the jury what their own common sense would have informed them.
16 Cal. App. 754Nicholson v. Nicholson (1911)
Action for Divorce—Denial of. Husband’s Motion to Change Venue —Conflicting Evidence as to Husband’s Residence — Review upon Appeal.—In an action for divorce brought in a county which had for years been the home of both parties, where the defendant husband went to another county which he claimed as his residence, and his motion to change the place of trial thereto was denied upon conflicting evidence as to his residence within the county in which the action was brought and his departure therefrom merely to annoy Ms wife, the action of the court in denying the motion is controlling upon the appellate court, and will not be disturbed.
16 Cal. App. 756People v. Spencer (1911)
The facts are stated in the opinion of the court.
16 Cal. App. 761Carver v. San Joaquin Cigar Co. (1911)
Order Denying New Trial — Motion and Grounds not Shown in Statement—Review upon Appeal.—An order denying a motion for a new trial cannot be reviewed upon appeal where the settled statement of the case used on the hearing of the motion fails to show the motion itself or the grounds upon which the moving party relied for a new trial. Id.—Notice of Intention in Transcript not Part of Statement— Grounds Stated not Considered.—A notice of intention to move for a new trial, printed elsewhere in the transcript, and stating certain grounds for the motion, but not incorporated in the statement of the case used upon the motion, cannot be considered as part of the record upon appeal from the order denying the motion for a new trial. Id.—Stipulation to Correctness of Transcript not Estopping Respondent.—The fact that the respondent stipulated to the correctness of the transcript does not preclude him from objecting to the sufficiency of the statement to support a motion for a new trial. Id.—Appeal from Judgment—Review—Use of Settled Statement— Errors of Law.—Though the appeal from the order denying a new trial cannot be reviewed upon the settled statement, yet the appellate court may nevertheless consider and determine the appeal from the judgment, in so far as the alleged errors of law occurring at the trial are concerned, upon the settled statement of the ease used upon the hearing of the motion for a new trial and found in the record on appeal. Id.—Action on Assigned Note—Evidence—Consideration—Presumed Title.—Where on • the trial of an action upon an assigned note the plaintiff gave evidence that he paid value for the note, and proved by the payee that the note was given to extinguish preceding indebtedness to him from the defendant for the amount of the note, and produced the note in evidence, the consideration of the note and transfer were shown, and the title of the plaintiff as holder is presumed from possession of the note indorsed by the payee. Id.—Insufficient Defense and Proof—Parol Agreement to Vary Terms of Note.—A defense based upon a parol agreement between the payee and the defendant to vary the terms of the note, and parol evidence offered by defendant in support of such defense, or as to any similar parol agreement, could neither be pleaded nor proved as against the plaintiff. Id.—Bules as to Parol Evidence.—While parol evidence may be received in a proper case to show a want of consideration or to impeach the consideration of a note, yet the existence and breach of a contemporaneous oral1 agreement entirely at variance with the written agreement of the parties as finally expressed in the note cannot be shown by parol evidence. Id.—Parol Agreement to Defraud Creditors of Payee not Pleaded Incompetent Evidence.—Though it is a good defense to a note, if specially pleaded, that it was executed and delivered in further, anee of a common design on the part of the payee and the maker to defraud the payee’s creditors, yet if not pleaded as new matter, it cannot be established under a general denial; and offered evidence that the consideration of the note was founded on an attempt to defraud and defeat the creditors of the payee, not specially pleaded, was properly rejected as incompetent. Id.—Small Offset to Note not Pleaded—Evidence Properly Excluded.—A claim that the payee was indebted to the corporation in the sum of $500 at the time of the execution of the note, though it would have been a good defense, as against the payee, by way of setoff as against him, if it were pleaded as such, yet where it was not pleaded, evidence thereof was properly excluded as wholly immaterial to the issues. Id.—Production of Note in Evidence—Testimony as to Consideration for Assignment not Material—Impeachment of Note not Pleaded.—Where the plaintiff, by producing the indorsed note in evidence, proved both its consideration and his title thereto, he was not required to show the consideration for the transfer of the note to him until the maker, by proper pleadings, had established the want, failure or illegality of the consideration of the note itself; and his testimony as to his title to the note is not material in the absence of such pleading. Id.—Proper Befusal of Cross-examination of Plaintiff as to Title to Note.—In the absence of such pleading the court properly refused to allow the defendant to cross-examine the plaintiff as to the amount of the consideration paid by plaintiff for the note, for the purpose of showing that the note belonged to the payee and not to the plaintiff. Id.—Insufficient Pleading as to Title.—It is not enough to plead merely that the note sued on is the property of another and not of the plaintiff, without alleging in addition a substantial defense against the person alleged to be the real owner of the note, which could not be pleaded as a defense against the plaintiff as the prima facie legal owner of the note. Id.—Protection of Maker from Further Claim.—Where no bad faith appears, plaintiff’s prima facie title to the note by reason of possession under indorsement by the payee is not subject to rebuttal so long as the maker is protected from further claim by the payment of the judgment, no matter who is the real or tona fide owner of the note, whether the payee or the plaintiff, the defendant having failed to plead any defense as against either of them. Id.—Authority of Note Signed by President of Corporation—Support of Finding-,-Appeal from Judgment After Sixty Days.— The claim of appellant that the note executed to the payee by the president of the corporation was not authorized or sanctioned by the corporation involves the sufficiency of the evidence to support the trial court’s finding that the note was in fact executed and delivered to the payee for a valuable consideration, by and with the sanction of the corporation defendant, and cannot be considered upon appeal from the judgment taken more than sixty days after its rendition, which precludes any review of the sufficiency of the evidence to sustain the trial court’s findings of fact.
16 Cal. App. 771People v. Perry (1911)
The facts are stated in the opinion of the court.
16 Cal. App. 773Ridgely v. Abbott Quicksilver Mining Co. (1911)
Foreclosure of Mortgage—Removal of Receiver—Appointment of Another After Judgment—Insufficient Showing.—Where the trial court removed a receiver, appointed before judgment, in an action for foreclosure of a mortgage, and appointed another receiver after the judgment of foreclosure, without any showing wMch justified such appointment, and without any testimony opposed to the inference that the parties who were directly interested in the preservation of the property were capable and willing to do everything that should be done, the order of removal will be affirmed, and the last order of appointment will be reversed. Id.—Appointment of Receiver must Appear Necessary.—A party to an action should not, against his will, be subjected to the onerous expense of a receiver, unless one may be lawfully appointed, and Ms appointment is obviously necessary to the protection of the opposite party. Where it does not sufficiently appear that the last appointment of another receiver after the final judgment of foreclosure was necessary to protect anyone’s interest in the property, the order making such appointment cannot be permitted) to stand.
16 Cal. App. 775South Yuba Water Co. v. City of Auburn (1911)
Canal Over Road in Unincorporated Town—County Bridge Over Canal—Repair and Reconstruction by City—Contract Let to Water Company—Liability of City.—Where a water company constructed its canal conducting water for distribution for useful purposes over a traveled road running through an unincorporated town before any highway was declared therein, and several years thereafter the county constructed and maintained a bridge at' a street crossing in said town, which was subsequently cared for and repaired by said town after it became an incorporated city, and ten years after such incorporation said city ordered bids let for the reconstruction of an improved bridge at such crossing, and the contract therefor was let to the water company as the lowest bidder, the city thereby became liable to the water company for the contract price for the construction of said new bridge. Id.—Power of City Under Charter.—The city had power under its charter “to establish, build and repair bridges . . . and to con-' struct. . . culverts.” Id.—Construction of Civil Code—Canal Owner not Required to Construct Bridges Laid Out After Construction of Canal.— The provision of section 551 of the Civil Code, enacted in 1872, long after the canal in question was constructed, which was in 1851 before any highway was established, has no application to make it the duty of the water company to construct bridges over highways established after the construction of its canal. Ib.—Duty of Municipality.—Where a municipality lays out or establishes a street or highway which crosses a canal or ditch previously constructed by its owner, the duty of erecting the necessary bridge at such crossing devolves upon the municipality, and not upon the owner of the canal or ditch. Id.—Construction of New Bridge for City—Interest—Presentation of Claim.—No interest could be allowed in favor of the water company, as contractor for the city, until after the presentation of the claim for allowance by its board of trustees, and their rejection thereof. It canno-t be allowed from any earlier date. Id.—Complaint on Claim—Denial of Motions to Strike Out not Part of Judgment-roll—Review upon Appeal from Judgment. Where motions to strike out parts of the complaint on the rejected claim were denied, the order denying the same is no part of the judgment-roll, and cannot be reviewed upon appeal from the judgment on the judgment-roll. Id.—Construction of Amended Code—Order Refusing to Strike Out Unaffected.—Though, under the amendment of 1907 to section 670 of the Code of Civil Procedure, orders striking out a pleading in whole or in part are made part of the judgment-roll, yet orders refusing to strike out are not included, but are governed by the preceding law, under which they are no part of the judgment-roll.
16 Cal. App. 781Carley v. Vallecita Mining Co. (1911)
The facts are stated in the opinion of the court.
16 Cal. App. 783Hogan v. Superior Court (1911)
Prohibition—Office of Writ—Question of Jurisdiction.—The sole question -which is presented or may be considered in a proceeding upon a writ of prohibition is one of jurisdiction. The office of the writ is to arrest “the proceeding of any tribunal, corporation, board, or person, whether exercising functions judicial or ministerial, when such proceedings are without or in excess of the jurisdiction of such tribunal, corporation, board or person.” Id.—General Rule as to .Writs Going to Jurisdiction—Errors not Beviewable.—Neither the writ of prohibition nor any other writ, whose sole object is to try the question of jurisdiction, can be made to subserve the purpose of a writ of error, or be extended in its corrective scope to the review of errors of law committed by an inferior tribunal, corporation, board or person within the jurisdiction. Id.—Jurisdiction of Appeal from Justice’s Court—Sufficiency of Evidence to Justify Verdict not Beviewable.—Where the superior court has jurisdiction of an appeal from a justice’s court, the question of the sufficiency of the evidence to justify the verdict in the justice’s court cannot be considered or reviewed upon the writ of prohibition. Id.—Decision of Appeal in Particular Way not Beviewable.—The superior court has jurisdiction to determine the appeal from the justice’s court as it deems best, whether it be to affirm, modify or reverse the judgment of the justice’s court; and prohibition will not lie to compel its decision in any particular way. Id.—Insufficient Complaint in Criminal Action—Prohibition Applicable.—If the complaint in a justice’s court should, show on its face that it has no jurisdiction of a criminal action, appealed to the superior court, prohibition will lie to prevent the superior court from entertaining such appeal. Id.—Complaint Showing Cítense.—Where the complaint in the justice’s court shows with sufficient clearness that it has jurisdiction of the offense charged, the superior court has jurisdiction upon appeal, and prohibition will not lie in such case. Id.—Charge in Words op Statute—Destruction op Crop op Grain —Alternative Punishment.—A complaint charging the misdemeanor defined by section 604 of the Penal Code, for the destruction of a standing crop of grain, in the language of the statute, with an averment of ownership of the grain, is sufficient, without alleging that the case is one “for which a punishment is not otherwise prescribed by this code.” Ib.—Bule as to Exceptions in Statutes—Pleading.—It is only when an exception in a statute is included in the description of the offense charged that the exception must either be affirmed, if applied to- the description, or negatived, if not so applied, but it must be pleaded in either case, as constituting part of the offense charged. But where the exception is no part of the offense charged, but deals merely with the matter of punishment for the crime described in the statute, it need not be pleaded. Id.—Construction op Section 604 as to Punishment.—The words of section 604, “in any case for which a punishment is not otherwise prescribed by this code, is guilty of a misdemeanor,” simply means, in ease no other punishment is elsewhere prescribed, that the crime defined shall be punished as a misdemeanor by the infliction of the penalty prescribed therefor in section 19 of the Penal Code. Id.—Other Code Provisions as to Distinct Similar crimes - not Exceptional.—The felony provided for in section 600 of the Penal Code, for the burning of any growing or standing grain, and the misdemeanor punishable for malicious injury to the freehold, by maliciously injuring or severing anything attached thereto, or the produce thereof, in section 602 of the Penal Code, are distinct, though similar, crimes, but not exceptional to- the offense described in section 604 of that code, and need not be pleaded or referred to in describing the offense punishable thereunder. Id.—Duty op Court in Disposing op Appeal—Unjust Verdict.— Though the action of the court in the disposition of the appeal from the justice’s court cannot be controlled by the writ of prohibition, yet, where its opinion in affirming the decision clearly shows that the verdict was a blot upon justice, it was its plain duty, in that ease, having power to do so, to- order it set aside, and to give the appealing defendant an opportunity to be tried, according to due process of law.