160 Cal.

Volume 160 — California Reports

105 opinions

160 Cal. 1J. M. Winchester v. North British & Mercantile Insurance (1911)
Fire Insurance—Separation of Damaged and Undamaged Propetry after Fire—Damage Greater than Amount of Policy.—The failure of the assured to comply with a provision in a policy of fire insurance requiring that damaged and undamaged property should be separated and cared for in such manner as to protect the undamaged portion from further deterioration, does not avoid the policy, if the loss, exclusive of the highest appraisement of the undamaged portion of the property, was greater than the full amount of the policy. Id.—Damage to All of Insured Property.—Under such provision, there was no necessity of a segregation or inventory by the insured, if all the insured property was damaged, although in varying degrees. Id.—Appraisement — Delay of Insurer in Demanding — Waiver of Bight.—Where a policy of fire insurance provides, that in the event of a disagreement as to the amount of the loss, the same shall be ascertained by appraisers, but makes such amount “payable sixty days after due notice, ascertainment, estimate, and satisfactory proof of the loss have been received” by the insurer, “including an award by the appraisers when appraisal has been required,” the action of the insurer in allowing sixty days to pass after receiving formal proofs of the loss from the insured, without making a demand for an appraisal, is a waiver by it of the right to an adjustment of the loss by appraisement, and entitles the insured to maintain an action on the policy. Id.—Appraisement Must be Demanded by Insurer.—Under such circumstances, the appraisal must be demanded by the insurance company, otherwise the insured need not submit to that form of settlement.
160 Cal. 9McQuiddy v. Worswick Street Paving Co. (1911)
Street Assessment—Specifications—Provision Imposing Liability on Contractor during Progress of Work.—An assessment for a street improvement constructed under the act of 1893 and the amendments thereto of 1899 (Stats. 1893, p. 33; 1899, p. 40) is not invalidated by reason of the inclusion in the specifications for the work of a provision which, after stating that the work should be done in accordance with such specifications, required, under a subheading of “Safe Guards,” that “the contractor shall use all necessary precautions to prevent accidents to persons and property by providing sufficient fences, guards, barriers, temporary bridges, lights, etc., and shall be responsible for all loss, damage or injury to persons, property or the work due to the nature of the work or the action of the elements.” Id.—Damages during Progress of Work.—Properly construed, such provision refers exclusively to damages arising during the progress of the work, and not to damages arising subsequently thereto caused by the nature of the work when completed. Id.—Contractor Liable for Own Negligence.—A provision in a contract for a street improvement which makes the contractor responsible for the consequences of his own negligence or carelessness in the construction of the improvement contracted for is not improper or fatal to the validity of the street assessment. ■ . Id.—Reference to General Ordinance for Specifications.—The specifications for a contemplated street improvement need not be set out at length in the resolution of intention or in the resolution ordering the work to be done; it is sufficient if they are referred to therein by reference to the specifications on file in the clerk’s office and to an ordinance prescribing the specifications. Id.—Provision for Adding to or Deducting from Work.—Where an ordinance of a municipality establishes general specifications for street improvements to be done either under the Vrooman Act or under street improvement acts, resulting in assessments upon private property, or by the city under direct contract to be paid for out of the general funds, a provision therein to the effect that no work or materials for which a contract has been made under such specifications shall be changed or omitted or added to, except upon order of the board of trustees, asnd that the price to be added to or deducted from the contract price shall be stated in the order, does not give the city trustees any power to change the contracts for street work made under assessment acts. Id.—Furnishing Apparatus Owned by City to Contractor.;—A provision in such specifications, that “any materials, apparatus, or plant owned by the city may be furnished, loaned, or hired to the contractor, upon such terms as may be stipulated in the contract therefor,” does not invalidate the assessment proceeding, in that it would allow unfair competition between bidders. Id.—Employment of Competent Men by Contractor.—A requirement in such specifications that the contractor shall employ no one but competent and faithful laborers, and that he shall dismiss any employee who fails to perform the work satisfactorily to the city authorities, is not improper. Id.—Composition of Street Pavement—Use of Stone Dust “as Required.”—A provision in the specifications that in the composition of the wearing surface of the street the contractor shall use stone dust “as required,” is to be construed in connection with other provisions requiring the component materials to be mixed in such proportions that. the mixture will pass a designated test. It does not mean that so much shall be used as may be required by the city engineer or the city trustees.
160 Cal. 18Matter of Application of Winston (1911)
APPLICATION for a writ of Habeas Corpus directed to the Sheriff of Alameda County. The facts are stated in the opinion of the Chief Justice.
160 Cal. 21In Re the Estate of Gregorson (1911)
Husband and Wipe—Marriage of Person of Unsound Mind—Absence of Consent—General Bule as to Showing Invalidity.—In the absence of any statute to the contrary, the great weight of authority supports the rule that where for want of the requisite mental capacity on the part of one of the parties there has been no consent, a purported marriage is an absolute nullity, and will be so declared in any court and in any proceeding where the question may arise whether during the lifetime of both of the parties or after the death of either of them. Id.—Control of Legislature over Marriage Status.—Such general rule may be altered by statute, inasmuch as the legislature has full control of the subject of marriage, and may fix the conditions under which the marital status may be created or ended, as well as tho effect of an attempted creation of that status. Id.—Void and Voidable Marriages.—Under the provisions of the Civil Code, a clear distinction is made between void marriages, and those which are capable of being annulled. Id.—Marriage of Person of Unsound Mind under Civil Code—Annulment of Marriage.—Under subdivision 3 of section 82, and other sections of the Civil Code, the marriage of a person of unsound mind, but not entirely without understanding, is not a legal nullity. Such a marriage is valid and existing, until it has been judicially annulled, in an action brought under section 83 of that code “by the party injured, or relative or guardian of the party of unsound mind, at any time before the death of either party.” Id.—Validity of Marriage—Cannot be Collaterally Attacked.—If the parties who are alone recognized by the code as entitled to have such marriage annulled do not, during its existence, see fit to avoid it, a stranger to the marriage cannot question its validity in a collateral proceeding. Id.—Public Administrator cannot Question Validity of Marriage.— A public administrator, in proceedings for the appointment of an administrator of a deceased woman’s estate, cannot question the validity of her marriage, on the ground that she was of unsound mind when it was contracted, in order to defeat the prior right of administration of one basing his claim to letters of administration on such marriage.
160 Cal. 28Bruce v. Bruce (1911)
APPEAL from an order of the Superior Court of Kings County, made after an interlocutory judgment in an action for a divorce, awarding alimony to the wife. John G. Covert, Judge. The facts are stated in the opinion of the court.
160 Cal. 30Clark v. City of Los AngeLes (1911)
Municipal Corporation — Los Angeles — Acquisition oe Electric Works—Bonded Indebtedness.—Under subdivision 7 of section 2 of article I of the charter of the city of Los Angeles (Stats. 1889, p. 457), as amended March 12, 1909, (Stats. 1909, p. 1291), the city has the power to establish, operate, and maintain electric works wherewith to supply the inhabitants of the city with electricity for private use, and to incur a bonded indebtedness therefor. Id.—Electricity for Motive Power—Municipal Function—The supplying of electricity for motive power is a public service in which a municipal corporation may engage. Id.—Constitutional Inhibition on Acquisition of Public Utilities.— There is no provision of the state constitution which either expressly or by implication forbids the acquisition, ownership, or operation of any such public utilities by a municipality, or prohibits the granting to a municipality of the power to acquire, own, and operate them. Id.—Resolution Declaring Purpose of Bonded Indebtedness—Acquiring and Constructing Described Improvement—Engaging in Business Beyond Municipality.—A resolution of the city council declaring the purpose of a bonded indebtedness to be that “of acquiring and constructing a certain revenue producing municipal improvement, to wit, works for generating and distributing electricity for the purpose of supplying said city and its inhabitants with light, heat, and power, including the acquisition of lands, water-rights, rights of way, machinery, apparatus and other property, and the construction of electric generating works, sub-stations, transmission and distributing lines, conduits and other works necessary therefor,” does not disclose any intention on the part of the municipality of selling surplus electric power to consumers outside of its boundaries. Id.—Secret Intent to Engage in Business Beyond City Limits— Validity of Bonds Not Affected.—A secret or avowed intention of the city to engage in the business of selling electric power to consumers beyond its municipal boundaries, even if without authority, would not affect the validity of bonds authorized and issued solely for the legitimate purpose of supplying electricity to the city and its inhabitants. Id.—Supplying Electric Power for Private Use—Dedication to Public Use.—A dedication of electric works and the product thereof to the purpose of supplying electric power to the inhabitants of the city for their private use is a dedication to a public use. Id.—Franchise—Construction in Favor of Public.—Grants of franchises and special privileges by the state to private persons or corporations are to be construed most strongly in favor of the public, and where the privilege claimed is doubtful nothing is to be taken by mere implication as against public rights. Id.—Non-Exclusive Franchise—Municipality May Engage in Similar Business.—Where a grant of such franchise by the state or some municipality thereof is not, by its terms, made an exclusive franchise, and the city in which it is to be exercised is not, by the law or ordinance granting it, forbidden or prevented from competing, the city may establish its own works for the same purpose and engage in the same public service within the city, although it may thereby injure or practically destroy the business of the holder of such franchise. Id.—Constitutional Grant of Use of Streets—Grant Not Exclusive as against MUNICIPALITY.—Section 19 of article XI of the state constitution, providing that in any city where there are no public works owned and controlled by the municipality for supplying the same with water or artificial light, any individual or corporation . . . shall have the privilege of using the public streets and of laying down pipes and conduits therein, so far as may be necessary for introducing into and supplying such city and its inhabitants either with gaslight or other illuminating light, or with fresh water for domestic and all other purposes, upon the condition that the municipal government shall have the right to regulate the charges thereof, cannot be construed to grant an exclusive franchise in the streets, or to prevent a city from establishing and operating such public waterworks or lightworks, notwithstanding the fact that private persons or corporations are using the streets in operating works of the same kind. Id.—Construction of Constitution — Mandatory and Prohibitory Provisions..—The statement in section 22 of article I of the state constitution, that its provisions are mandatory and prohibitory, does not require a different interpretation of section 19 of article XI. It refers to the effect, not to the meaning, of the constitutional provisions, and declares that they are imperative and paramount, according to their true meaning, ascertained by the rules of construction otherwise applicable thereto. Id.—Cities Having no Municipal Works—Acceptance of Constitutional Offer to Use Streets.—The fact that the constitutional right to use the streets is offered only in cities having no municipal works, raises no implication or inference that the city shall not establish municipal works after the constitutional offer to private parties has'been accepted and used. Id.—Constitution Does Not Grant Eight to Engage in Business-Cities Acquire Power to Administer Public Utilities from State.—Section 19 of article XI of the constitution does not purport to grant the right to engage in the business of furnishing water, gas, or electricity for general use. It presupposes such power or right, and merely gives the company or person having it the privilege of ■using the public streets as a way for its conduits. Cities have no inherent power to engage in administering such public utilities. They obtain such power by grant from the state. Id.—Cities Not Prohibited by Constitution from Administering Public Utilities.—There is nothing in the language of section 19, or in the object which it was intended to accomplish—namely, to prevent the giving of the exclusive use of the streets to private persons or companies—which indicates that it was intended by that section to qualify or limit the power of the legislature to confer upon cities the power to engage in such business, or any business properly within the scope of municipal purposes. Id.—Question Submitted to Voters—Form of Ballot—Single Purpose of Question—Certainty and Detail of Question.—The question, as printed on the ballot and used at the bond election, as follows: “Shall the city of Los Angeles incur a bonded debt of $3,500,000 for the purpose of acquiring and constructing a certain revenue producing municipal improvement, to wit, works for generating and distributing electricity for the purpose of supplying said city and its inhabitants with light, heat and power, including the acquisition of lands, water-rights, rights of way, machinery, apparatus and other property, and the construction of electric generating works, sub-stations, transmission and distributing lines, conduits and other works necessary therefor,” specifies but a single object of purpose, within the meaning of the requirements of the constitution (see. 18, art. XI), and of the Bond Act (Stats. 1907, p. 609), and does so with sufficient detail and certainty. Id.—Location of Proposed Works — Designation as within City Limits.—There is no provision of the Bond Act, or of the constitution, which requires that the question shall state the precise location of the works to be provided out of the fund voted, or that they should be within the city limits. Id.—“Acquiring and Constructing” Improvement :—Singularity of Purpose.—The expression, “acquiring and constructing a certain revenue producing municipal improvement,” particularly described, is not necessarily a statement of a dual purpose, and does not indicate the purpose of acquiring two systems, one by purchase and the other by construction. In connection with the context, it means the acquisition of but one system, including the purchase of such property and the erection of such structures as may be necessary to accomplish that purpose. Id.—Time of Payment of Bonds—Date to be Fixed by City Council. —The proposition submitted to the voters need not state when the bonds shall become payable.. Section 5 of the Bond Act provides that the city council shall determine that question, and contemplates that it may be done either before or after the vote of the people is taken on the issuance of the bonds, and without action thereon by the people. Id.—Estimate of Cost of Improvement—Statement of in Resolution and Ordinance.—A declaration in the original resolution of intention to establish the improvement and in the ordinance calling the election, that the estimated cost of the proposed improvement was three million five hundred thousand dollars, is a sufficient compliance with section 2 of the Bond Act, requiring that such ordinance shall recite “the estimated cost of the proposed public improvements.” It will be presumed from such recital that the city council had previously made the estimate stated. Id.—Printing Title of Ordinance in Black-Face Type.—Where the ordinance calling the election, as published, was preceded by its title, which clearly described its purport, the fact that such title was not printed in black-face type, as directed by section 4459 of the Political Code, is too unimportant to warrant a holding that the proceedings were thereby vitiated. Id.—Irregularities in Municipal Bonds Validated by Act op 1911. —The act of March 21, 1911, validated all bond issues irregularly authorized by any municipality if they had at the election called for that purpose received a two-thirds vote of the electors voting thereon. Id.—Amount op Municipal Indebtedness — Merely Voting Bonds Does Not Create or Increase Debt.—The vote of the electors upon a proposition to issue bonds for municipal improvements does not ipso faoto create a debt against the city fo the amount authorized. The indebtedness of the city is not thereby increased. The increase occurs when the bonds are issued and become valid obligations in the hands of the holders—that is, when they are sold and delivered to the purchaser. Id.—Extension op Limit op Indebtedness after Bonds Are Voted and before Issuance—Validity op Issue,—If, at the time the bonds of a municipality are issued and become lawful debts, they do not raise the indebtedness above the legal limit, as then established, they will not be deemed void because of the fact that' at the time the vote authorizing them was taken the amount voted would have exceeded the then existing limit. Id.—Amendment op Charter—Judicial Notice.—The amendment of March 6, 1911, to the charter of the city of Los Angeles, which was approved by the legislature on March 20, 1911, has the effect of a law and is a matter of judicial knowledge.
160 Cal. 48Peters v. Southern Pacific Co. (1911)
L. G. Harrier, Judge presiding at trial. A. J. Buckles, Judge presiding on motion for new trial. The facts are stated in the opinion of the court.
160 Cal. 72Brenner v. City of Los Angeles (1911)
Taxation—Assessment of Beal Property—Deduction of Value of Mortgage—Presumption of Performance of Official Duty.—In the absence of any request for a statement of Ms taxable property, a mortgagor of real property has the right to assume that the assessor, in assessing the mortgaged property for purposes of taxation, had properly performed Ms official duty and had deducted the value of the recorded mortgage from the assessed valuation of the property. Id..—Taxes Paid under Protest—Property not Liable to Assessment—Failure to Demand Correction of Assessment.—Money paid under protest for taxes on property not liable to assessment may be recovered, notwithstanding no application is made for correction of the assessor’s error before the period of equalization fixed by law has passed. (Henne v. County of Los Angeles, 129 Cal. 297, overruled.) Id.—Action May be Maintained after Expiration of Period for Equalization.—The remedy provided by section 3819 of the Political Code, of suing to recover void taxes paid under protest, is not limited, in its application, either by its language or by other statutes, to eases in which the taxpayer wishing to avail himself of it has vainly applied for relief before the assessor has closed his books and before the board of equalization has adjourned. Id.—Failure to Deduct Mortgage to Begents of University—City Taxes of Los Angeles—Payment of Excess under Protest.—In the absence of any request for a statement of his taxable property, a mortgagor of real property, which is subject to a recorded mortgage held by the regents of the University of California, and which is assessed against him for city taxes of the city of Los Angeles at its full value, without any deduction on account of the mortgage, is entitled, under section 63 of the ordinance of the city of Los Angeles, providing for the assessment and collection of city taxes, to recover the excess taxes levied on the value of the mortgage which had been paid by him under protest, upon presenting a verified claim therefor to the city council within six months after the payment. Such excess taxes are taxes “erroneously or illegally collected,” within the meaning of such section of the ordinance.
160 Cal. 80People v. Figueroa (1911)
APPEAL from a judgment of the Superior Court -of Los Angeles County and from an order refusing a new trial. Frank R. Willis, Judge. The facts are stated in the opinoin of the court.
160 Cal. 82Gassner v. McCarthy (1911)
Municipal Corporation—Limitation on Powers of.—A municipal corporation can exercise only such powers as have been conferred upon it by its charter or by some general law. Id.—San Francisco — Construction of Tunnel — Assessment District.,—The city and county of San Francisco, although it has power, under section 1 of chapter II of article II of its charter, to construct tunnels, has no power to select any limited area of property within its limits, and impose the cost of the construction of the proposed work upon the owners of such property. Id.—Cost of Tunnel How to be Paid.—In the absence of a grant of power to assess the cost of an authorized work upon a special assessment district, the expense of the work must be borne by the municipality as a whole, either out of current revenues or by means of a bond issue. Id.—Change of Grade—Mon-Contiguous Blocks—Tunnel under Intervening Blocks—Assessment for Cost of Work.—Chapter VI of article VI of the charter of that city and county, as amended November 23, 1907 (Stats. Sp. Sess. 1907, p. 41), does not authorize a change of the established grade of two non-contiguous blocks of a specified accepted street, the construction of a tunnel under the intervening blocks, the established grade of which remained unchanged, and the assessment of the cost of the work upon a limited assessment district assumed to be benefited thereby. Such a work is not an exercise of the power to “regrade, repave, sewer, sidewalk, curb or otherwise improve the same so as to conform to such change or modified grade,” within the meaning of section 1 of that chapter. Id.—Assessment District for Cost of Tunnel..—Such chapter does not authorize the creation of an assessment district to bear the cost of constructing the tunnel in or under the portion of the street which remains at its old grade. Id.—Cost of Work on Accepted Streets.—Assessment to Property-Owners.—The street upon which such work was proposed to be done being an accepted street, the city and county, under sections 8 and 23 of chapter II of its charter, could not impose the cost of improving it in any way authorized by that chapter, to private property-owners, either according to frontage, or by the special assessment district plan.
160 Cal. 90Miller v. Lane (1911)
APPEAL from a judgment of the Superior Court of Los Angeles County. George H. Hutton, Judge. The facts are stated in the opinion of the court.
160 Cal. 95Sunrise Land Co. v. Root (1911)
APPEAL from a judgment of the Superior Court of Stanislaus County. L. W. Fulkerth, Judge. The facts are stated in the opinion of the court.
160 Cal. 98Breitenbucher v. Oppenheim (1911)
Resulting Trust—Action to Establish—Pleading Parol Contract Similar to Legal Implication.—An action to establish a resulting trust in land arising from a part payment of the consideration is not changed into an action to establish an express trust therein, merely by the averment of a verbal agreement respecting the purchase of. the land which, in the absence of any contract, the law would imply. Id.—Evidence of Parol Agreement Admissible.—In such action evidence is admissible of such verbal agreement for the purpose of showing the entire transaction out of which the resulting trust is claimed to have arisen. Id.—Payment of Consideration «.for PurohA.se of Land.—In order that a trust may result in favor of one contributing to the consideration for a transfer of land, the title to which is taken in the name of another, it is not necessary that the consideration should have been paid by him. It is enough if it was paid for him. Id.—Finding of Resulting Trust—Evidence—Inconsistent Acts of Plaintiff.—Where the evidence, although contradictory, is sufficient to sustain the finding of the trial court establishing a resulting trust, the appellate court will not interfere therewith, merely because certain isolated acts of the plaintiff, when considered by themselves, seem inconsistent with that theory. Id.—Interest Proportionate to Consideration Paid.—Where there is no uncertainty regarding the amount of money contributed by one person towards the purchase price of land, the title to which is conveyed to another, and its proportion to the entire purchase price, a trust results in the land for the person who has contributed to the purchase price proportionate to the amount so paid by him. Id.—Non-joinder op Parties—Appeal.—A question of non-joinder of parties, which was not raised by demurrer or otherwise in the trial court, cannot be raised for the first time on appeal. Id.—Notes and Deed op Trust por Part op Purchase Price—Judgment Determining Interest op Parties.—The fact that the parties in whose name a transfer of land was taken, gave their individual notes secured by a deed of trust of the land as part payment of their share of the purchase price, will not warrant the reversal of a judgment establishing a resulting trust in the land, in which the interest of the parties was adjudged to be in proportion to the amount contributed by each, either in money or in notes, and leaving unaffected any lien that the trustee, who was not made a party to the action, might have on account of the balance of the purchase price.
160 Cal. 106Western Union Telegraph Co. v. Hopkins (1911)
APPEAL from a judgment of the Superior Court of Los Angeles County. George H. Hutton, Judge. The facts are stated in the opinion of the court.
160 Cal. 124Western Union Telegraph Co. v. County of Los Angeles (1911)
APPEAL from a judgment of the Superior Court of Los Angeles County. George H. Hutton, Judge. The facts are stated in the opinion of the court.
160 Cal. 129Postal Telegraph Cable Co. v. County of Los Angeles (1911)
APPEAL from a judgment of the Superior- Court of Los Angeles County. Frederick W. Houser, Judge. The facts are stated in the opinion of the court.
160 Cal. 131Van Ness v. Rooney (1911)
Public Lands—Policy of United States Eespecting Mineral Lands —Reservation from Ordinary Sale.—Prom its inception, it has been the policy of the United States government to retain the mineral lands of the United States for mining purposes, and not to allow title to them to pass to pre-emptors, homesteaders, timber applicants, grantees under wagon road or railroad grants, or in any case save where patents were secured in pursuance of the provisions permitting the purchase directly of mineral lands. Id.—Locator Need hot Apply fob Patent—Mineral Claims are Property—Eight of Exclusive Possession..—No provision has ever been enacted in the mining laws of the United States compelling a locator of a mining claim to patent his claim. Such claims on public land are property in the fullest sense of the word, and a valid location thereof, made and kept up in accordance with the statute, has the effect of a grant by the United States of the right of present and exclusive possession of the lands located. Id.—Eailroad Grant—Location of Mineral Land Prior to Patent.— Mineral lands situated within the limits of railroad grants are subject to location up to the time of the issuance of the patent. Id.—Action to Annul Patent to Eailroad—Quieting Title to Mineral Land Excepted from Patent.—The act of Congress of March 2, 1896, prohibiting the bringing of actions by the United States to annul patents theretofore erroneously issued under railroad and wagon-road grants, after five years from the time of the passage of that act, does not debar one who has made a valid location of mineral land within the limits of a railroad grant, prior to the issuance of a patent therefor, which on its face expressly excluded and excepted from the lands granted all mineral lands found to be in the tracts described in the granting clause of the patent, from maintaining an action to quiet his title to his mineral claim after the expiration of such time. Such action is not one to annul or avoid a patent issued by the government of the United States, and the relief sought, if granted, would not invalidate such patent, but would merely, by interpreting the instrument, determine whether the mining claim was included in the reserving clause of the patent. Id.—Effect of Exception of Mineral Land in Patent to Eailroad.— A patent for land included in a railroad grant, which expressly excludes and excepts from the lands described in the granting clause “all mineral lands should any such be found in the tracts aforesaid,” does not pass title to a mineral claim included therein, which had been duly and legally located prior to the issuance of the patent. Id..—Determination of Character of Land—Duty of Land Department—Effect of Patent—Lands Known to be Mineral.—The determination of the question whether public lands are mineral, and thus reserved under the provisions of the general law from sale, or agricultural or other lands of which it may make disposition, being given to the land department, the general rule is, that the issuance of a patent is a conclusive determination that the land is agricultural or such other character as might be disposed of under the general law providing for the disposition of public lands and not mineral land reserved from sale, and the effect of the issuance of a patent to the land as agricultural is to transfer to the patentee all mineral deposits which may be subsequently discovered within its boundaries but which were not known to exist at the time the patent was issued. The rule, however, is equally well established that mineral deposits known to exist in the land at the time the patent was issued do not pass under it. Id.—Quieting Title—Locator May Maintain Action.—One in possession of a mining claim situated within the limits of a railroad grant, under a valid location made prior to the issuance of a patent to the railroad, is in privity with the United States, and although he holds a mere equitable title, may have the same quieted against a grantee of the railroad, asserting title under such patent.
160 Cal. 143Davis v. Hearst (1911)
Civil Libel—Malice—Compensatory Damages.—Under the law of civil libel, as defined in section 45 of the Civil Code, malice forms no ingredient of the offense, and a recovery of full compensatory damages may be had in every case, even where it is not pleaded or proved, and where an absence of malice is positively established. Id.—Criminal Law—Malice Necessary Ingredient—Presumption.— In the criminal law malice is made a necessary ingredient of the offense of libel, as defined in section 248 of the Penal Code, though to make prima faeie proof of it it is only necessary for it to appear that an injurious publication has been made without justifiable motive. Thereupon the law raises a presumption of the malice sufficient to support the criminal charge. Id.—Libel as Besult of Inadvertence.—If a civil libel results from mere inadvertence, from a proof reader’s or compositor’s error or from any clerical misprision, the liability upon the publisher is just as great and no greater for compensatory damages than the liability that would be cast upon him if the same publication were most evilly and malignantly designed. Id.—Malice Defined — Malice in Pact — Evidence to Establish.— Malice as universally understood by the popular mind has its foundation in ill-will and is evidenced by an attempt wrongfully to vex, injure, or annoy another. This malice may be designated malice in fact, and is the malice described in subdivision 4 of section 7 of the Penal Code, where it is said: “The words ‘malice’ and ‘maliciously’ impart a wish to vex, annoy, or injure another person.” This malice may be established either by direct proof of the state of mind of the person or by indirect evidence so satisfying to the jury that they may from it infer and find the existence of this malice in fact. Id.—Malice in Law—Presumption.—There is still another malice, the presumption of the existence of which is raised by the law in certain eases upon certain proof. This is the malice described in the same section of the Penal Code, when it further declares that “malice” is shown by “an intent to do a wrongful act, established either by proof or presumption of law.” This malice may exist with malice in fact, or it may exist quite independently of it. In some instances this latter malice—malice in law—is conclusively presumed against the defendant. In other instances the presumption is disputable. Id.—Express or Implied Malice Defined—Evidence—Punitive Damages.—Under section 3294 of the Civil Code, providing for the award of punitive damages in any action sounding in tort “where the defendant has been guilty of oppression, fraud, or malice, express or implied,” the malice, and the only malice, there contemplated is malice in fact, and the phrase “express or implied” has reference only to the evidence by which that malice is established; express malice thus meaning that the malice is established by express or direct evidence going to prove the actual existence of the hatred and ill-will; implied malice referring to the indirect evidence from which the jury may infer the existence of this malice in fact. Id.—Malice in Pact Essential to Award of Exemplary Damages— Evidence to Prove.—While such malice in fact is essential to an award of exemplary damages, it may be proved directly or indirectly, .—that is to say, by direct evidence of the evil motive and intent, or by legitimate inferences to be drawn from other facts and circumstances in evidence. Id.—Privileged Publications.—Where the Civil Code, in section 47, speaks of privileged publications and, in section 48, declares that malice is not inferred from the publication of such matters, it has reference to this malice in fact. Id.—Evil Motive—Fraud or Oppression.-—In all cases in which exemplary damages are sanctioned, there must be made to appear to the satisfaction of the jury the evil motive, the animus malus, shown by malice in fact or by its allied malignant traits and characteristics evidenced by fraud or oppression. Id.—Liability of Principal for Punitive Damages for Acts of Agent. ■—A principal cannot be held in punitive damages for the act of his agent unless the particular act comes within the principal’s specific directions or general suggestions or unless the principal has subsequently ratified it, such ratification presupposing original authorization. Id.—Liability of Newspaper Proprietor — General Instructions.— Under general suggestions would come that class of cases where the policy and-conduct of a newspaper show that its proprietor has given his subordinates carte blanche to do anything and everything that will make the paper a financial success and demonstrate its superior enterprise as a news disseminator. Id.—Burden of Proof of Malice in Fact—Question for Jury.—Since malice in fact goes to the state of mind and evil motive of the defendant, the burden of proving the existence of that state of mind is in every ease upon the plaintiff who seeks an award of punitive damages based upon its existence. The fact is to be determined by the jury, though there is always the reserved power and duty in the court, in a proper case, to instruct the jury that there is such an absence of evidence of the malice in fact as to forbid an award in punitive damages. Id.—Evidence of Malice in Fact.—In proof of malice in fact, the evidence may be direct (or express, as the code names it), going to declarations, acts, and conduct of the defendant, showing personal ill-will towards the plaintiff, but it will more usually be indirect or inferred (the implied malice in fact of the code definition), and to this end of proving the malice inferentially all legitimate evidence is admissible bearing upon the general course of conduct of the defendant toward the plaintiff, the internal evidence furnished by the character of the libel, and any other specific facts and circumstances not in direct proof of the malice, but from which the existence may be logically inferred, herein including the circumstance, if it be found to exist, of wanton recklessness and heedlessness of plaintiff’s rights. When such malice is found to exist, an award based upon it should bear relation to its gravity. Id.—Malice in Fact Not Presumed.—Malice in fact does not arise as a legal presumption from the mere falsity and libelous character of the publication. It may be inferred from the intrinsic evidence of malice which the publication affords; but whether it does or not is for the jury to say. Id.—Presumptions as to Unlawful Acts.—The presumptions that an unlawful act was done with an unlawful intent, and that a person intends the ordinary consequences of his voluntary act, are, in libel, presumptions going to malice in law and not to malice in fact. Id.-—Presumption of Malicious Intent.—The only presumption touching malice in fact is that announced in section 1962 of the Code of Civil Procedure, which declares as a conclusive presumption “the existence of a malicious and guilty intent, from the deliberate commission of an unlawful act, for the purpose of injuring another.” Before this presumption arises, the jury must find as facts: (1) the commission of an unlawful act; (2) that its commission was deliberate, and (3) that it was committed with the deliberate purpose of injuring another. Id.—Absence of Newspaper Proprietor—Liability for Punitive Damages—Series of Libelous Publications.—The mere fact that the proprietor of a newspaper was absent from the scene -of the libelous publication at the time of the publication, did not actually participate therein, and had no knowledge of any of the acts complained of, is not sufficient of itself to preclude the award of punitive damages against him. The existence of malice in fact could be inferred from the fact that a series of libelous articles had been published in the newspaper reflecting upon the plaintiff’s official and personal character and conduct, and that the proprietor had affirmed the truth of the charges by justification in his answer. Id.—Joint Tort Peasors.—Apportionment of Compensatory Damages. —In an action for compensatory damages against joint tort feasors, under section 3333 of the Civil Code, an apportionment of the damages is not permitted, since the law will not attempt to measure the degree of culpability of the joint tort feasors. The same rule obtains in an action for malicious prosecution where the existence of malice in fact must be found against every tort feasor before any judgment can be rendered against him. Id.—Apportionment of Punitive Damages.—There is nothing in the law of this state to prevent an award of compensatory damages against all joint tort feasors who are found culpable, and to add a specific sum or sums by way of punitive damages, against such of the tort feasors as the jury shall find to have been actuated by malice in fact. Id.—Instruction—Absence of Newspaper Proprietor—Measure of Damages.—-In an action for libel an instruction that the “proprietor of a newspaper in which a libel is published though he has no knowledge of the publication at the time, is as responsible for it as ■he would have been had it been done by him personally or under his direct supervision, and it is no defense to a libel that it was published in the absence of the proprietor by an employee, however competent said employee may be,” although unobjectionable as the rule governing the award of compensatory damages, is misleading if given as the rule of law governing the award of punitive damages. Id..—Erroneous Instructions as to Express and Implied Malice.— In such action instructions which in effect define express malice to be malice in fact, and implied malice to be malice in law, and declare that exemplary damages could be awarded by the jury upon a finding of either malice in fact or malice in law, are erroneous. Id,—Negligence Not Evidence of Malice in Fact.—Mere negligence or carelessness can never be evidence of malice in fact, so as to justify an award of punitive damages in an action for libel. Id.—Punitive Damages Not Matter of Bight.—Even after establishing a case where punitive damages are permissible, a plaintiff is never entitled, as matter of right, to recover them, and an instruction that he is so entitled is erroneous. The granting or withholding of such damages is wholly in the discretion of the jury. Id.—Circumstances in Mitigation.—Circumstances in mitigation are allowed to be pleaded and proved in an action for libel usually to overcome evidence of malice in fact. They ordinarily have no other place or purpose, the exception being the use of evidence in mitigation to rebut evidence of special damages and evidence of bad reputation to lessen the award in compensatory damages. Id.—Instructions as to Presumption of Malice in Fact—Inference of Fact.—Malice in fact in an action for libel is never presumed, but is always to be proved, and an instruction which is predicated on the contrary is erroneous. The law merely declares that by proof of the unprivileged character of a publication, libelous per se, the jury may infer the existence of such malice. This inference is always an inference to be drawn by the jury, and is not a presumption which the law has made or which the court can make for the control of a jury. Id.—Bepublication of Libel in Answer—Evidence of Malice in Fact —Instruction.—The fact that the defendant in his answer republishes the libelous charge, and at the trial failed to prove its truth, and did not in good faith expect to do so, can be considered by the jury only as evidence of the existence of malice in fact to support an award of punitive damages. An instruction, however, is not to be deemed misleading merely because it stated that by such conduct the defendant “intensifies the original wrong.” Id.—Impeaching Beputation of Plaintiff—Evidence of Bumors Inadmissible.—In an action for libel the defendant may impeach the reputation of plaintiff generally or as to the particular qualities embraced in the libel for the purpose of reducing compensatory damages, but he may not do this by showing either rumors of general ill-repute or rumors of ill-repute as to the particular matter charged in the libel. Nor can the existence of the rumor be shown to negative malice, even if the statement in the libel be predicated upon the existence of such rumor. Id.—Person Referred to in Libel—Understanding of Readers—Intent of Defendant.—Where a libelous newspaper article is ambiguous as to the person to whom it was meant to apply, it is for the jury to determine, and they may be instructed to so determine, whether the article would be understood by the readers of the newspaper as referring to the plaintiff. Testimony of outside readers on this point is not required, the jurymen themselves becoming the readers. If the article would be so understood, the defendant is liable irrespective of his intent. Id.—Good Reputation of Plaintiff—Evidence of Inadmissible Prior to Attack.—In an action for libel, affirmative evidence of the plaintiff’s reputation in advance of any attack upon it by the defendant is inadmissible. In the absence of such an attack, the defendant is entitled to have the case of the plaintiff rested upon the presumption of good reputation which the law accords. Id.—Affirmative Evidence of Falsity of Libel.—While the falsity of defamatory matter will be presumed, still it is competent for the plaintiff, if he so desires, to offer affirmative evidence showing that falsity. Id.—Libel of City Official—Evidence of Investigation by Mayor.— Where the libelous article -stated that the mayor of a municipality had investigated the charges made by the newspaper against the plaintiff as a city official and had found them to be true, the evidence of the mayor is admissible, not on the question of the truth or falsity of the charges themselves, but upon the question whether he did find the exposures to be true and did so report. Id.—Headlines of Libel.—The captions and headlines of a libelous newspaper article are themselves a part of the libel. Id..—Pleading Justification and Mitigation—Evidence.—Under section 461 of the Code of Civil Procedure, if a defendant pleads justification, he may at the same time plead with Ms affirmance of good faith and honest belief all facts and circumstances within his knowledge at the time of the publication which support that knowledge and belief, even if they tend to establish the truth of the charge. If he desires to plead justification, and also the truth or partial truth in mitigation, he must plead these facts and circumstances in mitigation, in which event they will be considered. Even if the justification fails, these matters will be considered by the jury upon the question of malice. Id.—Evidence Tending to Prove Truth of Charge.—Under that • section, evidence tending to prove the truth of the charge may be proved, but must be pleaded. All other circumstances in mitigation may be so proved without pleading them. Id.—Truth Given in Mitigation—Knowledge of Defendant.—There is this broad distinction between a plea in justification and evidence of the truth given in mitigation: the truth whenever discovered is a complete defense, but to repel the conception of malice in the publication, only so much of the truth as the defendant knew at the time of the publication can avail him. Id.—Instructions—Qualified Privilege.—In an action for libel, the court should not give an argumentative instruction on the question of qualified privilege as a defense, when no such question of privilege is involved in the case.
160 Cal. 197Bannerman v. Boyle (1911)
APPLICATION for a Writ of Mandamus directed to the Auditor of the City and County of San Francisco. The facts are stated in the opinion of the court.
160 Cal. 209Bobrick Chemical Co. v. Prest-O-Lite Co. (1911)
Sale—Articles Manufactured for Particular Purpose—Warranty of Fitness.—Under section 1770 of the Civil Code, one who manufactures an article under an order for a particular purpose warrants by the sale that it is reasonably fit for that purpose. Id.—Breach of Warranty of Fitness—Vendee May Refuse to Perform Prior to Delivery by Vendor.—Under an agreement for the purchase during a term of years of a specified number of machines for the inflation of tires to be manufactured by the vendor, and which were designed to accomplish a particular purpose, the parties contract upon, the theory that the articles so constructed would be reasonably fit to accomplish that purpose; and if it becomes apparent, after the vendee has accepted and paid for a portion of the machines, that they cannot accomplish such purpose by reason of some inherent defect in the plan or device according to which they are to be made, the vendee may refuse in advance to go on with the contract, instead of waiting until the vendor has manufactured and offered for delivery the machines still to bo furnished and then refusing to accept the same.
160 Cal. 217People v. Byrne (1911)
Criminal Law—Judgment of Conviction—Refusal of New Trial— Newly Discovered Evidence—Discretion.—After judgment of conviction in a prosecution for murder, an order refusing to grant a motion for a new trial on the ground of newly discovered evidence is conclusive on the appellate court, in the absence of a clear showing of abuse of discretion. In the present ease, after a review of the evidence, it is held that no such abuse of discretion appears. Id.—Due Diligence to Produce Evidence at Trial.—A party relying upon newly discovered evidence as a ground for a new trial must have- made reasonable effort to produce all his evidence at the trial, and will not be allowed a new trial for the purpose of introducing evidence known to him and obtainable at the time of the trial, or which would have been known to him had ho simply exercised reasonable effort to present his defense. Id.—Weight of Evidence—-Truth and Materiality.,—When duo diligence on the part of defendant to produce at the trial all evidence in his favor has been shown, the trial judge is still called upon, in the exercise of a wise discretion, to determine the weight to be given to the evidence produced upon the motion for a new trial, the truth of the matters shown thereby, and the materiality and probability of the effect of them if believed to be true. Id.—Counter Affidavits Admissible on Motion.—Counter affidavits to rebut the showing made by defendant on such a motion, by discrediting the newly discovered witnesses, or by disputing the alleged facts testified to by the new witnesses, may be presented on the motion. Idi.-—Evidence—Accusatory Statements—Silence of Defendant—• Weight of Evidence.—Evidence of an- accusatory statement mado in the presence and hearing of the defendant, after he had boon taken into custody by the police, but before ho had been formally arrested for the crime for which he was afterwards tried, to which he remained silent, is admissible as tending to show a tacit admission on his part of the truth of the accusation, there being ovidonco sufficient, pri/nia facie, to support a conclusion on the part of tho trial court that defendant understood the meaning and bearing of the accusation, that it was one that might under all the circumstances naturally call for some action or reply on Iris part, and that the occasion and circumstances were such as to afford him an opportunity for reply. The weight of such evidence in that behalf is solely for the jury. Id..—Evidence Tending to Show an Admission—Question for Trial Court.—Whether the circumstances are such as to make the failure to reply proper evidence tending to show an admission is, in the first instance, a question for the trial court. Id.—Defendant may Explain Silence—Recent Denial of Similar Accusation.—A defendant against whom evidence of a failure to deny an accusation has been introduced is entitled to show as a circumstance tending to explain his silence and rebut any possible prejudicial effect thereof, that he had within a few minutes previous thereto denied a similar accusation to the same police officers. Id.—Weapon used in Killing.—A pistol sufficiently identified as the ■ one with which the. murder was committed is properly admitted in evidence. „
160 Cal. 237Zibbell v. Southern Pacific Co. (1911)
APPEAL from a judgment of the Superior Court of Fresno County and from an order refusing a new trial. George E. Church, Judge. .The facts are stated in the opinion of the court.
160 Cal. 257Firth v. Marovich (1911)
Deed—Building Restrictions—Minimum Value of Building to be Erected.—A restriction in a deed, prohibiting the erection of any buildings on the land conveyed except a private residence of a specified minimum value is valid and enforceable at the suit of the grantor, so long as he continues to own any part of the tract for the benefit of which the restrictions were exacted. Id.—Condition Subsequent—Forfeiture of Estate—Repugnancy to Granting Clause—Restraint on Alienation.—A condition subsequent in a deed, forfeiting the title to the grantor in case of a breach of such a restriction, is not repugnant to the granting clause, nor does it come within the terms of the code sections prohibiting or limiting restraints on alienation. Id.-—Restriction Construed as Condition not as Covenant.—A provision in a deed that the conveyance was made and the real property sold subject to the conditions “that no building whatever except a private residence with the customary outbuildings, including a private stable, shall be erected, placed, or permitted on said premises or any part thereof, and that such building shall be used as a private residence only,” and shall cost a specified minimum sum, and shall be located not less than twenty feet from the front line of the lot, and that no barn or shed, or other building shall be built or located closer than ninety feet from the front line of the lot, and that any breach of such conditions, occurring after the delivery of the deed, should have the effect of forfeiting the title of the grantee and of his assigns, and the title should thereupon -revert to the grantor, should be construed as a condition subsequent and not as a mere personal covenant. Id.—Building to be Used as Residence—Outbuildings.—The provision that “such building shall be used as a private residence only,” refers to the main building, and not to the stable or other outhouses; and the further clause that “no barn or shed or other building shall be built or located closer than ninety feet from the front line,” does not permit the erection of any building, within such limits, irrespective of its cost or the use for which it was intended. The effect of the latter clause is to require outbuildings to be set back ninety feet from the street line, while the main residence building may be built at a distance of twenty feet. Id.—Outbuilding Defined.—An “outbuilding” or “outhouse,” is a building adjoining or belonging to a dwelling-house, to be used in subserviency thereto.
160 Cal. 263Union Trust and Realty Co. v. Best (1911)
APPEAL from a judgment of the Superior Court of Los Angeles County and from an order refusing a new trial. George H. Hutton, Judge. The facts are stated in the opinion of the court.
160 Cal. 268Burr v. MacLay Rancho Water Co. (1911)
APPEAL from a judgment of the Superior Court of Los Angeles County. M. T. Allen, Judge. The facts are stated in the opinion of the court and in the opinion reported in 154 Cal. 428.
160 Cal. 283Boggs v. Dunn (1911)
APPEAL from an order of the Superior Court of Shasta County quashing an execution and staying the execution of a judgment. J. E. Barber, Judge. The facts are stated in the opinion of the court.
160 Cal. 288Wilcox v. Engebretsen (1911)
Streets—Change of Grade—Time for Filing Objections—Last Day FALLING ON SUNDAY:—TIME EXTENDED TO MONDAY.—Where the last day of the thirty-day period allowed by section 38 of the act of March 9, 1893, (Stats. 1893, p. 89), in which to file objections to a proposed change of grade of a public street in a municipality, falls on a Sunday, the time to file such objections is extended to and including the following Monday. Id.—Petition by Property-owners—Condition Precedent to Action by City Council..—Where a statute requires the filing of a petition by the owners of a majority of the property affected by a change of grade of a city street, as a condition precedent to the making of an order therefor, the city board of trustees or council has no power to make the order until a sufficient petition has been filed. Id.—Necessity of Petition — Sufficiency of Petition — Statutory Provisions Affecting.—As the necessity for such petition is the creature of statute, and is not required by any constitutional guaranty, the statute may dispense with such requirement, or it may provide that the decision of the board or council as to its sufficiency, or any subsequent act depending upon it, such as the issuance of bonds, shall be conclusive evidence of the fact that a sufficient petition has been filed. Id.—Proceedings Affecting Private Property—Exercise of Delegated Legislative Authority—Collateral Attack on Petition.— A distinction is to be made between the proceedings of a board or council acting in pursuance' of some delegated legislative authority in creating or extending a political subdivision of the state, as a county or a city, a proceeding which does not directly affect private property, and proceedings to open, grade, regrade, or improve a street, which do directly change or affect private property. In the former class of eases, the fact that such body acts upon a petition which does not appear bad upon its face, and proceeds thereon according to law, is usually held to be conclusive of the sufficiency of the petition against any collateral attack. In the latter class of cases, the rule does not apply. Id.—Abutting Owner may Collaterally Attack Petition — Signatures by Less than a Majority of Owners of Property.— There is nothing in the act of 1891 (Stats. 1891, p. 116), as amended by the act of March 9, 1893, that could be applied to a change of street grade and which would operate to make the order changing such grade conclusive of the sufficiency of the petition therefor, and consequently, an abutting property-owner, in an action by him to enjoin the carrying into effect of such order, may attack the sufficiency of the petition, and show that it was not signed by owners of a majority of the property affected by the proposed change of grade. Id.—Damages Sustained by Change of Grade—Eight to Have Damages Fixed by Jury—Constitutional Law.—The statute recognizes the right of the abutting property-owner, under section 14 of article I of the constitution, to refuse the award made by the city council for the damages sustained by him by reason of the change of grade, and to insist upon submitting the question of his damage to a jury, and expressly provides that he may do so. He cannot be deprived of this constitutional guaranty by the decision of the council that he is not damaged. Id.—Condemnation Suit where no Damages are Awarded by Council. —The fact that the statute makes no provision for a condemnation suit, except where damages are awarded to the owner and he is unwilling to accept the amount allowed, does not deprive him of the right to a jury trial in cases where no damages have been awarded him. in. the proceedings. Under the constitution, the ascertainment and payment of such damages in the mode there prescribed, is a condition precedent to the right of the city to do the public work which will cause the damage. Id.—Injunction by Property-owner Prior to Ascertainment of Damages.—The property-owner has the right to enjoin such work until his damages have been lawfully ascertained and paid in the manner prescribed by the constitution. Id.—Pleading—Allegation op Damage.—The complaint in such an action sufficiently alleges that the plaintiff’s property would be damaged by the proposed change of grade, although the amount thereof in money is not stated, where it appears therefrom that the elevation of the street with respect to his property will be seven feet lower at one end and live feet higher at the other end than it would be if the street conformed to the previously established grade, and that-in consequence thereof his ingress and egress to and from the lot will be impeded.
160 Cal. 300Matter of Petition of Burke (1911)
Criminal Law—Selling Liquor near University Grounds—Constitutional Law—Special Legislation—Uniform Operation.—Section 172a of the Benal Code, providing that “every person who, upon or within one and one-half miles of the university grounds or campus, upon which are located the principal administrative offices of any university having an enrollment of more than one thousand students, more than five hundred of whom reside or lodge upon such university grounds or campus, sells, gives away, or exposes for sale, any vinous or alcoholic liquors, is guilty of a misdemeanor,” is constitutional. That section is not violative either of the fourteenth amendment of the constitution of the United States, or of section 2 of article I of the state constitution, providing that all laws of a general nature shall have a uniform operation; or subdivision 33, section 25, of article IV, of the same constitution, providing that the legislature shall not pass local or special laws where a general law can be made applicable. Id.—Case to which General Law is Inapplicable—Special Law Appropriate.—Conceding that the section is a special law, solely designed to prohibit the sale of liquor within a mile and a half of the ■ Leland Stanford, Jr., University, it would not follow that it must be condemned for that reason; for, if the case be one to which a general law cannot be made applicable, the constitutional limitation upon the power of the legislature is at an end, and the legislature may properly pass a special law to meet such a case. Id.—General Law Applicable to Single Class.—A legislative enactment does not infringe the constitutional inhibition against passing special legislation in those eases where general laws may be made applicable, merely because the class to which it applies consists of but one unit, individual, or entity. Id.—Classification of Educational Institutions Based on Numbers. —Section 172a of the Penal Code is penal, and passed in the exercise of the police power, with the apparent design to protect students in the formative periods of their lives from the temptations of alcoholic drink. To accomplish such purpose, the legislature has the constitutional power to make a classification of educational institutions based on numbers, as provided in such section. Id.—Judicial Review of Classification.—Where the discretion to so classify is vested in the legislature, the selection of a limit is a legislative power which will be judicially reviewed only in a plain case of abuse. Id.—Principal Administrative Offices of University Defined.—The act is not rendered invalid because its operation is limited to that class of educational institutions which in addition to enrollment and residence of the specified number of students, has its “principal administrative offices” located upon the grounds or campus. The phrase “principal administrative offices,” as used in the act, means the principal place of business of the university as a university, where the principal educational functions of the university are carried out.
160 Cal. 306Clark v. Beyrle (1911)
APPEAL from a judgment of the Superior Court of Santa Barbara County. S. E. Crow, Judge. The facts are stated in the opinion of the court.
160 Cal. 317Clark v. City of Los Angeles (1911)
Municipal Corporations—Bonded Indebtedness — Election — Statement of Proposition on Ballot.—A statement on the ballot of the proposition submitted to the voters at an election held for the purpose of authorizing the incurrence of a bonded indebtedness by a munici- ' pality must necessarily be brief and in general terms. The amount of the indebtedness must he stated and the general purpose with sufficient certainty to inform the voters, and not mislead them as to the object intended; but the details of the proposed work or improvement need not be given at length. Id.—Distinct Propositions Must be Separately Stated—Amount of Indebtedness.—On such an election there must he a separate proposition on the ballot for each distinct, unrelated, and independent object or purpose for which it is proposed to incur indebtedness, and showing separately the amount desired for each one, in order that the voter may express his choice on each without thereby affecting the other. The fact that the resolution or ordinance describes harbor improvements in two parts, those upon one side of a certain line to cost two million dollars, and those upon the other side to cost one million dollars, does not make the parts independent nor preclude their submission together as one proposition for the total sum. Id.—Harbor Improvement—Sufficiency of Statement of Proposition:—City of Los Angeles.—Where the resolution of intention and the ordinance calling the election described in detail a proposed municipal harbor improvement, a proposition stated on the ballot as follows: “Shall the city of Los Angeles incur a bonded debt of $3,000,000 for the purpose of acquiring and constructing certain municipal improvements in said city, to wit: the construction of docks, wharves and warehouses, the opening, improving, constructing and maintaining of streets and highways to navigable waters, the constructing and maintaining of canals and waterways, and the acquisition of the necessary lands for said improvement,” is sufficiently definite to inform the voters that the question presented included the objects and purposes set forth in the resolution and ordinance. Id.—Singularity of Proposition.—Such question contains but one proposition to be voted on, and hence is not inimical either to section 18 of article XI of the constitution or to the Bond Act (Stats. 1907, p.609). Id.—City of Los Angeles May Construct and Maintain Harbor Improvements.—The city of Los Angeles, under various provisions of its charter, has the power to acquire, construct, and maintain each of such contemplated harbor improvements.
160 Cal. 324Walti v. Gaba (1911)
Agreement por Sale op Clipped and Unclipped Wool—Entire Contract—Delivery.—The plaintiffs, who were the owners of a band of sheep located near Kings City, entered into a written contract which stated that they “have this day sold” to the defendants “all of our spring wool clip of 1906 at eighteen cent per pound, also the fall clip wool of 1905 at fourteen cent per pound. The fall wool, which is stored ... at San Francisco, the spring wool to be delivered at Kings City depot in consideration thereof we accepted a deposit of two hundred and fifty dollars part of payment of said sale, the balance to be paid on the delivery of wool.” At the time the contract was executed the spring wool was on the bodies of the sheep. Held, that the contract was not one of present sale, but constituted a mere agreement to sell and buy 5 that the contract was entire, and did not pass title to any of the wool to the purchasers, and that the latter were under no obligation to pay for any of the wool until the delivery to them of all of it. Id.—Words “Bought” and “Sold” do not Always Import Present Sale.—The use of the word “sold” or the word “bought” does not always import a present sale. Such words are frequently used where the parties in fact intend only an agreement to sell. Id.—Passing of Title—Precedent Acts to be Done by Vendor.— Where by the agreement the vendor is to do anything to the goods for the purpose of putting them into that state in which the purchaser is bound to accept them, or into a deliverable state, the performance of those things shall, in the absence of circumstances indicating a contrary intention, be taken to be a condition precedent to the vesting of property. Id.—Vendors to Care for and Shear Sheep—Weighing to Ascertain Price.—Under such contract, and the conditions existing at the time of its execution, it is clear that the parties intended that the owners of the sheep should care for them until the proper time for shearing the spring wool, should shear it and put it in a condition for delivery, transport it to Kings City, and there deliver it. Incident to this delivery, it would also be necessary to weigh it to ascertain the price to be paid. These circumstances are indications that the title did not pass.
160 Cal. 331Gjurich v. Fieg (1911)
Appeal—Alternative Method—Duty op Reporter to Make and File Transcript—Payment op Reporter’s Fees.—Where an appeal is taken under the alternative method provided by sections 953a and 953b of the Code of Civil Procedure, it is the duty of the stenographic reporter to make a transcript of the report of the trial within twenty days after the notice of appeal has been given and to file such transcript with the clerk. He cannot refuse to so file it because his fees remain unpaid. Id.—Appellant’s Undertaking—Reporter Mat Enforce for Fees.— The undertaking given by the appellant to the clerk is security until such time as the exact amount due to the reporter can be known, and this cannot be known until the final approval of the transcript by the judge. Thereupon the appellant becomes liable for the just fees of the reporter so determined, and upon his failure to pay them recourse may be had against him and the sureties on such undertaking. Id.—Dismissal of Appeal — Failure to File Transcript in Time— Mandamus against Reporter.—The failure to file the transcript within the time limited by law, owing to the reporter’s refusal to file it with the clerk because of the non-payment of his fees, will not warrant a dismissal of the appeal, notwithstanding the appellant neglected to enforce such filing within a reasonable time by a proceeding in mandamus against the reporter.
160 Cal. 334Matter of Ford (1911)
Criminal Law—Bight to Speedy Trial within Sixty Days—Dismissal op Prosecution—Absence op Good Cause por Delay.— Section 13 of article I of the state constitution guarantees to every person charged with crime the right to a speedy and public trial, and in order to prescribe with definiteness what should constitute a reasonable time under that mandate, section 1382 of the Penal Code 'enacts that unless good cause is shown to the contrary a prosecution must be dismissed against a defendant when an indictment or information has not been filed against him within thirty days after he was committed to answer, or he is not brought to trial within sixty days after the filing of the indictment or information against him and the trial had not been postponed on his application. Id.—Violation of Constitutional Guarantee.—The effect of that code provision is to imperatively fix the time as sixty days within which, under the constitutional guarantee, a defendant must be brought to trial, and to declare that the guarantee is violated and the defendant entitled to a dismissal of the indictment against him when he is not brought to trial within said sixty days after it is filed, unless good cause for not doing so is shown on the postponement of his trial beyond that period is made on his application. Id.—Duty of Court to Dismiss Indictment—Habeas Corpus—Defendant in Custody.—Where a defendant is not brought to trial within the statutory period, and no good cause is shown by the prosecution for a delay, it is the imperative duty of the superior court, on a motion of the defendant to that end, to order the indictment dismissed. The court is without discretion in the matter, and if it denies the motion and the defendant is retained in prison, he has a right to apply to the supreme court for a writ of habeas corpus to be discharged from custody thereunder, and when it appears upon the hearing that there was no good cause for delay of the trial beyond the sixty days provided in the statute, his discharge will be ordered. Id.—Self-invited Imprisonment—Voluntary Surrender of Defendant—Refusal of Writ.—The right to a writ of habeas corpus to determine the illegality of a detention under criminal process is not intended to apply, and may not be invoked, when the imprisonment which is made the basis of its issuance is self-invited, and the surrender by the sureties is made at the instance of the petitioner, and is solely for the purpose of making a case on the face of the petition to which the provisions of the habeas corpus act will apply. Id.—Defendant Admitted to Bail—Surrender by Sureties at Bequest of Defendant.—The writ of habeas corpus cannot be used to secure the discharge of a defendant indicted for bribery, on the ground that he had not been brought to trial within the statutory period and that the delay was without good cause and against his protest, when it appears that he had been admitted to bail during that period, and had procured the sureties on his bail bond to surrender him into custody solely for the purpose of working an imprisonment upon which to base an application for the writ. Id.—Mandamus Lies to Compel Dismissal of Prosecution.—Where the superior court, without good cause and arbitrarily, has postponed the trial of a defendant without his consent beyond the sixty days within which the statute declares he must be tried, or the indictment -against him dismissed, he is entitled to relief by a proceeding in mandamus to compel a dismissal of the indictment. (Strong v. Grant, 99 Cal. 100, disapproved.) Id.—Bules Begulating Issuance of Writ—Controlling Discretion— Compelling Court to act in Particular Way.—While the general rule obtains that a writ of mandate cannot be issued to correct the errors of a court in passing upon questions regularly submitted to it in the course of judicial proceedings, or to control the exercise of its discretion, it is not universally true that such writ will not issue to control such discretion or to require a judicial tribunal to which a matter for determination is submitted, to act in a particular way. Id.—Evidence of Good Cause fob Delay in Trial.—Such a writ will only issue where there is an entire absence of any showing constituting good cause presented in the superior court upon the hearing of the motion to dismiss. If the evidence presented on that subject was conflicting, or on the conceded facts in evidence a reasonable deduction therefrom would support the action of the trial court in denying the motion, a writ of mandate will be denied.
160 Cal. 349Potter v. County of Santa Barbara (1911)
Permanent Road Division—Jurisdiction of Supervisors—Publication of Petition—Affidavit need not be Published.—In proceedings for the formation of a “permanent road division,” under title VI, part III, article IX, of the Political Code, it is not essential, to the acquisition of jurisdiction by the board of supervisors, that the affidavit which section 2747 provides shall aceompany the petition, shall be included in the publication of the petition required by section 2748. Such affidavit need not he published. The publication of the petition proper conveys the constructive notice to the parties interested. Id.—Form of Coupon.—Sufficiency of Order Determining.—Where an order of the board of supervisors sufficiently determines the form of coupon No. 1 on bond No. 1, of a permanent road district, a further direction that “coupon No. 1 on bonds numbered 2 to 100 inclusive, shall he in the same form, except as to the number of the respective bonds to which each of said coupons shall he attached,” sufficiently conforms to the provisions of section 2764 of the Political Code, requiring the supervisors by order to prescribe the form of the coupons. It is not essential that ’ the coupons, as attached to each bond, should have any number. Id.—Alternative Method of Road Construction — Exclusion of Roads in Municipal Corporations.—The object of the “Permanent Road Division” Act, and of section 2773 of the Political Code, is to provide an alternative method for road construction, which should not operate within municipal corporations at all, but which should operate concurrently, and without repeal or modification of other acts of similar tenor, upon highways not within municipal corporations. Id.—Supervisors have Control over Highways.—The authority over public highways lying outside of municipal corporations is vested in the boards of supervisors of the respective counties in which such highways run. Id.—“Division” and “District” are Synonymous.—In section 2763 of the Political Code, providing for the issuance of bonds, and raising money by taxation to pay them and the interest thereon, the words “said division” and “said district” are used interchangeably and have the same meaning. Id.—Levy and Collection of Taxes for Payment of Bonds..—In the absence of any special provision in that act, determining upon what basis the tax is to he levied, or the method of its collection or enforcement, the tax will be based ad valorem, and the mode of levy and collection will he that provided in sections 3607 to 3900 inclusive of the Political Code. Id.—Formation of Road District—Landowners Qualified to Petition for—Special Legislation.—The fact that those who can sign the petition for the formation of the permanent road district is restricted to landowners residing within the district, to the exclusion of non-resident landowners, and that resident land-owning aliens and resident land-owning women are given the suffrage, does not render the act special legislation, forbidden by section 24 of article I of the constitution, which provides that no property qualification shall ever be required for the right of suffrage. Id.—Formation of District a Legislative Function.—The formation of such a district is a function pertaining purely to the legislative branch of the government. It may create them without giving any person a voice upon the matter, or may do so by giving such persons as it may think best an opportunity to be heard. Id.—Bonds are Issued by Supervisors as Legislative Agency.—The permanent road division, as a corporate entity, does not issue the bonds. The agency of the legislature for the bond issue is the board of supervisors, and the tax for their payment is imposed upon the property of the division. Id.—Title of Act—Subject Embraced in Title.—The title of the act of March 19, 1907, entitled “An act to repeal article IX of chapter II of title VI of part III of the Political Code, and every section thereof, and to add to said code a new article to said chapter, to be numbered article IX, embracing sections twenty-seven hundred and forty-five to twenty-seven hundred and seventy-two, both inclusive, relating to permanent road divisions,” embraced but one subject—namely, “permanent road divisions,” and all the matters treated under that subject in the act are strictly germane to it.
160 Cal. 357Ex Parte Casey (1911)
Criminal Law—Conviction while on Parole—Imprisonment—Service of Time under Different Judgments.—Where a prisoner, while at liberty on parole, is convicted of another offense, and again imprisoned, the time during which he was so at liberty must be credited to him as time served on the original judgment, and when again imprisoned, after conviction of such subsequent offense, he is imprisoned not only under the second judgment, but also under the first judgment. 1 Id.—Judgments of Imprisonment run Concurrently.—Except in the two cases specified in sections 669 and 105 of the Penal Code, judgments of imprisonment in the state prison run concurrently.
160 Cal. 358People v. Jones (1911)
APPEAL from a judgment of the Superior Court of Plumas County and from an order refusing a new trial. J. 0. Honour, Judge. The facts are stated in the opinion of the court.
160 Cal. 372Bender v. Hutton (1911)
Mandamus—Making of Discretionary Orders—Satisfactory Evidence.—The supreme court will not, by a proceeding in mandamus, compel the superior court or a judge thereof to make orders in matters confided to their discretion, on which they are to act upon evidence satisfactory to them, where the evidence to essential facts, though formally sufficient, is not satisfactory to them, except in cases where there has been a manifest abuse of their discretion. Id.—Publication of Summons—Affidavit Showing Residence of Defendant.—Where the sole affidavit presented for an order for the publication of summons against an alleged non-resident defendant was that of the plaintiff, who merely deposed “that the last known address of said defendant was and is” a specified place, “and this defendant now resides at” said place, it was not an abuse of discretion for the trial judge to refuse to make such order, on account of the insufficiency of the affidavit to satisfy him that the residence of defendant was at the place designated, and a writ of mandate will not lie to compel him to make the order. Id.—Grounds of Affiant’s Belief.—Under such circumstances, the judge was justified in requiring a statement of the grounds of the affiant’s belief in order to determine whether they are sufficient to satisfy the mind and conscience of a reasonable man that the fact is as alleged.
160 Cal. 374People v. California Safe Deposit & Trust Co. (1911)
APPEAL from an order of the Superior Court of the City and County of San Francisco denying a petition of the interveners to have it declared that the savings depositors of the California Safe Deposit and Trust Company, an insolvent bank, were entitled to have their claims paid in advance of the commercial depositors. J. M. Seawell, Judge. The facts are stated in the opinion of the court.
160 Cal. 378Ex Parte Karlson (1911)
APPLICATION for a Writ of Habeas Corpus directed to the Sheriff of Los Angeles County. The facts are stated in the opinion of the court.
160 Cal. 388Matter of Application of Hughes (1911)
Criminal Law—Sustaining Demurrer to Information—Order for Filing New Information.—Where a demurrer to an information is sustained, an order of the court to the effect that it was of the “opinion that a new information should be filed, which would do away with the objection and be sufficient in all respects,” is a sufficient direction by the court for the filing of a new information, within the meaning of section 1008 of the Penal Code.
160 Cal. 390Morrissey v. Gray (1911)
APPEAL from a judgment of the Superior Court of Butte County and from an order refusing a new trial. E. P. McDaniel, Judge. The facts are stated in the opinion of the court.
160 Cal. 399Matter of Shay (1911)
Contempt op Court—Violation op Duty by Attorney—Contempt not in Presence op Court.—The .amendment of 1891 to subdivision 13 of section 1209 of the Code of Civil Procedure, providing that "no speech or publication reflecting upon or concerning any court, or any officer thereof, shall be treated or punished as a contempt of such court, unless made in the immediate presence of such court while in session, and in such a manner as to actually interfere with its proceedings,” was not intended to modify, and did not impliedly repeal, subdivision 3 of that section, which makes misbehavior in office, or other willful neglect or violation of duty by an attorney, or other person, appointed or elected to perform a judicial or ministerial service, a contempt of court. Id.—Amendment to Section 1209 op Code op Civil Procedure.—The purpose of that amendment was to prevent the punishment of ordinary citizens, not connected with the court nor owing to it any special duty of fidelity and respect, for any speech or publication, in censure or abuse of the court or the justices thereof, made to other persons, or to the general public, or even to the justices themselves, in the exercise of the common privilege of free speech. Id.—Contempts by Court Officials not in Presence of Court.—Attorneys and such other persons are actually or potentially officers of the court, and stand in confidential relations towards it, and in consequence thereof they owe to the court the duty of greater fidelity and respect than are due from other persons. Their special duties may be violated by acts not done in the immediate presence of the court, and which would not influence the judges nor affect the proceedings, but which would tend to degrade the court in the minds of the people. For such a violation of his duty, an attorney may be punished for contempt. Id.—Letter by An Attorney to Another—False Statement of Intimacy with Justices of Supreme Court.—A letter written by an attorney at law to another, in the course of professional business, falsely imputing to the justices of the supreme court improper conduct of which they are entirely innocent, and calculated to create the false impression that the members of that court are on terms of undue intimacy with powerful litigants, constitutes a contempt of court, although the letter was not intended to be made public, and it became public against the wish of the writer and the recipient. Such a false impression is most mischievous and must tend greatly to impair the confidence of the people in the integrity of the court.
160 Cal. 410Ex Parte Goodrich (1911)
APPLICATION for a Writ of Habeas Corpus directed to the Chief of Police of the City of Los Angeles. The facts are stated in the opinion of the court.
160 Cal. 423Brookes v. City of Oakland (1911)
Constitutional Law—Due Process op Law—Local Assessment Districts—Notice and Opportunity to Be Heard—Legislative Delegation op Authority to Create Districts.—Under the constitutional provision that no person shall be deprived of his property except by due process of law, it is not within the power of the legislature to confer upon a city council, or other local body, the authority to create local assessment districts for taxation to pay for local improvements, without some provision for notice to the persons interested and a hearing upon the question of the limits of the district and the exclusion of their property therefrom, if it is found not to be benefited thereby. Such an act, making no provision for such notice, is unconstitutional and void. Id.—Legislature May Fix Limits op District—Benefits to Landowner.—The legislature itself has the power to fix by statute the limits of a local taxing district, such as a sewer district embracing a portion of a municipality, without a formal notice or hearing, and when it has done so, the courts will not inquire into the matter ef a hearing before the legislature, nor into the legislative decision as to the property benefited and properly included in the district, but will regard that determination as final and conclusive. Where, however, the legislature commits the determination of that question to some local tribunal, at some stage in the proceedings, in order to constitute due process of law, the landowner must be accorded a hearing upon the question whether or not his land is benefited by the proposed public improvement, and whether or not it shall be, in effect, ex-excluded from the district, although within its territorial limits. Id..—What Constitutes Due Process op Law a Federal Question.—■ The question whether or not an act operates to deprive persons of property without due process of law, in contravention of the fourteenth amendment of the constitution of the United States, is a federal question, upon which the decisions of the supreme court of the United States are the controlling authority. Id.—Sewer Districts in Municipalities—Act op February 13, 1911, Unconstitutional.—The act of February 13, 1911, providing that the city council of any city may create, within such city, separate sewer districts, whenever it may be necessary or convenient in their judgment for the proper sanitation of such district, and authorizing the issuance of bonds for the construction of sewers therein, to be paid by means of taxes levied and assessed upon the property within' the district, the same to be levied, assessed, and collected in the . same manner and at the same time as other taxes for municipal purposes are levied, assessed, and collected, is .unconstitutional and void, for the reason that it contains no provision whatever for any notice or hearing upon the question of the limits of the sewer district, and no opportunity is afforded a property-owner to be heard upon the question whether the proposed sewer will benefit his property, or the question whether his property should be included in the district to be taxed for its construction. Id.—Notice in Respect to Equalization op Taxes Insuppicient.—No such notice or hearing is afforded the owner of property within the proposed sewer district, by the hearing with respect to the regular annual valuation of his property by the city assessor before the city board of equalization, under sections 3673 and 3682 of the Political Code, which the city charter makes applicable to assessments for city purposes. Id.—Bonds op District Are Invalid—Deprivation op Property without Due Process op Law.—A resolution of the city council purporting to create such a sewer district is invalid, and the bonds proposed to be issued for the contemplated work would be void, for the reason that the property-owners will be deprived of their property to the extent of the taxes they may be compelled to pay if the proceedings are carried out, without due process of law, in that they will be afforded no opportunity to be heard with respect to the question whether or not their property is benefited by the sewer and was therefore properly included in the district to be taxed. Id.—Bonds not Municipal Obligations..—Under such statute, the bonds provided for therein do not become obligations of the city in which the district may be situated, and there is no constitutional provision requiring that the city should become liable thereon. Consequently provisions of the city charter fixing the rate of interest on city bonds issued for municipal improvements are inapplicable thereto. Id,—Repeal by Implication op Pbior Act.—The act of February 13, 1911, if in conflict with the act of 1891 (Stats. 1891, p. 84), to the effect that no city shall incur an indebtedness for public improvements exceeding fifteen per cent of the assessed value of the taxable property therein, to that extent operated to repeal the former act. Id.—Seweb Distbict undeb Vkooman Act.—The provisions of the Vrooman Act, authorizing the construction of sewers in cities, to be paid for by special assessments upon the property within a district fixed by the city council, enables a sewer to be constructed substantially in the manner attempted to be provided for in the act of 1911, and the Vrooman Act makes proper provision for a hearing before the council as to the extent of the assessment district, before it is formed.
160 Cal. 435Butler v. Ng Chung (1911)
APPEAL from a judgment of the Superior Court of the City and County of San Francisco and from an order refusing a new trial. James M. Trontt, Judge. The facts are stated in the opinion of the court.
160 Cal. 441Heier v. Krull (1911)
Surface Water—Eights and Duties of Upper and Lower Landowners..—Every landowner must bear the burden of receiving upon Ms land the surface water naturally falling upon land above it and naturally flowing to it therefrom, and he has the corresponding right to have the surface water naturally falling upon his land or naturally coming upon it, flow freely therefrom upon the lower land adjoining, as it. would flow under natural conditions. Id.—Landowner Mat Complain of Augmentation of Natural Flow. —From these rights and burdens, the principle follows that he has a lawful right to complain of others, who, by interfering with natural conditions, cause such surface water to be discharged in greater quantity or in a different manner upon his land, than would occur under natural conditions. Id.—Pleading—Denial of Increase of Natural Flow—Material Issue.—In an action to enjoin the defendants from enlarging a certain slough and from constructing or maintaining a proposed ditch, and from doing any other act or thing whereby any of the waters falling upon lands lying above the plaintiff’s lands might be precipitated, or the flow thereof accelerated, to or upon the plaintiff’s lands, an averment in the answer of the defendants, which in effect denies that the alleged excavations would cause the water falling upon such upper lands to be carried to plaintiff’s lands in greater quantities than would occur under natural conditions, raises a material issue, and it was error to strike it out. Id.—Irrigation District—Increase of Flow by Artificial Ditch.— Allegations in such answer, to the effect that a drainage district had been previously formed for the purpose of draining lands in the vicinity of plaintiff’s lands, that such district, under proper proceedings for that purpose, constructed the ditch over the plaintiff’s lands for the purpose of draining the waters of said slough, and that the district purchased and owns a right of way over the plaintiff’s lands for that purpose, are immaterial, and were properly stricken from the answer. Such facts would not entitle the district or any other person to cause additional surface water to flow in the ditch sufficient to make it overflow its banks and injure the plaintiff’s lands.
160 Cal. 446Smith v. Gate City Oil Co. (1911)
Corporation—Assessment—Failure to Publish Notice of Delinquent Sale—Assessment not Invalidated—New Proceeding for Collection.—Where a resolution of the board of directors of a corporation levying an assessment upon the corporate stock, fixed the day on which it became payable, the day it would become delinquent, and the day of sale of the delinquent stock, the failure to publish notice of the delinquent sale as of such day rendered invalid a sale on that day, or on any subsequent day to which that sale should be postponed under the provisions of section 345 of the Civil Code. It did not avoid the assessment, but made it necessary, under section 346 of that code, to repeat all the proceeding except the assessment, and by resolution to fix new dates of maturity, delinquency, and sale, and to give notices for such new delinquency and sale. Id.—Construction of Code Provisions.—Sections 345 and 346 of the Civil Code must be construed together and the provisions of both given force, if possible. They are not inconsistent. The first provides for the extension of time in the case of proceedings for collection by sale which it is proposed to complete. The other provides for the inauguration of an entirely new proceeding for collection, in case the first attempt becomes invalid because of any substantial error or omission. Id.—Date of Delinquency Fixed More than Sixty Days after Order for Assessment.—A subsequent order of the board of directors, made under the permissive provisions of section 346 of the Civil Code, fixing a new date for the delinquency of the assessment, is not invalidated because such time was fixed more than sixty days after the date of the passage of the original resolution levying the assessment. The provision of section 334 of that code, that the order levying the assessment must fix the date of delinquency at a time “not less than thirty nor more than sixty days from the time of making the order levying the assessment,” is not applicable to new proceedings initiated under section 346 for the collection of an assessment previously levied.
160 Cal. 450Estate of Ricks (1911)
APPEAL from a judgment of the Superior Court of Humboldt County entered upon an order granting a nonsuit in a contest of a will. G. W. Hunter, Judge. The facts are stated in the opinion of the court.
160 Cal. 467Estate of Ricks (1911)
Will—Revoking Probate—Citation Must Issue within One Tear— Voluntary Appearance in Contest.—As a prerequisite to the maintenance of a contest to revoke the probate of a will, the citation provided for by section 1328 of the Code of Civil Procedure must be issued within a year after probate, and the proceeding should be dismissed for any failure in that respect, if there is no voluntary appearance within a year of all persons entitled to a citation. Id.—Voluntary Appearance op Proponent and Beneficiary—Waiver of Defective Citation.—An executor of and sole beneficiary under a will, who, with the exception of the contestant, was the sole heir of the decedent, waives the right to object to a defective issuance or service of the citation, by voluntarily appearing in the proceeding, within two weeks after the institution of the contest, and filing a demurrer as “the proponent and legatee named in the will.” Id.—Judgment as Bes Adjudicata—Contest of Will—Pendency of Appeal.—Only final judgments can be pleaded or proved as res adjudicáta; and a judgment, entered upon an order granting a non-suit of a contest of a will, does not become final while an appeal therefrom is pending, or until the time to appeal therefrom has expired. Id.—Contest of Will and Codicil—Amendment of Contest After Year from Probate.—In a proceeding to revoke the prohate of a will and a codicil, in which a judgment is rendered upholding the will, the allowance of an amendment setting up a new ground of contest directed to matters solely affecting the will, is without prejudice to the proponent, notwithstanding such amendment is made more than one year after the probate. Id.—Undue Influence—Presumption—Son Sole Beneficiary of Mother.—The fact that the sole beneficiary of a will was the son and business manager of the testatrix does not create a presumption that he abused such relation by unduly influencing the making of the will in his favor. Id.—Definition of Undue Influence and Fraud.—Undue influence consists in the exercise of acts or conduct by which the mind of the testator is subjugated to the will of the person operating on it; some means taken or employed which have the effect of overcoming the free agency of the testator and constraining him to make a disposition of his property contrary to and different from what he would have done had he been permitted to follow his own inclination or judgment. Fraud, defined generally, consists of false statements or false pretenses, or the employment of any trick or device or means of deception for the purpose óf defrauding another. Id.—Distinction between Undue Influence and Fraud.—Undue influence and fraud are not identical. The one has reference to the subjugation of the will of the testator and controlling it. The other to a deception practiced upon the testator. While in a sense undue influence is a species of fraud, it may be exercised without any actual fraud, or false representation being made to the testator. Id.—Fraud as Element in Undue Influence.—When fraud or fraudulent representations made to the testator are relied on as an element in undue influence, it must appear not only that the representations were false and believed to be true by the testator, but that they were made the basis of importunity and mental pressure upon the testator and that the testamentary act was the product thereof. When this appears, such fraud is an element in undue influence and upon the proof of its employment to overcome the will of the testator, a finding of undue influence may be based. Id.—Fraudulent Bepresentations Vitiating Will.—On the other hand, representations which are false, while they may exert an influence upon the testamentary disposition, unless they are made not only for that purpose, but are used as pressure upon the mind of the testator to affect the disposition of his property, constitutes fraud purely. If the testator, under a belief in the truth of such false statements, and influenced by them, makes a will disinheriting one who, but for a belief in their truth, would otherwise have been provided for in it, the will is the product of fraud on the testator and subject to be declared invalid for that reason. Id.—Fraudulent Representations not Warranting Finding op Undue Influence.—Undue influence and fraud constitute two separate and distinct grounds, upon proof of either of which a will may be declared invalid, and proof simply of fraud or fraudulent representations will not support equally an issue of undue influence or an issue of fraud. Id.—False Representation That Son Had Relinquished Interest in Mother’s Estate.—Where a codicil to a will is contested on the grounds of undue influence and fraud practiced by the sole beneficiary on the testatrix, the jury is not warranted, in the absence of any proof of the exercise of undue influence by the beneficiary, in finding that such influence had been exercised by him, merely from evidence that he had made a false and fraudulent statement to the testatrix, who was his mother, to the effect that the contestant, who was another of her sons, had made an agreement to reliquish all interest in her estate. Id..—Evidence—Declarations op Testatrix in Presence op Sole Benepiciart—Admissions on the Trial op Such a Contest.— Declarations made by the testatrix, in the presence of the executor and sole beneficiary of her will, to the effect that he had made such a statement to her, taken in connection with the conduct of the beneficiary at the time the declarations were made, in not denying the same, are admissible in evidence as an admission on his part of the fact of making such a statement. Id.—Declarations op Sole Benepiciart.—On such trial, declarations and admissions made by the executor and sole beneficiary of the will are admissible against him to establish any fact in issue upon the validity of the will which they have a tendency to establish, and are not limited solely to the purpose of showing the feelings and relations existing between the parties. Id.—Evidence op Declarations op Beneficiaries under Will.—While the general rule is that declarations or admissions of one of several executors, devisees, or legatees are inadmissible in an attack on the validity of a will, because the interests of the parties are several and not joint, this rule has no application where this condition of severalty of interests does not exist. Id.—Declarations op Testatrix.—The declarations of the testatrix, when not part of the res gestee, are not admissible to prove, nor may they be considered by the jury for the purpose of showing, the exer- cise of undue influence, although they are entitled to he shown and considered for the purpose of illustrating the state of mind of the testatrix when that state of mind was material.
160 Cal. 486Boland v. All Persons Etc. (1911)
APPEALS from orders of the Superior Court of the City and County of San Francisco denying motions to set aside a judgment by default. George A. Sturtevant, Judge. The facts are stated in the opinion of the court.
160 Cal. 491Haub v. Leggett (1911)
Estate of Deceased Person—Effect of Allowance of Claim.—Under the provisions of the Code of Civil Procedure, an allowed claim against an estate of a deceased person does not attain to the dignity and force of an absolute judgment until, upon the settlement of an account, an order is made directing the executor to pay it. Prior to that time it ranks as an acknowledged debt, but it is still subject to contest by the heirs. It has not become conclusive in favor of the claimant. Id.—Partial Allowance of Claim—Effect of Filing—Suit for Entire Demand.—The allowance of a claim by the executor and judge for a portion of the amount for which it was presented, and its subsequent filing by the claimant with the clerk of the court, does not constitute conclusive evidence of acceptance by the claimant of the part allowed in full satisfaction of his debt, or operate as a bar to a suit to recover the whole claim. Id.—Judgment in Action on Partially Allowed Claim.—If the creditor sues for the entire demand, giving no credit for the part allowed, the executor or administrator can set up the allowance in the answer, and the record will then necessarily show whether the judgment given is for the whole claim, or for the balance only. If it is for the whole, the allowance formerly made will be merged in such judgment. If for the balance, only, the former allowance will stand. Id.—Partial Allowance May be Treated as Rejection.—The creditor may treat a partial allowance by the executor as a rejection of the entire claim and may bring his suit at once without presenting it to the judge at all. But there is nothing in the statute which makes this the only mode of procedure or which declares that he cannot sue for the whole, if he first presents it to the judge and files it with the papers after the judge has approved the partial allowance of the executor.
160 Cal. 497Litch v. White (1911)
APPEAL from a judgment of the Superior Court of Butte County. K. S. Mahon, Judge presiding. The facts are stated in the opinion of the court.
160 Cal. 501Osborn v. Hopkins (1911)
Statute op Limitations—Pleading.—In pleading the defense of the statute of limitations it is not necessary to set up the section and subdivision of the statute, if the facts showing the bar of the statute are alleged. Id.—Action por Services—Averment op Facts Showing Bar of Statute.—In an action to recover for personal services rendered in pursuance of a verbal contract, the defense of the statute of limitations is sufficiently pleaded by an averment that “plaintiff’s cause of action for compensation for said services did not accrue within two years next before the commencement of this action.” Id.—Services as Attorney—New Trial—Specification of Insufficiency of Evidence.—In an action to recover for services as an attorney-at-law, in which the jury found that certain of the services sued for, to which the defense of the statute of limitations was interposed, were not barred, a specification in the statement on motion for a new trial, of the particular in which the evidence was insufficient to sustain the verdict, that “The evidence shows that the statute of limitations has run as to the services alleged to have been rendered by the attorney,” is sufficient to enable the trial court to consider the matter of the insufficiency of the evidence on the question of the statute of limitations. Id.—Sufficiency of Specification.—Such a specification is sufficient, if it is of such a nature as to fully inform the trial court and the opposing party of the point to be made in regard to the insufficiency of the evidence. Id.—Attobney-at-Law—Retainer in All Litigation of Specified Character—Entire Contract.—The mere employment or retainer of an attorney to represent his employer in all possible litigation of a specified character, to be attended to separately as they arise, which is indefinite both as to the number of suits or proceedings that may be included, and the period of time within which they may be instituted, where the attorney is to be paid simply the reasonable value of such services as he is actually called upon to perform in such litigation as may be instituted, does not create an entire contract with respect to all the services rendered by the attorney, against which the statute of limitations does not commence to run until the termination of all the various services. Id.—Services in Particular Litigation—Statute Runs from Performance.—Under such a retainer, the statute of limitations is set in motion, as to the services rendered in each particular matter of litigation, upon the full performance of the services in such matter.
160 Cal. 508Sulloway v. Sulloway (1911)
Will—Joint Devise op Water-right and Ditch to Several Devisees —Basement for Extension of Ditch.—Where a testatrix by her will devised adjoining tracts of land in severalty to her two sons, and also devised to them, as joint owners, a certain water-right and water ditch used by her to convey water to such lands, which ditch terminated on the portion of the land given to one of the sons, with the request that they jointly use the same, the other son acquires the right to extend the water ditch from its terminus over the land devised to his brother to and for the benefit of his own land, and the brother’s land is created a servient tenement for that purpose. Id.—Interpretation of Grant—Essentials to Use Presumed to be Granted.—-Under section 3522 of the Civil Code, one who grants a thing is presumed to grant also whatever is essential to its use, if it is within the power of the grantor to do so, and there is nothing in such will indicating a contrary intention on the part of the testatrix. Id,—Action to Establish Easement in Extension or Ditch—Pleading—Evidence.—In an action by the devisee of the dominant tenement, to be let into possession, use, and enjoyment of his moiety of said water-right and water ditch, and of an extension of said ditch constructed by him across the land of the other devisee, and to establish an easement upon the land of the latter in favor of his land in such extension of the ditch, it was not necessary, in order to entitle the plaintiff to the relief demanded, in the absence of any issue being tendered in respect thereto by the answer, for the complaint to allege or the evidence to show the amount of water owned or used by the testatrix, or the capacity of the ditch owned by her; and, where no issue was raised as to the reasonableness of the location of the extension ditch actually constructed by the plaintiff, or of its size or capacity, there was no necessity for any evidence as to the exact location, size, or capacity of such extension. Id,—Refusal to Reopen Case.—If evidence was necessary to definitely settle any question of the size or capacity of such ditch, it was error for the trial court, after the close of the trial, and when the objection was first raised in the argument of counsel, to refuse the request of the plaintiff to open the case for the purpose of introducing evidence on such matters.
160 Cal. 515Weller v. Brown (1911)
APPEAL from a judgment of the Superior Court of Mendocino County. J. Q. White, Judge. The facts are stated in the opinion of the court.
160 Cal. 522Smith v. Furlong (1911)
Tax Title op State—Sale by Tax-Collector—Mailing op Copy op Notice to Former Owner Essential.—Where the state had acquired a tax-title, and the tax-collector was authorized to sell the same, after publishing and posting the required notices of the time and place of sale, with the statutory contents as provided in section 3897 of the Political Code, including the mailing of a copy thereof “to the party to whom the land was last assessed next before the sale, at his last known post-office address,” the mailing of this copy was one of the facts necessary to authorize the tax-collector to make the sale. Id.—Means op Information to Tax-Collector op Taxpayer’s Last Address.—Assessment Book—Delinquent List.—Since the assessment book and delinquent list are required by law to show the known name and address of each taxpayer, and it appears that the assessment book and delinquent list showed the name and address of the taxpayer, for the year for which the property was sold for taxes to the state, and that the same person continuously paid taxes thereafter, until the deed by the state was executed, it may be inferred from such statutory provisions that the tax-collector was required to consult those books to learn the address of the person to whom the property was last assessed, and that the assessment book under which he was required to make the sale afforded him ample means of information as to the last known address of the taxpayer. Id.—Becital of Want op Knowledge op Address in Deed—Prima Facie Evidence—Bebuttal—False Becital—Invalid Deed.—The recital of “want of knowledge of the address of the taxpayer,” in the deed, “and that for that reason no copy of the notice was mailed,” is, under section 3998, of the Political Code, only prima fade evidence of the facts recited; and it was sufficiently rebutted by proof that the collector was chargeable with notice of the last known address of the taxpayer. The recital being thus shown to be false in contemplation of law, the tax-collector’s deed to the plaintiff was invalid, and passed no title from the state. Id.—Provision op Conclusiveness op State’s Title Inapplicable to Transfer prom State.—The provision making the recitals in the deed to the state conclusive evidence of the regularity of all proceedings, under section 3787 of the Political Code, has no application to a transfer of title from the state under section 3898 of the Political Code, under which the tax-collector’s deed is expressly made only prima fade evidence of the facts recited therein. Id.—Power of State..—Though the state has power to make a deed transferring its title conclusive evidence of the facts recited, yet it has not exercised such power. Id.—Purpose of Law as to Prima Facie Evidence.—The only purpose subserved in making the tax-collector’s deed from the state only prima facie evidence of the facts recited, was to afford the delinquent owner an opportunity to show that express and substantial requirements of the law for his benefit had not been complied with, and hence the deed was invalid. Any contrary view would, in effect, render the deed conclusive evidence, instead of prima fade evidence, as provided. Id.—Effect of Invalid Transfer of State’s Title—Right of Redemption by Taxpayer from State.—Where a transfer' of the title from the state is shown to be invalid, the right of redemption by the taxpayer from the state still continues. Id.—Action to Quiet Title of Transferee Against Taxpayer—Proper Judgment.—Where the action was brought by the transferee from the state to quiet his title against the former taxpayer, and it was ■ shown that the plaintiff obtained no title from the state by his purchase, judgment in such action was properly rendered for the defendant.
160 Cal. 530Simpson v. Police Court of Riverside (1911)
APPEAL from a judgment of the Superior Court of Riverside County awarding a peremptory Writ of Prohibition. F. E. Densmore, Judge. The facts are stated in the opinion of the court.
160 Cal. 537People v. Babcock (1911)
Criminal Law—Rape—Female under Age op Consent—Absence op Force.—Neither force nor violence is essential to the commission of the crime of rape, upon a female under the age of sixteen years, and it is immaterial that the act of sexual intercourse was with her full consent. The offense of assault with intent to commit rape is included in such a charge of rape. Id.—Assault with Intent to Commit Rape—Elements op Oppense.— One who lays his hands upon such a female, with the intent and for the purpose, then and there to accomplish an act of sexual intercourse with her, is by so doing guilty of an assault with intent to commit rape, even though he does not use or intend in any event to use any force or violence, and the female in fact offers no resistance whatever, or even expressly consents to all he does. The offense is complete when he has thus laid his hands upon her with the intention of then and there accomplishing such purpose, and it is entirely immaterial that he subsequently voluntarily desists, without accomplishing his purpose. Id.—Conflict of Evidence.—Where the evidence is conflicting as to whether or not the female was of the age of sixteen years at- the time of such assault, the determination of that question is for the jury and the trial court. Id.—Age of Prosecutrix—Hearsay Evidence—Absence of Foundation for Impeachment.—A witness for the defense cannot testify to the age of the girl assaulted as compared with the age of her own daughter, when it appears that her only knowledge on that question was such as she had acquired by reason of a statement of the girl’s mother, as to her age, made in a casual conversation about the two girls, there having been no foundation laid for any impeachment of the mother, who had previously testified for the prosecution that the girl was over the age of sixteen years. Id.—Evidence of Comparative Appearance of Prosecutrix at Different Times.—It was not error to sustain objections to questions asked by the defense as to the appearance of the prosecutrix- on the day of the trial as compared with her appearance on the day of the assault, so far as age was concerned, and as to whether she dressed differently on those occasions, where no attempt was made by the defense at the time of the ruling, to acquaint the trial court with the precise object of the questions. Id.—Instructions—Use of Word “Child.”—After the trial court had clearly and definitely instructed the jury that it was for them to determine the question of the age of the prosecutrix, and to acquit the defendant if they had a reasonable doubt that she was under the age of sixteen years, the use of the words “child in question” in an isolated instruction involving a definition of the crime of assault with intent to commit rape, cannot be construed as an intimation by the judge that he- was of the opinion that she was under the age of sixteen years, or warrant the inference that the jury so understood it. Id.—Failure to Produce Beoord of Birth—Misconduct of District Attorney—False Statement Deemed Hnprejudicial.—Where the record on appeal fails to affirmatively show that there was any official county record of the date of the birth of the prosecutrix showing anything concerning her age inconsistent with the evidence of the witnesses for the prosecution on that question, and neither party claimed on the trial or on the motion for a new trial, that such a record was in existence, it will be assumed on appeal that there was no such record. Consequently, an erroneous statement by the district attorney in his argument to the jury, in esplanation of his omission to offer such record at the trial, that the law, at the time of the birth of the prosecutrix, did not require the keeping of a record of births, will be deemed to have been without prejudice. Id.—Bequest for Instruction to Disregard Improper Statement— Appeal.—An improper statement made by the district attorney in his argument to the jury cannot avail the defendant on appeal, unless in addition to excepting to the statement at the time, he requests the court to instruct the jury that it is improper and to disregard it. Id.—Statements by Bailiff During Trial—Opinion of Defendant’s Guilt—Misconduct without Prejudice.—Statements made by the bailiff of the court, during the progress of the trial, expressive of his opinion that the defendant was guilty, which did not appear to have been made within the presence or hearing, or to have come to the knowledge of any juror, although reprehensible, will be deemed to have been without prejudice to the defendant. Id.—Placing Jtjby in Chabge of Disqualified Bailiff.—The fact that the court placed the jury in charge of such bailiff during a recess in the arguments, and when it retired to deliberate on its verdict, will not warrant a reversal of the judgment of conviction, there being nothing to.show that the defendant on either of such occasions made any showing of fact tending to prove that the bailiff had expressed any opinion relative to the defendant’s guilt, or that the fact of disqualification had in any way been brought to the attention of the trial court.
160 Cal. 547In Re the Estate of Walker (1911)
APPEAL from an order of the Superior Court of Santa Cruz County admitting a will to probate. Lucas F. Smith, Judge. The facts are stated in the opinion of the court.
160 Cal. 551In Re the Estate of Loucks (1911)
Estate of Deceased Person—Persons Killed in Same Calamity— Proof of Survivorship.—In. a proceeding for the distribution of the estate of a deceased person, which involves the determination of the question of the survivorship of two persons who were killed in the same calamity, the fact of survivorship must be established by a preponderance of evidence, not because the heirs of one decedent or of another begin a contest, but because it is the duty of the court to determine the matter of heirship and survival. This duty would still exist whether any one instituted any proceeding or not. Id.—Evidence of Survivorship—Application of Presumption—In the absence of preponderating evidence to the contrary, the question of the survivorship of such persons is to be determined in accordance with the presumptions of subdivision 40 of section 1963 of the Code of Civil Procedure. Id.—Presumptions of Survivorship when Applicable.—The presump tions of survivorship provided for in that section are applicable only where the relative times of the death of persons perishing by the same disaster cannot be shown by direct or circumstantial evidence or both. Id.—Conflict of Evidence as to Times of Death—Appeal.—Where the evidence as to the relative times of the death of such persons is conflicting, a finding of survivorship contrary to the legal presump1 tions will not be disturbed on appeal. Id.—New Trial—Newly Discovered Evidence.,—Newly discovered evidence which is merely cumulative is not ground for a new trial. Id.—Evidence — Cross-Examination — Argumentative Question.— Where a witness, on his cross-examination, is shown to have made contradictory statements, concerning a fact in dispute, it is not error to sustain an objection to the further question, “Can you reconcile the two statements?” Such a question is argumentative, and designed to involve the witness in an argument. Id.—Medical Expert—Evidence of the Extent of Injuries—Absence of Change in Condition of Body.—A medical witness may be asked to describe the extent of the injuries of one of the persons killed, where there is nothing to show that any manipulations to which the body had been subjected had effected any material change in its condition between the time when the injuries were inflicted and the time when he examined it. Id.—Non-Medical Witness—Opinion as to Life in Person Injured.— A non-medical witness cannot be asked whether it appeared to him that one of the persons killed was alive a few minutes after the injuries were inflicted. Such a question calls for the opinion of the witness on a matter as to which he is incompetent. The witness can only testify to the facts observed by him supporting his belief.
160 Cal. 559Berryman v. Hotel Savoy Company (1911)
APPEAL from a judgment of the Superior Court of Los Angeles County and from an order denying a new trial. Chas. Monroe, Judge. The facts are stated in the opinion of the court.
160 Cal. 574In Re the Estate of Rohrer (1911)
Estate op Deceased Person—Contract por Services op Nurse— Failure op Legacy Intended as Payment — Claim against Estate.—Evidence that a testator desired to make payment for services rendered Mm by a nurse during Ms last illness, and to that end left her a legacy in his will, which failed because she became a witness to the will, coupled with evidence that the nurse performed the services in the expectation of receiving compensation therefor after the death of the testator, is sufficient to support a claim of the nurse against the estate of the testator for the reasonable value of her services. Id.:—Nurse Wipe op Nephew op Deceased — No Presumption op Gratuitous Services.—The fact that the nurse was the wife of a nephew of the deceased, and that she and her husband resided in the home of the deceased during the time the services were rendered, raises no presumption that the services were gratuitous. Id.—Allowance op Attorney’s Pee — Objection Pirst raised on Appeal.—An allowance of an attorney’s fee, upon the settlement of the account of an executor, cannot be reviewed on appeal, if no objection thereto was raised in the lower court.
160 Cal. 577Gardiner v. Bank of Napa (1911)
Corporation — Stockholder’s Liability for Corporate Debts — Extent of Liability to Single Creditor—Constitutional Law.— Section 322 of the Civil Code, providing the manner of enforcing the rights of a creditor of a corporation as against a stockholder, does not conflict with the provision of section 3 of article XII of the constitution of 1879, that “each stockholder . . . shall be individually and personally liable for such proportion of all its debts and liabilities contracted or incurred, during the time he was a stockholder, as the amount of stock or shares owned by him bears to the whole of the subscribed capital stock, or shares of the corporation.” Under such provisions, a single stockholder is liable to a single creditor for his proportion only of that creditor’s debt, and the creditor has no right to collect upon his individual claim a sum equal, if necessary to the satisfaction of his claim, to the stockholder’s entire liability upon the debts of the corporation.
160 Cal. 589Cook v. Civil Service Commission (1911)
’APPEAL from a judgment of the Superior Court of the City and County of San Francisco setting aside and annulling an examination which had been held by the civil service commission of that city and county for the promotion of certain captains in the fire department to the rank of battalion chief. George A. Sturtevant, Judge. The facts are stated in the opinion of the court.
160 Cal. 598Cook v. Civil Service Commission (1911)
Pubho Officers—San Francis go—Civil Service Commission—Power to strike Names from List of Eligibles.—The civil service commission of the city and county of San Francisco derives its powers from the charter of that city and county. Among those powers, is not the arbitrary right to strike names from the list of eligibles. The only authority to remove names from such a list is given by section 10 of article XIII of the charter, which provides that “the commissioners may strike off names of candidates from the register after they have remained thereon more than two years.” Id.—Appeal from Judgment Annulling List of Eligibles—Annulment of List Pending Appeal unauthorized.—A judgment of the superior court declaring void an examination which had been held by the civil service commission for the promotion of certain captains in the fire department to the rank of battalion chief, and ordering the list of eligibles annulled, from which an appeal had been taken, has no mandatory effect until made final by a cour(t having competent appellate jurisdiction, and, pending such appeal, does not justify the commissioners in setting aside the eligible list. Id.—Object of Civil Service Examinations—Commission cannot set aside Eligible List.—The purpose of holding examinations by the civil service commission is to create a permanent eligible list not subject to expunetion upon the caprice of any board or officer of the municipal government. There is no grant of power directly given by the charter, or necessarily implied from the prerogatives conferred, which enables the commission properly to set aside its own action after it had declared a list of eligibles, except in the single instance provided for in section 10 of article XIII of the charter.
160 Cal. 601California Raisin Growers' Ass'n v. Abbott (1911)
Corporations—Raisin Growers’ Association—Due Incorporation Admitted—By-laws unrecorded—Untenable Objection to Action.— In an action by a raisin growers’ association, the due incorporation of which is alleged in the complaint, and admitted by the answer, which appears to have incorporated as a co-operative association under the act of March 27, 1895, (Stats. 1895, p. 221), the objection that the plaintiff cannot maintain the action because it failed to file a copy of its by-laws with the county clerk, as required by section 5 of that act, is not tenable. Id.—Action for Accounting with Raisin Growers—Agreement for Commingling of Raisins—Average Prices—Proper Joinder of Causes and Parties.—In an action by the raisin growers’ association for an accounting with all raisin growers, with which it had contracted, where it appears that, although each grower separately contracted with the association in uniform contracts, yet each consented to a commingling of his raisins with those purchased from other producers, and to accept in payment for his raisins the average price per pound for all- raisins of like grade, and each is therefore equitably interested in the fund derived from the sale of the season’s product, held by plaintiff for distribution, a demurrer for misjoinder of causes and parties defendant was. properly overruled. Id.—Debtors to Fund and Attaching Creditors of Defendants Properly Joined as Parties.—Under section 379 of the Code of Civil Procedure, providing that “any person may be made a defendant who has or claims any interest in the controversy. adverse to the plaintiff or who is a necessary party to a complete determination or settlement of the question involved therein,” not only all the ■ growers, including those indebted to the fund for money advanced, but also the attaching creditors of the growers were properly joined as defendants, because they respectively had interests in the fund to be distributed. Id.—Defense of Escrow Agreement Unavailable—Illegality— Waiver.—The defense that the contracts were delivered to the plaintiff in escrow, by the terms of which they were not to become operative until eighty-five per cent of the raisin-bearing acreage of the state was secured by contract, and that such acreage was not secured, sets forth an illegal agreement not to be tolerated; but where it appears that the raisin growers so objecting delivered their raisins under the contracts and accepted money from the plaintiff, they thereby -waived the escrow agreement. Id.—Accounting by Agent with Principal—Books of Account—Rule Inapplicable.—The general rule that an agent accounting with his principal must show proper books of account, does not apply to this action, the main object of which is not for an accounting, and involves an accounting only as ancillary to its main purpose to have the money in the plaintiff’s hands equitably distributed among the growers, whose interest under their agreements was not a matter of bookkeeping. Id.—Judgment for Monet Only Requiring Contribution to Fund by Defendants Overpaid.—The only judgment in the action for money is not in favor of the plaintiff, hut requiring contribution to the fund by growers overpaid, in the interest of co-defendants, to avoid a multiplicity of suits and to ascertain the proper share of each defendant in the fund. Id.—Demand by Plaintiff upon Defendants for Accounting Unnecessary.—As the association was asking nothing for itself, but merely sought such accounting as would fix the distribution of the money held by it for its clients, no demand upon the defendants for an accounting was necessary. Id.—Rule of Equity to Do Complete Justice—Accounting—Adjudging Legal Matters.—When a court of equity acquires jurisdiction of an action, its rule is to do complete justice between the parties, and that it will order an accounting and settle the whole controversy, even to the extent of adjudging matters of purely legal cognizance. Id.—Defense of Contributors to Fund—Promotion by Plaintiff of Monopoly—Complicity of Raisin Growers Not Shown—Rights in Fund.—A defense by those claimed to be contributors to the fund, that the plaintiff was engaged in promoting a monopoly of the raisin trade, is not available, as against the raisin growers, or . their right to share equitably in the fund, where there is no pretense that any of the raisin growers interested in the fund to he distributed were in pari delicto, or were parties to any such illegal combination. It is certain that their individual contracts involved in the fund were not illegal, and each of them is equitably entitled to his proper share in the fund to be distributed. Id.—Knowledge of Illegal Design of Plaintiff No Defense.—If it be conceded that the raisin growers knew of the illegal design of the plaintiff to form a monopoly of the raisin trade, that fact alone would not constitute a defense to the action equitably to distribute the fund received, provided it is not made part of their contracts that their raisins sold should be used for that purpose, and they have done nothing in aid or furtherance of the unlawful design. Id.—Pleading—Averments of Fact—Receipt by Some Growers of Excessive Sums—Less Shares.—Averments in the complaint of plaintiff that some of the defendants had received more of the proceeds from the sale of the raisins than the amount to which they were entitled, and that others had received less than their shares, were averments of fact, and not of mere conclusions of law, being founded upon plaintiff’s knowledge of the net amount derived from the sale of the raisins, the number of persons entitled to the benefit of the fund, and the quantity and quality of raisins delivered by each. Id.—Rules of Pleading.—Pleadings should state the ultimate facts, and not probative facts or conclusions of law; but the same averment may be of a fact or of a conclusion of law, according to the context. Id.—Defense of Illegal Restraint of Trade Not Properly Pleaded— Reservation of Ruling Not Passed upon Immaterial.—Where the defense that the contracts were part of a conspiracy in restraint of trade was not so pleaded as to be available, the reservation of rulings upon evidence in support of the defense, upon plaintiff’s objection thereto, not finally passed upon, was immaterial error.
160 Cal. 611Smith v. Cucamonga Water Co. (1911)
J. S. Noyes, Judge presiding at trial. Benjamin F. Bledsoe, and Frank F. Oster, Judges refusing new trial. The facts are stated in the opinion of the court.
160 Cal. 618In Re the Estate of Mitchell (1911)
Will—Construction—Intention oe Testator.—The cardinal rule for the construction of all wills is to ascertain the intention of the testator, and this intention is to be ascertained from the words of his will, taking into view, when necessary or appropriate, the circumstances' under which it was made, if there is an uncertainty in its language. Id.—Trust—Precatory Clause how Construed.—Precatory words may or may not create a trust, according as they are used, and whether, in any particular will, they have been used for this purpose will depend upon the construction to be given to that will. The question for determination is, whether the devisee or legatee is the beneficiary, or merely is trustee for others, of the gift bestowed upon him; whether the wish or desire or recommendation that is expressed by the testator is meant to govern the conduct qf the party to whom it is addressed, or whether it is merely an indication of that which he thinks would be a reasonable exercise of the discretion of that . party, leaving it, however, to the party to exercise his own discretion. In order to make him a trustee, it must appear that the testator intended to impose an imperative, obligation upon him, and for that purpose has used words which exclude the exercise of discretion or option in reference to the act in question. Id.—Request addressed to Legatee.—While the desire of a testator for the disposition of his estate will.be construed as a command when addressed to his executor, it will not, when addressed to his legatee, be construed as a limitation upon the estate or interest which he has given to him in absolute terms. Prima facie, a mere request, or an expression of hope, or confidence or expectation, does not impart a command. Id.—Absolute Disposition op Residuum to Daughter—Expression op Reliance on Legatee to provide por Granddaughter.—Where a testatrix bequeaths her entire residuary estate to her daughter, “to be held and owned by her in her absolute right,” a clause in her will that she relies upon such daughter “to make at all times suitable and adequate provision” for a granddaughter, believing that such daughter will give to the granddaughter the love and care of a mother, and that she will, both during the granddaughter’s youth and upon her arriving at majority, “amply and carefully make provision for her,” does not create a trust in favor of the granddaughter. There is nothing in the circumstances surrounding the will in question, that requires a different construction or indicates a different intent. Id.—Precatory Clause Preceding Residuary Clause.—The fact that the precatory clause in the will preceded the clause making the disposition of the residuum to the daughter, does not warrant the inference that the testatrix believed that the precatory clause did create a trust in favor of the granddaughter, and that she used the words descriptive of the residuum to indicate what would be left after making adequate provision for the granddaughter.
160 Cal. 626Law Credit Co. v. Tibbitts (1911)
Angeles County and from an order refusing a new trial. Leon F. Moss, Judge. The facts are stated in the opinion of the court.
160 Cal. 630Moodey v. Connecticut Fire Insurance (1911)
APPEAL from an order of the Superior Court of Sonoma County refusing a new trial. Thomas C. Denny, Judge. The facts are stated in the opinion of the court.
160 Cal. 632Colby v. Title Insurance & Trust Co. (1911)
APPEAL from a judgment of the Superior Court of the City and County of San Francisco and from an order refusing a new trial. Frank J. Murasky, Judge. The facts are stated in the opinion of the court.
160 Cal. 647City of Lindsay v. Mack (1911)
APPLICATION for a Writ of Mandate directed to the City Clerk of the City of Lindsay. The facts are stated in the opinion of the court.
160 Cal. 649Pearson v. McKinney (1911)
APPEAL from a judgment of the Superior Court of Riverside County and from an order denying a new trial. F. E. Densmore, Judge. The facts are stated in the opinion of the court.
160 Cal. 661Kearney v. Bell (1911)
APPEAL from an order of the Superior Court of the City and County of San Francisco refusing a new trial. John Hunt, Judge. The facts are stated in the opinion of the court.
160 Cal. 671Coats v. Coats (1911)
APPEAL from' a judgment of the Superior Court of the . City and County of San Francisco. James M. Troutt, Judge. The facts are stated in the opinion of the court.
160 Cal. 680Barendt v. McCarthy (1911)
APPEAL from a judgment of the Superior Court of the City and County of San Francisco. George A. Sturtevant, Judge. The facts are stated in the opinion of the court.
160 Cal. 692Reclamation District v. Hershey (1911)
Appeal from Order Denying New Trial—Order Striking Out Amendment to Answer not Revxewable.—Upon an appeal taken only from an order denying a new trial, an order striking out an amendment to the answer cannot be reviewed. Such order can be reviewed only upon an appeal from the judgment. Reclamation District—Action to Collect Assessment—Validity of Formation of District not in Issue.—In an action by a reclamation district to collect an assessment, in which no issue is joined by the pleadings as to the validity of its formation, such validity cannot be attacked by a defendant failing to deny the averments of the complaint as to the due performance of all statutory conditions as to its organization. Id.—Rule as to Evidence under Defective Pleading Inapplicable to Admitted Facts.—The rule that the admission of evidence under a defective pleading without objection, will be construed as waiving the defect, cannot apply to facts alleged in the complaint which the answer by its silence has admitted to be true, and upon which there was no attempt to join issue. Id.—Assessment upon Lands not Benefited—Whole Tract.—A tract of land within a reclamation district is properly assessed as an entirety, notwithstanding certain fragmentary portions thereof will not be benefited by the work for which the assessment was levied. Id.—Imperfection in Plans—Estimate of Cost not Including Private Levees—Jurisdiction not Affected—Provision for Change.—The fact that there is imperfection in the plans of the work for which the assessment was levied, in not including the cost of acquiring private levees, does not go to the jurisdiction of the board of supervisors to levy the assessment, as the law itself contemplates mistakes or imperfections in the plans, by providing in section 3455 of the Political Code for “new, supplemental or additional plans.” The supervisors had power to order the assessment based upon the whole cost, as shown under the plans adopted.
160 Cal. 695Reclamation District No. 730 v. Snowball (1911)
Reclamation District—Validity of Formation—Jurat by County Clerk to Affidavit of Publication of Petition—Seal of Superior Court—Untenable Objection.—An objection to the validity of the formation of a reclamation district, based upon the alleged insufficiency of the jurat to the affidavit of publication of the petition for its formation, is not tenable, where the affidavit was admittedly in due form and was sworn to before the county clerk, with the seal of the superior court appended to the jurat. The county clerk was empowered to administer an oath, either as county clerk, or as clerk ex officio of the superior court, or as clerk of the board of supervisors; and the capacity in which he acted in administering the oath was immaterial. Id.—Supposed Absence of Seal.—Even the absence of any seal to the jurat, would have amounted to a mere irregularity not affecting the validity of the oath. Id.—Supposed Deficiency of Jurat—Presumption of Proof in Favor . of Jurisdiction.—In so far as the affidavit was necessary to confer jurisdiction upon the supervisors to act in the formation of the reclamation district, it would be presumed, if necessary, in support of a defective jurat, that they took evidence to supplement the jurat, and to show that in fact the oath was duly administered. Id.—Action by Reclamation District to Enforce Assessment—Evidence—Remonstrance to Proceedings for Organization.—In an action by the reclamation district, a remonstrance made by one of the defendants to the proceedings for organization, was not necessary to be admitted in evidence, but its admission could work no injury, as it tended to show his knowledge of the proceedings, and of the jurisdiction acquired by the supervisors as to him, though it appears that they had jurisdiction otherwise. Id.—Agreement of Property-Owners to Form New District—Proper Exclusion.—The court properly excluded from evidence an agreement between certain residents and property-owners of the district, that after complying with certain terms, they would initiate proceedings to have their lands set off into an independent reclamation district. Such agreement, not made with the district, could not bind it, nor affect its powers as an agent and mandatory of the state. Id.—Insufficient Defense to Action for Assessment by Reclamation District—Construction of Levee for District Unpaid.—It is no defense to an action for an assessment levied by an irrigation district that one of the defendants had constructed a levee for the district for which he had never been compensated. [Beatty, C. J., dissenting.]
160 Cal. 699Gurnsey v. Northern California Power Co. (1911)
Highways—Extent or Easement over Private Lands.—Control by Supervisors Limited.—The easement or right which the public acquire by the establishment of a highway over private lands, is the right to travel thereover; and the only control over it which the board of supervisors, as trustees for the public, can exercise, is such as is necessary to maintain the highway in a proper and convenient manner for the exercise of the use by the public. Id.—Bights op Owner. Subject only to Easement and Incidental Control.—The owner of land over which the highway passes, retains his right to the soil for all purposes not inconsistent with the easement, and to all profit and advantage which may he derived therefrom; and a municipality may not confer upon any one the right to enter upon such highway, and occupy any portion thereof, without the consent of the owner, when such entry is not for purposes incidental to the effective use by the public of the highway, or for incidents necessary to enjoying and maintaining the right of way, subject only to the regulations provided in the Political and Civil Codes. Id.—Proper Control op Highways—Franchises under County Government Act—Lighting at Night.—The power given to the board of supervisors “to grant franchises for all lawful purposes, upon such terms and conditions as in their judgment may be necessary and proper and in such manner as to present the least possible obstruction and inconvenience to the traveling public,” under the County Government Act of 1-897, has in view such franchises as will aid the easement, and promote the public comfort and convenience in its use. In a proper case, it may include the lighting of public highways at night, without imposing any additional servitude of which the abutting owner may complain. Id.—Franchise pob Sprinkling Highway..—It is held, that it may be conceded, without so deciding, that a franchise to an electric light company to erect its system over a highway for the purposes of furnishing power at a pumping plant erected thereon, for water to be used in sprinkling a highway, may he justified for the same reason that authorizes the franchise for lighting the highway. Id.—General Franchise for Poles and Wires fob Electric Current— Power, Light, and other Hses for Customers.-—The board of supervisors may justify the use of the easement for any useful purpose which does not trespass upon the rights of the owner of the soil, but it cannot grant a general franchise to erect poles and wires over all the roads of the county for the purpose of conducting and transmitting electric current for power, light, and other necessary and useful purposes, thereby invading the property rights of the owner of the soil by digging holes thereon and erecting poles, for the furnishing of its own customers with such power, light and other uses. Id.—Invalid Entry upon Private Soil—Subsequent Contract with County not a Justification.—Where there was an invalid entry by the electric company with its poles and wires on private soil, a subsequent contract with the county to purchase power from it, did . not validate its occupancy of such soil. Id.—General Franchise Protecting use of Easement—Subordinate to Rights of Owner of Fee..—The general franchise can only protect the grantee thereof in the use of the easement; but it must be taken in subordination to the paramount rights of the one who owns the fee, and cannot warrant any invasion of his rights without his consent, or without compensation. Id.—Remedy of Property-owner — Ejectment — General Rule—Exceptions.—While it is a general rule that one may maintain ejectment against either an individual or corporation, who has without right entered upon his land, this rule is subject to some exceptions. Id.—Permitted Entry by Public Service Corporation—Erection of Works—Ejectment not Allowed—Damages.—When a public service corporation, though it made its original entry upon an owner’s land without right, has been permitted to enter thereon and construct the works for which such land was appropriated, and such owner has failed to bring any action, until public interests by reason of such construction has intervened, the right of such owner to maintain ejectment against such public service corporation is denied, and he will be remitted solely to his action for damages as the measure of his compensation. Id..—Basis of Exception—Public Policy.—The exception which forms the rule as to public service corporations, is not based upon any consideration of the rights pertaining to the public service corporation itself, nor solely upon the doctrine of estoppel of the owner, but is based mainly on the great principle of public policy under which the rights of the citizen may be abridged in the interest of the public welfare. Id.—Condition of Compensation under Constitution—Waiver of Personal Right.—Although the constitution provides that private property may not be taken for public use, unless compensation is first paid to the owner, yet this condition is for the sole benefit of the owner of the land, and like any other personal right, may be insisted on by him or waived, at Ms pleasure. Id.—Rule of Public Policy Applied.—The rule of public policy is applied in a case such as this, when the plaintiff has stood by without asserting a right which he might have invoked, until the corporation charged with a service, public in its nature, has completed its electric line over Ms land, and is actually engaged in discharging an advantageous and important public duty, under which circumstances, public policy requires that the remedy of ejectment should be domed to the plaintiff, to the destruction of the public rights which have intervened. Id.—Right to Compensation not Lost.—The mere waiver' of the right to compensation, as a condition precedent to the entry, does not deprive the owner of Ms right thereto, but merely deprives Mm of his right to maintain ejectment. The compensation is all that he could have required to be first paid, before Ms land was taken for public use; and he may still recover the same.
160 Cal. 713Asiatic Club v. Biggy (1911)
APPEAL from an order of the Superior Court of the City and County of San Francisco refusing to grant-an injunction pendente lite. J. M. Seawell, Judge. The facts are stated in the opinion of the court.
160 Cal. 716People v. Latimer (1911)
PETITION for Writ of Review to annul the action of the Superior Court of Napa County. R. H. Latimer, Judge of Contra Costa County, presiding. The facts are stated in the opinion of the court.
160 Cal. 725Rosenholz v. Rosenholz (1911)
PETITION for Writ of Restitution of real property by Appellant, pending appeal from a judgment of the Superior Court of the City and County of San Francisco. The facts are stated in the opinion of the court.
160 Cal. 727Keesey v. Keesey (1911)
Divorce—Interlocutory Decree for Desertion of Husband by Wife —Appeal—Decree against Evidence.—It is held, on this appeal by the wife from an interlocutory decree of divorce in favor of tha husband for desertion by the wife, that in view of the evidence, tha record shows no conflict, but that the evidence appears to be all ona way and to show that, if there was any desertion at all, it could, both in fact and in law, be more reasonably asserted to be the desertion of the wife by the husband, and that it fails to show any willful desertion of the husband by the wife. Id.—Nature of Willful Desertion-—Separation by Consent not Desertion..—Willful desertion is the voluntary separation of one of the married parties from the other with intent to desert, and is manifested by the refusal of either party to dwell in the same house with the other party when there is no just cause for such refusal. Separation by consent, with or without the understanding that one of the parties will apply for a divorce, is not desertion. Id.—Declaration of Wife not Establishing Desertion.—A declaration by the wife, made in temporary anger, to the effect that she would not live with her husband, proves no desertion, where within one month thereafter the husband and wife occupied the same house, in which she prepared the meals and they ate together, and she waited upon him in illness, although they occupied separate rooms. Id.—Declaration While Living Together Immaterial.—A declaration by the wife while she and her husband were occupying the same house that she would not live with him again, amounts to nothing, as it did not accord with the fact of what she was then actually doing. Id.—Departure of Husband—Removal of Furniture to Ranch-Consent of Parties—Divorce—Collusion.—That the husband departed from the house occupied by them, and removed the most of the furniture to his ranch, and told her that she was not to go with him, and that in a year he would get a divorce from her, and that she agreed to it, establishes no desertion by her, but it establishes the separation of the parties by consent, which cannot constitute desertion, and also establishes collusion, which would preclude the granting of a divorce to either party.
160 Cal. 733Shaw v. Shaw (1911)
APPEAL from an order of the Superior Court of Humboldt County denying a new trial. Clifton II. Connick, Judge. The facts are stated in the opinion of the court.
160 Cal. 741Estate of Yoell (1911)
APPEAL from an order of the Superior Court of the City and County of San Francisco directing payment of costs of contestants of a will out of funds of an estate or the funds of a special administratrix. Thos. F. Graham, Judge. The facts are stated in the opinion of the court.
160 Cal. 743Bemis v. Cookson (1911)
APPEAL from a judgment of the Superior Court of the City and County of San Francisco. James M. Seawell, Judge. The facts are stated in the opinion of the court.
160 Cal. 749Condon v. Donohue (1911)
Appeal—Order after Judgment—Denial of Motion for Different Judgment—Review Rendered Immaterial.—An order made after judgment, denying defendant’s motion under section 663 of the Code of Civil Procedure, to vacate the judgment, cancel the conclusions of law, and to enter a judgment in favor of the defendant, is appealable, as a special order made after final judgment. But, it is held that, as there is an appeal from the judgment, which raises the same questions as those involved in such appeal, it is not material to pass upon the appeal from such special order. Building Contract—Failure to Record Written Modification—Invalidity Between Parties—Recovery Forbidden.—Though an original building contract was recorded, the failure to record a subsequent written modification thereof reducing the contract price, renders the contract absolutely void between the parties, under section 1183 of the Code of Civil Procedure, as it stood at the time of this controversy, and no recovery could be had thereon by either party thereto. Id..—Part Payment of Contractor under Modified Contract—Abandonment—Action for Reasonable Value—Cross-Complaint— Proper Judgment.—Where the owner made part payment under the modified contract to the contractor, who demanded payment under the recorded contract, and when refused abandoned work, and afterward sued for the reasonable value of the work done, in which action the owner by cross-complaint sought to recover damages for breach of the contract, of the amount required to complete it, under the specifications, it is held that a judgment denying such relief to the ' defendant, was properly rendered. Id.—Cross-Complaint Based on Void Contract.—The defendant’s eross-eomplaint for damages was based on the alleged contract, which was void for want of record, and under which the statute expressly forbids Mm any recovery against the contractor. Id.—Modified Contract Full Measure of Relief to Contractor.— The modified contract was the full measure of relief due to the contractor in an action for the reasonable value of his services; and as he had been paid in full for that portion of the modified contract price which he had earned when he abandoned the work, he was entitled to no other measure or test of his recovery.
160 Cal. 756Parkinson v. Johnson (1911)
Constitutional Law—Bill Vetoed by Governor—Date ot Beturn to Legislature—Entry in Journal.—There is no provision either constitutional or statutory requiring any record to be kept in the office of the governor of the state respecting bills returned by him to the legislature with his veto thereof, or requiring any record to be made of the date of the return of such bills; nor is there any provision which requires any officer of either house of the legislature to make any notation or entry upon a bill returned by the governor as to the date or time when it was returned to the house with his objections thereto, or requiring any entry on the journals of either house respecting the return save what is required by section 16 of article IV of the constitution. Id.—Manner in Which a Bill Becomes a Law.—There are three ways in which a bill can become a law—by the signature of the governor after its passage by the legislature; by the governor retaining a bill without signing it for ten days (Sundays excepted) after its delivery to him and his causing a certificate of the fact to be made on the bill by the secretary of state and the bill deposited with the laws in the office of said secretary; or by the passage of a bill over the veto of the governor. Id.—Conclusive Evidence op Enactment op Statute.-—In all these cases if the act is properly enrolled, authenticated, and deposited in the office of the secretary of state it is conclusive evidence of the legislative will and courts will not look into the journals of the legislature or permit any other evidence to be submitted to determine whether or how a bill passed. Id.—Entries in Journals op Legislature When Conclusive.—Entries in the journals of the houses of the legislature are conclusive as to matters which are actually recited therein, only when such matters are specifically required to be entered in those journals. Id.—Date op Return op Bill—Recital op Reading op Message prom Governor.—A recital in the journal of the assembly, of a particular date, to the effect that “the following messages from the governor were received and read,” followed by a copy of his objections contained in his veto message accompanying a bill, and the date of the message, only shows that the message was read to the assembly on the date of the journal entry, and is not a recital that it was returned by the governor on that date. Id.—Recital op Date op Return not Conclusive—Date op Return Need not be Entered in Journal.—A recital in the journal of the assembly that a bill vetoed by the governor was returned on a particular day is not conclusive as to the date of its return, for the reason that there is no provision of law requiring an entry in the journal of either house of the legislature of the time when a bill with his objections is returned by the governor. There is nothing in section 16 of article IV of the constitution, providing that the governor shall return all bills disapproved by him within ten days (Sundays excepted), after he receives them, which requires that any entry shall be made in the journal respecting the time when a bill is returned by the governor. Id.—Proceeding op Legislature—Return op Bill not a Part op.—The return of a bill by the governor without his approval is not a proceeding of either house of the legislature, within the meaning of section 10 of article IV of the constitution, requiring that each house shall keep a journal of its proceedings. Id.—Evidence of Date of Beturn of Bill.—Where the date on which a bill was returned by the governor with his disapproval is disputed, evidence outside of entries in the journal of the house of the legislature to which it was returned is admissible to establish that fact.
160 Cal. 764Matter of Rogers (1911)
APPLICATION for a Writ of Habeas Corpus directed to the Chief of Police of the Gffy and County of San Francisco. The facts are stated in the opinion of the court.
160 Cal. 766People v. Flores (1911)
Criminal Law—Abduction of Female Child fob Purpose of Prostitution;—Taking away from Parent or Guardian.—Section 267 of the Penal Code, making it a crime to take away any female under the age of eighteen years from her father, mother, guardian, or other person having the legal charge of her person, without their consent, for the purpose of prostitution, has for its object the protection of young girls who, even if not virtuous, were not abandoned or beyond the hope of reform. Id.—Female Taken Must Have Been in Charge of Parent or Guardian.—No conviction can be had under that section, unless the girl, at the time of her alleged abduction, was in the actual charge of her father or mother, or other person described therein. In the present case, the evidence entirely fails to show that the girl in question was taken away from her mother, as charged in the information. Id.—Entering into House of III Fame—Previous Chaste Character of Girl.—In order to sustain a conviction, under section 266 of the Penal Code, of enticing an unmarried female under the age of eighteen years, into a house of ill fame, for the purpose of prostitution, it is necessary that she should have been “of previous chaste character.” Id.—Placing Unchaste and Abandoned Girl in House of III Fame.— It is not a crime to aid in placing in a house of prostitution a female under the age of eighteen years, of unchaste character, and' who has been abandoned, and is not in the legal charge of any one, but is a wanderer upon the town.
160 Cal. 774Grant v. Bannister (1911)
Partnership—Accounting—Quarry Owned by Partners as Tenants in Common.—In an action for an accounting of a partnership in the working of a marble quarry, and for a division of the partnership assets, findings that the parties owned the quarry in question as tenants in common, and not as the property of the partnership, are held supported by the evidence. Id.—Construction op Deed to Partners—Understanding op Partners.—Where doubt exists as to whether a deed conveying land to the individuals constituting a partnership conveyed the interests in common or in partnership, the construction put upon the deed by the parties themselves affords the surest and most certain test of their own understanding, and is controlling as between themselves, although it would not be controlling as to creditors or third parties. This rule is applicable to a deed which in terms conveys to the grantees as tenants in common, but declares that it is made in fulfillment of a partnership agreement. Id.—Construction op Indefinite Deed.—A deed or contract indefinite in terms may be made definite and certain by the practical construction of the parties to it. Id.—Deed to Partners Individually—Tenants in Common.:—A deed of realty to partners individually, if unexplained, vests in them undivided interests as tenants in common. Id.—Property Used por Partnership Purposes—Title Need not be in Partnership.—Property may be used for partnership purposes and not belong to the partnership. It may belong either to a third person, to one of the partners, or to the partners as tenants in common. Id.—Prior Settlement op Partnership Appairs.—The finding that the partnership affairs of which an accounting is asked were adjusted, settled, and the partnership discontinued long prior to the commencement of this action, is held supported by the evidence.
160 Cal. 783Edson & Foulke Co. v. Winsell (1911)
APPEAL from an order of the Superior Court of Siskiyou County refusing a new trial. John F. Ellison, Judge presiding. The facts are stated in the opinion of the court.
160 Cal. 788People v. Ah Sun (1911)
Criminal Law—Evidence op Guilt—Moral Certainty—Speculative Possibility op Innocence.—In a prosecution for murder, the moral certainty which the law exacts before upholding a conviction does not exclude every speculative and fanciful possibility. In the present ease the evidence is reviewed, and it is held that it is only by the indulgence of such a possibility that it can be said that the evidence does not establish the defendant’s guilt. Id.—Information—Immaterial Variance as to Name op Deceased.— Where in an information for murder the name of the deceased is given as Chin Hong, the fact that certain of the witnesses spoke of him as Chin Tong is not a substantial variance. The question of identity was one of fact for the jury.
160 Cal. 792Bouchard v. Abrahamsen (1911)
APPEAL from a judgment of the Superior Court of Humboldt County and from an order refusing a new trial. Clifton H. Connick, Judge. The facts are stated in the opinion of the court.
160 Cal. 800City of Los Angeles v. Lankershim (1911)
APPEAL from a judgment of the Superior Court of Los Angeles County and from an order refusing a new trial. Frank F. Oster, Judge presiding. The facts are stated in the opinion of the court.
160 Cal. 805Matter of Mullally (1911)
Habeas Corpus—Discharge Denied.—Application for a discharge on habeas corpus is denied, and the writ is dismissed, on the authority of In re Ford, ante, p. 334.
160 Cal. 806Matter of Abbott (1911)
Habeas Corpus—Discharge Denied.—Application for a discharge on habeas corpus is denied, and the writ is dismissed, on the authority of In re Ford, ante, p. 334.
160 Cal. 807Matter of Calhoun (1911)
APPLICATION for a Writ of Habeas Corpus directed to the Sheriff of the City and County of San Francisco. The facts are similar to those stated in the opinion in In re Ford, ante, p. 334.
160 Cal. 808Morrissey v. Hammon (1911)
APPEAL from a judgment of the Superior Court’ of Butte County and from an order refusing a new trial. K. S. Mahon, Judge presiding. The facts are similar to those stated in the opinion in Morrissey v. Gray, ante, p. 390.
160 Cal. 808Morrissey v. Hammon (1911)
APPEAL from a judgment of the Superior Court’ of Butte County and from an order refusing a new trial. K. S. Mahon, Judge presiding. The facts are similar to those stated in the opinion in Morrissey v. Gray, ante, p. 390.
160 Cal. 809Cutten v. McCarthy (1911)
APPEALS from judgments of the Superior Court of the City and County of San Francisco. George A Sturtevant, Judge. The facts are similar to those stated in the opinion in Barendt v. McCarthy, ante, p. 680.
160 Cal. 809Cutten v. McCarthy (1911)
160 Cal. 810Los Angeles v. Union Trust Co. (1911)
160 Cal. 810City of Los Angeles v. Union Trust Co. (1911)
Municipal Corporations—Invalid Ordinance.—Judgment and order affirmed on the authority of City of Los Angeles v. Lanlcershim, ante, p. 800.
160 Cal. 810City of Los Angeles v. Union Trust Co. (1911)