22 Cal. App.

Volume 22 — California Appellate Reports

141 opinions

22 Cal. App. 1United Materials Co. v. Loughery (1913)
Mechanics’ Liens—Materials Furnished Subcontractor—Foreclosure—Pleading.—It is not necessary, in an action to enforce a mechanic’s lien for material furnished to a subcontractor in the construction of a building, to allege that anything is owing from the owner to the contractor or from the contractor to the subcontractor. Id.—Obligations Existing Between ' Contractor and Subcontractor. A laborer’s or mechanic’s lien is not affected by obligations which exist between the contractor and the subcontractor. Id.—Evidence of Implied Contract to Pay for Materials.—In this action to foreclose a mechanic’s lien the evidence is sufficient to show that a subcontractor ordered materials from the plaintiff, that they were delivered as ordered, and that their reasonable value was $55.80, and that thereby an implied contract arose, and was pleaded, that the buyer should pay their reasonable market value on demand. Id.—Verification of Claim for Lien.—It is not necessary that the verification of a claim for a mechanic’s lien should state that the amount specified therein is due over and above all just credits and offsets. Id.—Subcontractor or Materialman—Evidence.—In this action to foreclose a mechanic’s lien the evidence establishes that the person to whom the materials were furnished was a subcontractor and not a materialman, and hence that the plaintiff was entitled to file a lien as a materialman. Id.—Conflicting Evidence on Foreclosure—Appeal.—Where the evidence in an action to foreclose a mechanic’s lien is conflicting, the appellate court is not permitted to depart from the findings.
22 Cal. App. 8Jenkins v. Marsh (1913)
APPEAL from a judgment of the Superior Court of the City and County of San- Francisco. J. E. Prewett, Judge presiding. The facts are stated in the opinion of the court.
22 Cal. App. 10People v. Kizer (1913)
Criminal Law—Conspiracy—Persons Joining After Formation.—Any one who, after a conspiracy is formed, knows of its existence and joins therein, becomes as much a party thereto, from that time, as if he had originally conspired. Id.—Circumstantial Evidence.—A conspiracy may be proved by circumstantial evidence. Id.—Sufficiency of Evidence to Sustain Conviction.—In this prosecution for conspiracy to violate a municipal ordinance forbidding public meetings or speeches within certain districts of the city, the verdict of guilty is supported by the evidence, although the defendant’s connection with the offense is established only by circumstantial evidence. Id.—Evidence—Protests and Threats.—In such prosecution protests made against the passage of the ordinance, and threats to violate it in the event of its enactment, made by the defendants, are admissible in 'evidence. Id.—Knowledge of Conspiracy—Evidence to Show.—Knowledge of the conspiracy may be shown by independent evidence, whether affecting both defendants or each separately; the question being, Did both parties have knowledge of the conspiracy actually formed to which they afterward became parties through a violation of the law 9 Id.-—Refusal of Motion to Strike Out Evidence.—The refusal to strike out the testimony of a witness with reference to discussions of plans at meetings to oppose the enactment of the ordinance is not erroneous. There can be no criticism of persons who earnestly and honestly oppose proposed legislation, taking all legitimate steps necessary in their opinion to prevent its enactment. Id.—Appeal—Harmless Error.—The mere fact of error does not make out a prima facie ease for reversal which must be overcome by a clear showing that no injury could have resulted. Id.—Misconduct of District Attorney—Objection—Review on Appeal.—It is essential, in order that misconduct of the district attorney be reviewed, that his acts be called to the attention of the court at the time, that an opportunity may be afforded to correct the abuse, and, if possible, avoid error and mistrial; an appellate court will not entertain an objection of this kind first made therein. Id.—Error not Resulting in Miscarriage of Justice.—Reviewing courts are not permitted, where matters prejudicial in their character appear in the record, such as the misconduct of the district attorney, to reverse the judgment, unless from the entire record it appears that there has been a miscarriage of justice. • Id.—Evidence of Protests and Threats—Cubing Admission.—In a trial for conspiracy to violate a municipal ordinance which forbids public meetings and speaking in certain districts of the city, error, if any, in admitting evidence of protests and threats made by the defendants before the passage of the ordinance, is not cured by the defendants offering evidence explanatory of their acts.
22 Cal. App. 23Hayden v. Superior Court (1913)
PETITION for Writ of Mandate requiring the Superior Court to try a pending cause. The facts are stated in the opinion of the court.
22 Cal. App. 25McCray v. Manning (1913)
The facts are stated in the opinion of the court.
22 Cal. App. 29People v. Kennedy (1913)
Criminal Law—Pishing With Set Line—Information.—Under section 636 of the Penal Code, providing that any person who shall either set or use a set line or fixed contrivance for catching fish shall be guilty of a misdemeanor, an information which charges the defendant with both having set and used a set line, is not insufficient as alleging two offenses. Id.—Charging Accused With One or Several Acts Described by Statute.—Under a statute which describes several acts, the doing of any or all of which shall constitute a crime, a defendant may be charged either with the doing of the single act so described, or by the doing of all of them. Id.—Alleging Place of Commission of Offense—Punctuation.—An information alleging the commission of an offense on a specified day “and before the filing of this information at the county and state aforesaid,” is not insufficient, because of the omission of a comma after the word “information,” in not alleging the place of the commission of the crime.
22 Cal. App. 31Dake Advertising Agency v. Fielding J. Stilson Co. (1913)
The facts are stated in the opinion of the court.
22 Cal. App. 32Francis v. Western Screen Co. (1913)
Corporation—Authority of Manager to Execute Promissory Note. Where a corporation, engaged in a ■ general merchandise business, employs a manager by a resolution of the directors authorizing him “to handle the business and all its details, and do all the business of every nature,” he has authority, the corporation having no funds on hand for the purpose, to execute a promissory note in settlement of an account due for goods purchased. Id.—Action on Note—Corporate Capacity—Estoppel to Deny.—In an action on the note by the assignee of the payee corporation, the maker cannot question the corporate capacity of the payee. Id.—Corporate Capacity—Inconsistent Findings.—If in such action the complaint alleges that the defendant is a corporation, and the answer admits the fact to be as alleged, findings that the allegations of the complaint are true and that the allegations and denials of the answer are untrue, should, insofar as inconsistent, be disregarded. Id.—.Pleading—Amendment to Show Demand.—The court may, on a case coming to trial, allow an amendment of the complaint so as to allege demand of payment of the note sued on.
22 Cal. App. 35Lytle v. Allison (1913)
GrUABANTY OF PAYMENT—PABOL EVIDENCE TO EXPLAIN.—In an action on a guaranty of payment to P of any and all amounts that may be owing to him by W, including amounts now due and hereafter contracted, “to cover shipment 2 Bansome mixers complete to the Mexican Petroleum Co., Ebano, Mexico,” the admission of parol evidence to show that nothing was guaranteed except payment for the mixer is erroneous.
22 Cal. App. 38Lewis v. Brown (1913)
The facts are stated in the opinion of the court.
22 Cal. App. 45People v. Green (1913)
Criminal Law—False Pretenses—Time to Which Representations Refer.—To constitute a false pretense, the misrepresentation must be of an existing or past fact; it cannot relate to the future, or "be a mere promise to pay. This rule is here applied where representations were made by the accused to a poultry association that eggs supplied by it were to be “processed” and stored, whereas they were sold each day as received. Id.—Promise to Obtain Bond to Protect Customers.—A promise in such case by the accused to furnish a bond to protect the poultry-men against loss, followed by negotiations with a surety company to obtain the bond, relates to an event to happen in the future, and will not sustain a charge of false pretenses. Id.—Agency—False Pretenses by or to Agent.—While false pretenses may be made to an agent of the person defrauded, yet, when made by an agent, they must be directly authorized or consented to in order to hold the principal, for authority to do a criminal act will not be presumed. Id.-—Criminal Liability op Principal for Acts of Agent.—The civil doctrine that a principal is bound by the acts of his agent within the scope of the agent’s authority has no application to criminal law. If a principal is liable at all criminally for the acts of another, such liability must be founded upon authorized acts. Id.—Sight Draft—Obtaining Goods by Drawing.—A sight draft drawn by a person on himself, in payment of goods received, though carrying the implied representation of ability to pay the sum therein named on presentation, is a representation as to future ability and will not sustain a charge of making false pretenses.
22 Cal. App. 54People v. Scott (1913)
Criminal Law—Selling Land Twice—Requisites of Offense.—One of the essential elements of the crime of selling land twice is an effectual first sale. A necessary circumstance contemplated by the statute is, that by reason of the second sale the first purchaser may be deprived of some interest that he acquired by virtue of the conveyance to him. Id.—Delivery of Instrument—Presumption from Possession.—The presumption of delivery, which follows from the possession of an instrument, cannot be indulged in opposition to the presumption of innocence, where a material element of a serious criminal charge, such as selling land twice, is involved. Id.—Evidence—Declarations of Conspirator.—In a prosecution for such offense, the declaration of the defendant’s wife that the alleged first purchasers had better look out for “their property is in my name,” and if my husband should die, they could not get it “unless I chose to give it to them,” is not admissible on the theory that it relates to a conspiracy between the husband and wife. Id.—Evidence—Complaint in Action for Divorce.—It is error, in such prosecution, to admit in evidence the complaint in an action by the wife of the defendant brought against him for maintenance, which complaint alleges cruelty and gross immorality on his part. Id.—Instructions Ignoring Essential of Offense.—It is error to give instructions which ignore the fact that the statute, making it a crime to sell land twice, presupposes that the party charged with the fraud must have some title, legal or equitable, which he can and does sell. This is one of the necessary facts to be established before a conviction is justified. Id.—Question of Ownership and of Pacts Constituting Title.—Any question of law as to- what facts must be shown to constitute title is a subject for the cognizance of the court and for specific directions to the jury, but the ultimate fact of ownership or title must be determined by the jury as one of the elements that make up the crime.
22 Cal. App. 63Altpeter v. Postal Telegraph-Cable Co. (1913)
Appeal—Party Aggrieved—Corporation Sued by Mistake.—When it is discovered at the outset of a trial that a mistake has been made in the identity of the corporation against which the cause of action exists, and the court then makes an order allowing an amendment of the complaint substituting the proper corporation as defendant, the original corporation defendant ceases to be interested in the action, and is not a “party aggrieved” by the judgment therein, and its appeal will be dismissed.
22 Cal. App. 66Niles State Bank v. Jennings (1913)
Corporation—Mortgage Debt—Liability op Stockholders.—The liability of a stockholder for a debt of the corporation secured by ' mortgage is original and primary, and therefore is not limited to the deficiency arising upon foreclosure.
22 Cal. App. 68Kelley v. Hampton (1913)
Assignment fob Collection—Action by Assignee—Findings.—In an action on a claim for goods sold and delivered, findings that the claim was assigned to the plaintiff, and that the assignment was for collection only, will support a judgment for the plaintiff. Id.—Effect of Assignment—Passing Title.-—An assignment for collection, without any consideration being paid by the assignee, vests the legal title in the assignee, which is sufficient to enable him to recover, though the assignor retains an equitable interest in the thing assigned.
22 Cal. App. 69People v. California Safe Deposit & Trust Co. (1913)
Banks and Banking—Trust Funds—Rights of Beneficiary—Securities Deposited With State Treasurer.—The deposit of money in the savings department of a deposit and trust company, by an executrix in accordance with the terms of the will and the decree of distribution, to be held for a minor until his majority, when it is to be paid over to him with the accumulated interest, creates a trust protected by the securities required by law (Stats. 1891, p. 490) to be deposited with the state treasurer by such corporation for the benefit of its creditors. Id.—Payment of Interest—Whether Inconsistent With Trust.— The payment of interest directly by the corporation for the use of the money does not militate against the theory that the money was held in a trust capacity under the statute.
22 Cal. App. 75Loyalton Electric Light Co. v. California Pine Box & Lumber Co. (1913)
The facts are stated in the opinion of the court.
22 Cal. App. 78Berthiaume v. John Doe (1913)
Reward—Right op Finder op Lost Property.—Sections 1865 and 1867 of the Civil Code provide, in substance, that when the finder of a thing takes possession- of it he must, within a reasonable time, inform the owner thereof and make restitution to him upon demand; and that upon so doing is entitled to a reasonable charge for saving and caring for the property, and to a reasonable reward for keeping it. These provisions, however, are independent of any offer of reward by the loser and acceptance of such offer by the finder. Id.—Express Promise op Reward—Eppect as Contract.—If the loser of property makes an express promise of a reward, either to a particular person or in general terms to any one who will return the property to him, and in consequence of such offer the property is returned to him, there is thus constituted a valid and binding contract. 3b.=—Consideration por Contract.—Such contract is not lacking in con sideration; the return of the property being a sufficient consideration to support the promise. Id.—Revocation op Oppbr.-—The offer of a reward for the return of lost property may be revoked before it is acted upon. Id.—Rejection op Opper.—A requested modification of an offer of reward does not constitute a rejection of it. Id.—Replevin por Return op Lost Property—Payment op Rewar-d.— In this action of claim and delivery for the return of lost property, wherein the defendant in his cross-complaint demands the payment of a reward for finding the property, the evidence shows that, while the defendant in the negotiations for the return of the property demanded a larger amount than that offered as the reward, the plaintiff at no time withdrew the offer on that account.
22 Cal. App. 81Jones v. Bay Cities Electric Co. (1913)
Rescission—Necessity or Placing in Statu Quo.—Rescission is not allowable where the party demanding it cannot or does not restore the other party to the condition he would have been in but for the contract. Id.—Sale or Automobile Business—Rescission in Toto.—Where one purchases a garage business and, as part of the same transaction, an automobile agency, he cannot, after having been in possession of the property and business for nine months, rescind the contract as to the agency and recover the money paid therefor, without returning the garage business.
22 Cal. App. 91Citizens' Bank v. Stewart (1913)
Promissory Note—Purchase by Bank—Bona Pide Holder—Burden of Proof.—In an action on a note purchased or discounted by thb plaintiff bank, before maturity and in the usual course of business, the burden is on the defendant to show bad faith in the purchase, want of consideration, or any defense that might have been urged by the maker against the payee. Id.—Consideration Paid by Purchaser as Affecting Title.—It is not incumbent upon such a purchaser to show that it paid full value for the note. The amount paid, -rarely, if ever, ought of itself to impeach the purchaser’s title, as a matter of law, although inadequacy is always a fact to be considered by the jury as evidence of bad faith, and may, with suspicious circumstances, warrant a finding of mala fides. Id.—Notice of Equities-—Presumption.—When it is shown that an indorsee has purchased before maturity a note regular upon its face, to impute to him notice of the equities of the maker is equivalent' to the charge that he would be guilty of wrong-doing, that he would be a voluntary participant in the fruits of a fraudulent transaction. It must be assumed, rather, that he was free from moral obliquity, and influenced by motives of fair and honorable conduct. Id.—Evidence of Notice of Equity—Statement of President of Bank.—The statement of the president of a bank that the bank, in purchasing or discounting a note, had no notice of any infirmity, is sufficient evidence to establish want of notice.
22 Cal. App. 96Meyer v. Buckley (1913)
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 H. Smith, Judge presiding. The facts are stated in the opinion of the court.
22 Cal. App. 99Needels v. Coffee (1913)
Vendor and Vendee—Agreement to Repurchase—Tender op Re-conveyance.—Where a vendee of real estate seeks to recover the amount paid, under an agreement entitling him to a return of the purchase money "within one year if he becomes dissatisfied, his tender of the deed of conveyance and the certificate of title received by him is insufficient as an offer of reconveyance. Appeal—Record—Material Fact not Found by Trial Court.—In case of an appeal upon the judgment-roll, the appellate court cannot incorporate within the findings a material fact not found by the trial court, although the failure to find was the result of carelessness or indifference.
22 Cal. App. 101Taylor v. Darling (1913)
Judgment fob Costs — Res Judicata — Action Against Mabbied Woman—Nonjoindeb of Husband.—A judgment for costs, entered in favor of a married woman who is made a defendant without her husband being joined as a party, she not living separate and apart from Mm, is not based on the merits and cannot constitute a bar to another action.
22 Cal. App. 103Lund v. Ganahl (1913)
The facts are stated in the opinion of the court.
22 Cal. App. 108Boyd v. Big Three Ranch Co. (1913)
Broker—Compensation Dependent upon Contingencies—Acts of Principal.—Although a broker is entitled to his commissions when he has produced a purchaser upon the terms stated in the contract within the time limited, he may so contract as to make his compensation depend upon contingencies which his own efforts cannot control, even though such contingencies relate to acts of Ms principal. Statute of Frauds—Consent Manifested by Acceptance of Benefits.—The rule that a voluntary acceptance of the benefits of a transaction is equivalent to a consent to all the obligations arising from it refers to contracts not required by statute to be in writing. Id.—Parol Modification of Written Contracts.—While written contracts, which would have been lawful if unwritten, may be modified subsequently by parol, this cannot be done where the law requires the agreement to be in writing.
22 Cal. App. 111Davis v. National Lumber Co. (1913)
The facts are stated in the opinion of the court.
22 Cal. App. 114Roper v. Gould (1913)
Promissory Note—Indorsement—Who Entitled to Notice of Dishonor.—Where an indorsement of a promissory note is in this form: “Eor value received I hereby sell, transfer and assign all my right, title and interest in the within note to R,” dated and followed by the signature of the indorser, he is entitled to notice of dishonor. Id.—Presentment and Demand—Whether Bankruptcy Excuses.— An adjudication in bankruptcy of the maker of a promissory note, whether known or unknown to an indorser, will not excuse the formality of presentment and demand. Id.—Notice of Dishonor—Waiver not Shown.—A letter from the indorser of a promissory note to the holder, not written within ten days before the maturity of the note, stating that the indorser has been advised by the maker that the maker is in bankruptcy but expects to handle the note on the partial payment plan, and that “he and I together will probably be able to take care of you some way,” does not amount to a waiver of notice of dishonor.
22 Cal. App. 117Matter of Application of Anixter (1913)
Intoxicating Liquors—Ordinance Forbidding Solicitation of Orders for Liquor.—An ordinance of a town forbidding the soliciting or taking of orders for the delivery of intoxicating liquors does not conflict with the “Wyllie Local Option Law” (Stats. 1911, p. 599). Id.—Wyllie Local Option Law—Purpose and Effect.—While the Wyllie Local Option Law constitutes a general law, in that it applies to the whole state, it does not directly, or ipso facto, operate to prohibit or restrict the sale by retail of such liquors in the state, nor , to interfere with the right, expressly granted to them by the constitution, of local legislative boards to regulate or prohibit such sale of such liquors "within the sphere of their respective jurisdictions, until the provisions of such general law have been invoked and put into practical operation by the electors themselves within such jurisdictions. Id.—Power of Town to Regulate or Suppress Liquor Traffic.—A town which has not invoked the provisions of the Wyllie law has. plenary power to regulate or suppress, within its limits, the retail traffic in alcoholic liquors, and to adopt such measures as will effectually attain either en°d. Id.—Power of State or Municipalities Over Liquor Traffic.—There is absolutely no restriction upon the right of a state, in the exercise of its powers of police, to deal with the business of selling intoxicating liquors by retail in any manner that it deems fit or proper. A state, or its municipalities, may prohibit the traffic in such liquors altogether, or, permitting the traffic to be carried on, may impose such conditions upon its existence as it pleases. Id.—Ordinance Forbidding Solicitation of Orders for Liquor.—A town ordinance prohibiting the soliciting or taking of orders for the delivery of intoxicating liquors is not invalid because there is no other ordinance directly and expressly forbidding the carrying on of the liquor traffic within the town. Id.—Orders for Delivery of Liquor Outside of Town.—Such ordinance is not unreasonable because prohibiting the taking of orders or the making of agreements within the town for deliveries of liquors without its limits. Id.—Ordinance Invalid in Part—Rejection of Invalid Portion.—A portion of the ordinance, invalid because it forbids the taking of orders for “liquor of any kind whatever,” may be disregarded under the rule that when the part of a law or ordinance which is invalid is distinctly separable from the remainder, the latter may stand and the former be rejected. Id.—Interstate Commerce-—Power of State to Regulate Liquor Traffic.—A state may, in the exercise of its police powers, and without offending the commerce clause of the federal constitution, regulate or control the traffic in intoxicating liquors, within its own borders, to the extent either of regulating or altogether preventing the business of soliciting proposals in such state for the purchase of such liquors, which proposals are to be consummated outside of the state, and the liquors to which such proposals relate are also situated outside the state. Id.—Restraint of Trade—Ordinance Forbidding Liquor Traffic.—A town ordinance prohibiting the taking of orders or the making of agreements for the sale and delivery of intoxicating liquors is not invalid as in restraint of trade.
22 Cal. App. 127Gise v. Myers (1913)
APPEAL from an order of the Superior Court of Los Angeles County granting a peremptory Writ of Mandate directed to the auditor of the city of Los Angeles. Charles Monroe, Judge. The facts are stated in the opinion of the court. John W. Shenk, City Attorney, and C. H. Tribit, Jr., Deputy City Attorney, for Appellant.
22 Cal. App. 129Thompson v. McKenna (1913)
The facts are stated in the opinion of the court.
22 Cal. App. 135Brown v. Brashear (1913)
Negligence — Operation op Automobile — Collision With Person After He has Alighted from Street-car.—In this action against the owner of an automobile by a person who was struck by it after having alighted from a street-ear, the question of the defendant’s negligence and the plaintiff’s contributory negligence was, under the evidence, for the jury. Id.—Care in Operating Automobile—Instructions.—If the evidence introduced by the defendant shows that the plaintiff jumped from a moving street-ear and ran in front of defendant’s automobile following the car, it was error to refuse an instruction that "the defendant was not called upon to drive his car so as to protect passengers on the street-car who might see fit to jump from the car while it was in motion, unless and until he had warning that the passenger did intend to jump from the street-car while in motion.” Id.—Use of Streets—Relative Duties of Pedestrians and Drivers of Vehicles.—Persons alighting upon or walking across public streets where vehicles are constantly traveling to and fro must use ordinary care to see that they do not collide with or are run over by vehicles, and in turn it is the duty of the drivers of vehicles to exercise ordinary care to prevent any injury being caused to such foot passengers.
22 Cal. App. 139Seccombe v. Roe (1913)
APPEAL from an order of the Superior Court of Los Angeles County discharging an attachment. Gavin W. Craig, Judge. The facts are stated in the opinion of the court. ■
22 Cal. App. 144Skelton v. Schacht Motor Car Co. (1913)
The facts are stated in the opinion of the court.
22 Cal. App. 147Carroll v. Bostwick (1913)
The facts are stated in the opinion of the court.
22 Cal. App. 149Staley v. O'Day (1913)
APPEAL from an order of the Superior Court of the City and County of San Francisco vacating a default judgment. Frank J. Murasky, Judge. The facts are stated in the opinion of the court. James A. Bacigalupi, and Harry G. McKannay, for Appellant.
22 Cal. App. 153Ralphs v. Burns (1913)
Attachment—Amendment or Complaint—Whether Allowable.— While it is true that where a sufficient affidavit is filed in an action upon an express or implied contract for the direct payment of money, even though the complaint be insufficient to state a cause of action, a subsequent amendment of the complaint not changing the character of the action may be allowed without affecting the writ of attachment previously issued, yet the writ must state the amount of the demand in conformity with the complaint. Id.—Variance—Writ Stating Amount in Excess of Demand in Complaint.—An attachment should be dissolved where the affidavit and the writ state an amount far in excess of the amount demanded in the complaint. Id.—Attachment not Allowable in Suit to Cancel Instrument.— The action in this case for the cancellation of a deed and an assignment of a mortgage, alleged to have been procured by fraud, is not an action which comes under section 537 of the. Code of Civil Procedure, authorizing attachments.
22 Cal. App. 156Moore v. Superior Court (1913)
Juvenile Court—Defective Petition—Effect of Piling Subsequent Petition.—The filing of a petition for the adjudication, of the dependency of minor children, which is defective and does not give the court jurisdiction of the cause, does not deprive the court of authority to proceed upon a proper petition subsequently filed, although the latter is designated "an amended or supplemental petition,” and it contains a recital that it is made by permission of the court, and it is indorsed and filed under the same number as the first so-ealled petition. Id.—Pleading—Name as Fixing Character of Pleading.—It is not what it is called, but what it is, that fixes the character of a pleading. Id.—Disqualification of Judge—Writ of Prohibition.—Before prohibition will issue on the ground that a juvenile court judge is disqualified by prejudice, it must not only appear that objection was made in the lower court and supported by affidavit, but it must also affirmatively appear that no counter affidavit was filed presenting an issue of fact as to the qualification of the judge.
22 Cal. App. 162Hupp v. Superior Court (1913)
PETITION for Certiorari to review a judgment for contempt.
22 Cal. App. 167Hammond v. Ocean Shore Development Co. (1913)
APPEAL from an order of the Superior Court of Mono County granting a motion for change of venue. J. D. Murphey, Judge. The facts are stated in the opinion of the court.
22 Cal. App. 174Temescal Water Co. v. Niemann (1913)
Taxation—Part of Water System Within Municipality—Where Taxable.—A municipal corporation may assess a part of a water system, that is, canals, pipe-lines, and rights of way, located within the city limits, although the system is appurtenant to land without the municipality. Id.—Assessment of Property by City and County.—A municipality has the right to assess all real property found within its limits for the purpose of maintaining the municipal revenues, and the county taxing officials have the right to levy upon the same property for county purposes.
22 Cal. App. 179Souza v. Joseph (1913)
APPEAL from a judgment of the Superior Court of Siskiyou County and from an order refusing a new trial. Jas. F. Lodge, Judge. The facts are stated in the opinion of the court. James F. Farraher, and James R. Tapscott, for Appellant.
22 Cal. App. 191Van Damme v. McGilvray Stone Co. (1913)
Trial—Special Interrogatory—Refusal of Jury to Answer— Waiver—New Trial.—Where a jury, in returning a general veirdict for thfe plaintiff, expressly declines to answer a special interrogatory which has been submitted, and the court offers to send the jury back if counsel for the defendant desires, but he replies, “the record shows that they have declined to find upon it,” whereupon the jury is discharged, the right of the defendant to have the interrogatory answered is waived, and he is not entitled to a new trial because of the jury’s refusal to find.
22 Cal. App. 197Haines v. Wooster (1913)
The facts are stated in the opinion of the court.
22 Cal. App. 199Baxter v. Riverside Portland Cement Co. (1913)
Master and Servant—Action by Employee for Personal Injuries.— Amendment of Answer.—In an action by an employee against his employer to recover for personal injuries, the refusal of leave to amend the answer so as to 'allege assumption of risk, is not ground for reversal, when the request is made at the trial, either before the jury is impaneled or after the evidence is submitted, three months after the filing of the answer, and no reason is assigned for omitting to set up such defense, and evidence is admitted and the jury is instructed on the issue of assumption of risk. Id.—Amendment of Pleading—Necessity of Showing.—Although courts are liberal in allowing amendments to pleadings, they should require that some showing be made to justify the exercise of their discretionary power. Id.—Safe Place for Switchman to Work—Collision Between Engine and Bridge.—In this action for personal injuries received by the plaintiff while a switchman in the defendant’s employ, from ■being thrown from the footboard of an engine on which he was riding, by the board striking a cement bridge, the evidence establishes that the defendant not only provided an unsafe place for work, but that the plaintiff was justified in continuing his employment and cannot be said to have understood or appreciated any danger as incident thereto. Id.—Railway Ties—Cross-examination as to Condition.—In an action by an employee for injuries occasioned by defective ties in a track, it is proper cross-examination, where a witness for the defense has testified that the ties were sound, to ask him if certain ties were not the ones under the track when the accident happened.
22 Cal. App. 205Kneiser v. Belasco-Blackwood Co. (1913)
22 Cal. App. 207Brownlee v. Board of Directors (1913)
The facts are stated in the opinion of the court.
22 Cal. App. 215Dow v. City of Oroville (1913)
Action of Tort—Pleading—Joint and Several Liability of Wrongdoers.—In actions upon tort, where two or more persons have been concerned in the commission of the wrong, the plaintiff may proceed either jointly or severally against such joint tort-feasors, who are both jointly and severally liable, and, although the complaint may allege a joint act of negligence on the part of the joint tortfeasors, it nevertheless states a complete and separate individual liability against each party so sued on account of the single act complained of. Id.—Pleading—Sustaining Demurrer as to One Joint Wrongdoer.—Where a complaint seeks to charge jointly a city and a contractor for leaving a trench open in a public street, as a result of which the plaintiff received personal injuries, whether an order sustaining a demurrer to the complaint as to the city was erroneous is not material in determining the demurrer of .the contractor. Id.—Negligence—Unguarded Excavation in Street.—A contractor is liable for any personal injuries proximately caused by his act in digging and leaving open and unguarded an excavation in a public thoroughfare, whether he made the excavation with authority or not. Id.—Agreement by City to Assume Responsibility for Contractor’s Acts.—Even if the city by its agreement with the contractor expressly assumed sole liability for any damage to third persons resulting from a joint act of negligence of itself and the contractor, while the latter was engaged in the performance of the terms of the contract, such agreement could not deprive a third person of his right to proceed against the contractor, and hold him accountable for the effect of his negligent act. Id.—Necessity of Pleading Agreement.—But if such agreement exonerated the contractor, it would be necessary for him to plead it as a special defense. Id.~Demurrbr—Uncertainty as to Matter Within Knowledge of Defendant.—Where it appears, as it does here, that the matter in respect to which the complaint is uncertain or ambiguous, was peculiarly within the knowledge of the defendant, such uncertainty or ambiguity is not a ground of demurrer of which the defendant can avail himself. Id.—Knowledge of Unguarded Excavation—Evidence-^-Review on Appeal.—In this action to recover for personal injuries sustained by the plaintiff from falling into an unguarded trench in a public street, evidence that, although he knew that the streets in the city were torn up or excavated, he did not know of the excavation into which he fell, is not improbable per se. The probative value of such testimony is for the jury, and their solution will not be reviewed on appeal. Id.—Evidence—Declarations of Plaintiff as to Suffering.—Declarations of the plaintiff, some three or four weeks after the accident, that he was then still suffering physical pain from the effects of his injuries, are admissible. It is only where complaints by the injured person of suffering pain flowing from his injuries refer to a past condition that testimony of such complaints is inadmissible. Id.—Opinion Evidence—Testimony of Physician as to Personal Injuries.—Testimony of the physician who attended the plaintiff for his injuries that they could have been produced by the manner of the accident as described by the plaintiff, and that the atrophied condition of the latter’s shoulder was probably due to the fact' that the injury thereto caused the plaintiff to favor that member, is admissible. Id.—Evidence — Testimony as to Compensation of Employee.— Where the plaintiff has been employed since the accident as night clerk in a hotel, a question “What are the wages of a night clerk in that hotel?” if improper in calling for a statement generally as to the compensation of a night clerk and in not being confined to the compensation of the plaintiff, is not prejudicial. Id.—Unguarded Trench in Street—Negligence of City as Absolving Contractor.—The negligence of the city in not having the street light burning at the time the plaintiff fell into the trench does not absolve the contractor from liability for his negligence in not guarding the trench properly. Id.—Eight of Contractor to Leave Trench Unguarded—Instruction.—An instruction is proper that the defendant had no right to dig a trench through the streets of the city and leave it open during the night-time without proper guards to prevent persons from falling into it; and that if he did not take such precautions and a person was injured, he is liable for such injuries. Id.—Instruction Covered by Others.—A requested instruction that is covered by other instructions given to the jury is properly refused. Id.—Instructions as to Statements of Counsel.—Where the jury is instructed that it is their duty “to find a verdict according to the testimony in "the ease,” it -is not necessary to warn them that they are not to take the statements of the counsel on either side as evidence. Id.—Instruction—Cautioning Jury Against Testimony of Plaintiff.—An instruction cautioning the jury against the testimony of the plaintiff in a personal injury ease because of his interest in the event of the trial is properly refused. Id.—Damages for Personal Injuries—Whether Excessive.—Where personal injuries to a man result in the loss of four hundred and fifty dollars, from loss of time and the expense of medical attention, and also result in pain and suffering and permanent impairment of earning capacity, a verdict for one thousand seven hundred and fifty dollars is reasonable. Id.—Physical Pain as Element of Damage.—Physical pain and mental suffering are elements to be considered in determining the measure of recovery for personal injuries.
22 Cal. App. 231Hubbard v. Price (1913)
The facts are stated in the opinion of the court.
22 Cal. App. 233Dabney Oil Co. v. Providence Oil Co. (1913)
Receiver—Grounds for Appointment—Section 564 of the Code of Civil Procedure.—Section 564 of the Code of Civil Procedure provides in what cases the court may appoint a receiver; and, in the absence of facts showing that a case falls within some or more of the provisions of the section, no authority exists for such appointment. Id.—Grounds for Appointment of Receiver—Subdivision 6 of Section 564 of Code of Civil Procedure.—Subdivision 6 of section 564 of the Code of Civil Procedure, providing that a receiver may be appointed in all other cases than those mentioned in the preceding subdivisions where heretofore such practice has prevailed in courts of equity, cannot be invoked in the case presented by a complaint which alleges facts bringing it within one of the preceding subdivisions. Id.—Caution in Appointing Receivers.—The power to appoint a receiver is a delicate one, and should be exercised with caution lest the injury thereby caused be greater than the injury sought to be averted. Id.—Refusal to Appoint Receiver When Other Remedies Adequate. A receiver should not be appointed where the desired result can be obtained by less stringent means calculated to protect the rights of all parties. Id.—Receiver for Oil Lands—Propriety of Appointing.—In an action to recover oil lands and the fund derived from the sale of oil abstracted therefrom, it is an abuse of discretion to appoint a receiver where the sole purpose of the order, besides empowering the receiver to seek the recovery of moneys, profits, and income theretofore derived by the defendants from the operation of the property, was to sequester the net income as therein defined, by requiring the defendants to pay it over to the receiver, when the rights of the parties can be protected, and the purpose in view can be accomplished, by an injunction.
22 Cal. App. 239Dodge v. Northern Electric Ry. Co. (1913)
Cabbies.—Ejection of Passenger Who has Taken Train by Mistake.—In this action by a passenger ejected from an electric train which he had taken by mistake, supposing that it was going to his destination, the evidence is sufficient to sustain a finding that he was removed from the train with unnecessary force by the brakeman and suffered injury as a consequence. Id.—Araron by Passenger—Examination of Witness.—A question addressed to the plaintiff, in his action for injuries from being ejected from a train, for the purpose of eliciting an admission from him that he was not injured, and that the institution of the action was because of the entertainment of ill-will toward the defendant, rather than because of any damage suffered, is proper. Id.—Damages fob Wrongful Expulsion of Passenger.—A passenger induced by a carrier to board the wrong train may recover from the carrier such damages as result directly therefrom. Witness—Sustaining Objection to Question—Harmless Error.— Error in sustaining an objection to a question to a witness is not prejudicial, if thereafter the same question is in effect propounded and its answer allowed. Appeal—Review of Ruling on Demurrer.—A ruling on a demurrer to a pleading, or upon the sufficiency thereof, cannot be reviewed on an appeal from an order denying a new trial, but only upon an appeal from the judgment.
22 Cal. App. 248McClure v. Nye (1913)
APPLICATION for Writ of Mandate directed to State Controller to draw his warrant in favor of petitioners. The facts are stated in the opinion of the court.
22 Cal. App. 256Garner v. Meizel (1913)
The facts are stated in the opinion of the court.
22 Cal. App. 258Black Eagle Oil Co. v. Belcher (1913)
Quieting Title—Evidence—Objection to Deed Because of Alteration—Appeal.—Where the plaintiff in an action to quiet title objects to the defendant introducing a deed in evidence, because of an alteration of the description therein, he should, if he desires the ruling of the trial court to be reviewed on appeal, incorporate in the record evidence of the facts upon which his attack upon the integrity of the deed is based; the mere statement of counsel that an alteration has been made, cannot be deemed by the appellate court sufficient to contradict the deed which, as presented to such court, discloses no alteration. Id.—Description in Deed—Transposition of Letters-—Record as Notice.—The letters “B. M. & S.” in the deed in this case are found to be a transposition of the letters “S. B. & M.,” meaning San Bernardino base and meridian, and the record of the deed . -is sufficient to impart constructive notice. Id.—Deed Absolute as Mortgage—-Burden of Proof—Appeal.—The burden of proving that a deed absolute in form was in fact intended as a mortgage rests upon the party who alleges it; and if there is a substantial conflict of evidence upon the question, the conclusion of the trial court is conclusive. Id.—Bona Fide Purchaser op Land—Unrecorded Deed—Burden op Proof.—When it appears, in the course of an action to quiet title, that the defendant bases his claim to the .property upon a prior unrecorded deed, the burden is cn the plaintiff to show that he paid the purchase money in good faith without notice of such deed. Id.—Payment op Consideration in Good Faith—Recitals in Deed as Evidence.—Recitals contained in the deed as to the consideration paid cannot be accepted as prima fade proof of such payment; they are but declarations of the grantor.
22 Cal. App. 264Bowles v. Hickson (1913)
APPEAL from a judgment of the Superior Court of Los Angeles County and from an order refusing a new trial. Prank G. Pinlayson, Judge. The facts are stated in the opinion of the court.
22 Cal. App. 268Nicoll v. Nicoll (1913)
The facts are stated in the opinion of the court.
22 Cal. App. 271Turney v. Morrissey (1913)
Corporations—Mandamus—Allegation as to Nonexistence of Other Remedy.—Mandamus will not lie where the petitioner has a plain, speedy, and adequate remedy in the ordinary course of law. And an allegation that he has not such a remedy is but a conclusion of law, and does not avail him where the ease is of a character that such a remedy does exist under the law. Id.—License-tax—Forfeiture of Franchise for Failure to Pay— Directors as Trustees.—Upon the forfeiture of the charter of a corporation for failure t'o pay its license-tax or fee, the directors become at once and ipso facto trustees of the corporation and its stockholders, for the purpose of closing up the affairs of the corporation, and, after payment of the debts of the corporation and the expenses of liquidation, to distribute the remaining assets of the corporation among those entitled thereto. Id.—Accounting—Jurisdiction of Equity.—As such trustees they are peculiarly subject to the equity jurisdiction of the court, and for any dereliction of duty may be called to account by the party aggrieved in an ordinary action in equity, wherein their accounts and claims for debts paid, expenses incurred, and compensation for services rendered may be adjudicated, and such a decree entered for the final disposition of the remaining assets of the corporation as under the law and facts of the case may be proper. Id.—Remedy of Stockholders—Mandamus or Accounting in Equity. Not only is such an action a plain, speedy, and adequate remedy for a stockholder who claims that he is entitled to receive all of the assets of the eorpoiation, but it is the most appropriate remedy; and therefore he is not entitled to a writ of mandate.
22 Cal. App. 274Spangenberg v. Nesbitt (1913)
APPEAL from a judgment of the Superior Court of Alameda County and from an order refusing a new trial. T. W. Harris, Judge. The facts are stated in the opinion of the court.
22 Cal. App. 282Born v. Castle (1913)
APPEAL from a judgment of the Superior Court of the City and County of San Francisco and from an order refusing a new trial. J. M. Seawell, Judge. The facts are stated in the opinion of the court.
22 Cal. App. 289Tarpey v. Veith (1913)
APPEAL from a judgment of the Superior Court of Fresno County. Geo. E. Church, Judge. The facts are stated in the opinion of the court.
22 Cal. App. 296Lucas v. Walker (1913)
Negligence—Operation op Unfinished Elevator—Injury to Workman in Shaft.—Where a contractor, in erecting a building in which an elevator company is installing elevators under a subcontract with him, arranges with the elevator company to allow him to run one of the elevators before it is completed and while the work of completion is going on, his employee, in operating the elevator, owes the duty to exercise ordinary care to avoid injuring employees of the elevator company by any positive act; an'd if such operator, knowing that one of such employees is at work at a certain point in the elevator shaft, fails to give him warning of the approach of the ear, and the car strikes him, the contractor is responsible for the resulting injuries. Id.—Employee as Licensee or Invitee.—The employee of the elevator company is, in such case, on the premises as an invitee of the' contractor, and as such is entitled to the observance of ordinary care; he is not merely a licensee. Id.—Duty Toward Licensee.—A licensee under such circumstances is entitled to recover for any injury to himself, in the absence of contributory negligence upon his part, resulting from the active negligence of the licensor, and such licensor is responsible in damages for any overt act of negligence, though the same is neither willful nor wanton. Id.—Contributory Negligence of Workman in Elevator Shaft.— The employee cannot be held guilty of contributory negligence as a matter of law in working in the elevator shaft and relying on the elevator operator to give him warning of the approach of the car. Id.—Warning to Workman in Shaft—Duty and Authority to Give.— • The operator of the elevator, who was an employee of the contractor placed in charge of the elevator by the contractor’s superintendent had authority, under the circumstances, to promise to give the workman warning. Such promise was in the exact line of his duty. A person placed in charge of an elevator to operate it while other workmen, to whom his employer owes the duty of ordinary care, are legitimately engaged in working in the elevator shaft, is authorized to take all proper precautions to avoid injuring such persons, among which is the duty to give a warning before moving the car. Id.—Licensee—Willful and Wanton Negligence—Instructions.— An instruction to the effect that the plaintiff was a mere licensee, and as such could only recover for wanton or willful injury inflicted by the defendant, is erroneous, when the negligence charged and proved without question and beyond all reasonable doubt consisted of active, positive overt acts of negligence, committed by the defendant against the plaintiff, Id.—Conflicting Instructions—When not Ground for New Trial.— The giving of conflicting instructions is not ground for a new trial, where it is plain that the jury did not follow the erroneous instruction, but completely ignored it, and gave a verdict which can be justified only under the instruction which states the correct rule applicable to the case. .Id.—Erroneous Instruction—When not Ground for New Trial.— Where it is plain that the jury disregarded and ignored erroneous instructions given at appellant’s request, no just ground for a new trial exists. Id.—Verdict Contrary to Instructions—When not Reversible Error.—While the jury should conform to the instructions of the court upon matters of law, if it appears to the appellate tribunal ■that an instruction was erroneous, it will not disregard a verdict contrary to such erroneous instruction.
22 Cal. App. 308Newmire v. Schacht Consolidated Auto & Truck Co. (1913)
New Trial and Appeal—Statement op Case—Authentication bt Judge—Specifications ° Following His Signature.—A statement of the case on motion for a new trial is insufficient, if the certificate of the judge is placed before the specifications of errors and the particulars wherein it is alleged that the evidence is insufficient to justify the decision, and no reference is made to them in the authentication or in the body of the statement. Under such circumstances the certificate of the judge has no application to matter which does not precede his signature. . Id.—Correction of Eecord—Failure to Make.—If, as a matter of fact, the unauthentieated matter constitutes a part of the statement, the respondents should, when attack upon such ground is made by the appellants in their brief, ask for a diminution of the record in order to correct the same. If they fail to do so, the appellate court will assume that the record is what it purports to be, and fails to comply with section 659 of the Code of Civil Procedure.
22 Cal. App. 311People v. Meadows (1913)
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 H. Dunne, Judge. The facts are stated in the opinion of the court. Arthur J. Meadows, N. C. Coghlan, Charles W. Hickey, John F. Williams, Arthur Joel, and Francis Dunn, for Appellants.
22 Cal. App. 314Reyntiens v. J. W. Treadwell Realty Co. (1913)
Brokers—Negotiation for Lease—Repudiation by Lessor—Return of Deposit.—Where a prospective lessee pays a certain amount to the agents of the lessor as a deposit to cover the first month’s rent, but the lessor, because of the delay of the lessee in securing satisfactory bondsmen, decides not to make the lease and directs the money to be returned to the lessee, the lessee may recover the amount thereof from the agents as money held for his use and benefit.
22 Cal. App. 318Pinto v. Seely (1913)
Appeal—Prejudice op Trial Judge—Affidavit not in Record.—On an appeal from an order denying a motion for a new trial, an affidavit filed in the court below in support of the motion and showing the judge’s prejudice, cannot be considered on appeal if not included or referred to in the bill of exceptions. Trial—Questions to Witness—Objections—Whether Timely and Sufficient.—Where a question calling for hearsay evidence is answered by the witness before the adverse party has opportunity to object, but immediately after the answer objection is made, accompanied by motion to strike out; and the next question is objected to on the ground that the witness is testifying from hearsay, but the objection is overruled and the testimony is admitted, and motion is then made that the testimony be stricken out, which motion is denied, the objections are timely and adequate. Id.—Motion to Strike Out Evidence—Necessity op Previous Objection.—A motion to strike out evidence is improperly granted, if not supported by a valid or any previous objection. A TTORNEY AND CLIENT—FEES OF ATTORNEY-ACTION BY ADMINISTRATRIX to Recover—Hearsay Evidence.—In an action by an administratrix to recover for legal services rendered by the decedent, who was her husband, her testimony that she knew her husband was attorney for the defendant for several years, that at the time of his death he was attorney for the defendant in a certain action, that he told her that he had a contract whereby he was to have "one-half of what he won,” but that she never saw the contract, and the confidences which her husband imparted to her were her only sources of information, is incompetent and insufficient to sustain a finding that the defendant contracted in writing to pay the husband one-half of what might be recovered in the action in question. [d.—Refusal op Attorney to Prosecute Appeal—Evidence.—In an action to recover on an attorney’s contract to render services for a contingent fee, evidence offered by the defendant that the attomey refused to prosecute an appeal should not be stricken out on the ground that the refusal to prosecute the appeal was made after the recovery of judgment. There is no rule of evidence which excludes the testimony because it relates to a fact occurring subsequently to one of the controlling facts in issue. Id.—Duty of Attorney to Prosecute Appeal at Client’s Request.— Where an attorney has prosecuted a case to judgment, under an agreement for a contingent fee, his refusal to take an appeal from the judgment is not a breach of the contract sufficient to relieve the client from his obligations thereunder. The making of such a contract by the attorney, coupled with the acceptance of a retainer thereunder, does not, as a matter of law, obligate him to prosecute an appeal to the court of last resort. Id.—Contract of Attorney With Client—Construction in Favor of Client.—In construing contracts between attorneys and clients concerning compensation, the general rule is to adopt such a construction as will be most favorable to the interests of the client. But the rule is not so inflexible that it may be invoked to perpetrate a palpable injustice, or that it calls for a construction beyond the express covenants of the parties. Id.—Duty of Attorney to Remain With Case Until Its Final Determination.—In the absence of an express or implied agreement to that effect, there is no unqualified rule of law which requires the services of an attorney, under a contract of employment in a particular piece of litigation, to continue until the final determination of the controversy upon appeal, before the attorney can claim compensation for the services contracted for. Nor does the mere acceptance of a retainer under such a contract necessarily imply a retainer and consequent obligation to carry the controversy to the court of last resort. Id.—Compensation Dependent on Satisfaction of Judgment.—-Under a contract by an attorney to conduct a ease for a retainer and a per. centage of the, amount recovered, his compensation is dependent upon the satisfaction of a judgment recovered therein; and if he recovers a judgment, and refuses to take an appeal therefrom, and other attorneys are substituted, his refusal does not defeat his right to compensation upon the satisfaction of the judgment. Id.—Evidence—Order to Produce Instrument—Effect of Failure to Comply.—Where before the trial the plaintiff makes a demand on the defendant to produce the contract sued on, and at the trial the defendant explains his failure to comply with the order on the ground that the instrument has been lost or destroyed, and produces what he testifies to be an exact copy thereof, which is admitted in evidence over the plaintiff’s objection that it is self-serving and not shown to be a copy of the original, the failure to produce the original for inspection is not-presumptive or any evidence in support of the terms of the contract as alleged in the complaint.
22 Cal. App. 328Fairchild v. Bay Point & Clayton Railroad (1913)
APPEAL from a judgment of the Superior Court of the City and County of San Francisco. George H. Cabaniss, Judge. The facts are stated in the opinion of the court.
22 Cal. App. 331Larson v. Larson (1913)
APPEAL from a judgment of the Superior Court of Alameda County and from an order refusing a new trial. Everett J. Brown, Judge. The facts are stated in the opinion of the court.
22 Cal. App. 334Coolidge v. Austin (1913)
Husband and Wife—Estoppel of Wife to Claim Separate Property —Allegation in Pleading.—The allegation of a married woman, in her complaint for a divorce, that certain personalty is community property, does not estop her from asserting that it is separate property in a subsequent action by her to recover it from one who purchased it from her husband after the commencement of the divorce, the purchaser not having knowledge of the pendency of the divorce proceedings. Id.—Separate Property—Conflicting Evidence.—In such case it is for the trial court to determine which of her conflicting statements is true. Id.—Possession by Husband as Estopping Wife to Claim Property as Separate.—Proof that the wife left the property in the possession of the husband upon separating from him, unaccompanied by other indicia of ownership, does not establish an estoppel against her in favor of the purchaser. Id.—Possession of Property as Creating Estoppel Against Owner.—• While it is true that one who clothes another with apparent title to personal property will be estopped from asserting ownership as against an innocent third party purchaser, yet, in order to create such an estoppel, something more is required than mere possession on the part of the alleged ostensible owner. Id.—Evidence—Rejection by Court of Own Motion.—It is the right of a trial court to reject, of its own motion, evidence which it believes to be immaterial to the issues being tried.
22 Cal. App. 338Glasspoole v. Pacific Lumber Co. (1913)
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. C. M. Wheeler, E. W. Wilson, and Bernard Silverstein, for Appellant.
22 Cal. App. 344Estes v. Ballard (1913)
The facts are stated in the opinión of the court.
22 Cal. App. 354Matter of Application of Goldsworthy (1913)
Juvenile Court Law—Contributing to Delinquency of Minor—Absence of Prior Delinquency.—Under section 26 of the Juvenile Court Law (Stats. 1911, p. 65-8), the crime of contributing to the dependency or to the delinquency of a minor may be committed with or upon a minor who does not, prior to the offense, possess any of the characteristics of dependency or delinquency in the sense of the statute. Id.—Information Charging Delinquency—Necessity of Setting Forth Facts.—An information charging the offense of contributing to the dependency of a minor must set forth the facts which made such minor a dependent, unless the minor has previously been adjudicated 'by the juvenile court a dependent person, in which case it would be sufficient to plead such adjudication. Id.—Sufficiency of Information—Absence of Express Allegation of Dependency.—An information which alleges that the defendant endeavored to induce and persuade the female minor therein named to lead an idle, dissolute, and immoral life by importuning and coercing her to enter a house of prostitution, and that he had sexual relations with her, sufficiently charges the offense, although it does not directly or expressly declare that the minor is a dependent person. Id.—Sufficiency of Information—Testing on Habeas Corpus.—The information is not to be examined so critically on habeas corpus as informations or indictments are scrutinized when their sufficiency is subjected to the test of a demurrer. It is enough, on such collateral attack, that the information attempts to state an offense of a kind of which the superior court, sitting as a juvenile court, has jurisdiction,
22 Cal. App. 361McCowen v. Trumann (1913)
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.
22 Cal. App. 361McCowen v. Trumann (1913)
22 Cal. App. 362People v. Johnson (1913)
Criminal Law—Indictment—Charging Different Offenses.—Under section 954 of the Penal Code as amended in 1905, an indictment or information may charge different offenses, but they must all relate to the same act, transaction, or event. Id.—Conspiracy-—-Section 182 of Penal Code.—To do all of the things enumerated in the different subdivisions of section 182 of the Penal Code, defining criminal conspiracy, amounts to- the same offense only. Id.—Indictment—Joinder of Offenses.—An indictment in two counts which charges conspiracy to falsely accuse a person with drawing a check without funds, and, as part of the same transaction, with conspiracy to obstruct justice by having him arrested while presiding at a criminal trial in which the alleged conspirators were defendants, is not demurrable as charging two offenses. Id.—Overt Act—Necessity of Alleging and Proving.—To sustain a conviction of such criminal conspiracy, it is necessary to allege and prove not only the making of the conspiracy, but the commission of some act to effect the object thereof. Id.—Instructions as to Overt Act—When Erroneous.—An instruction to the effect that the overt act, which thfe prosecution was required to prove in order to make out a ease against the appellant, •was any act which, in the opinion of the jury, might appear to be done in pursuance of the agreement of conspiracy, is erroneous.
22 Cal. App. 367Rockhill v. Parker (1913)
Quieting Title—Verdict op Jury—Review op Instructions.—In an action to quiet title, the verdict of a jury on an issue as to the right to specific performance of a contract is merely advisory to the court, and therefore instructions to the jury will not be reviewed on appeal. Id.—Findings Unsupported bt Evidence—Reversal of Judgment.— If in such action the court finds that a written contract providing for the transfer by the plaintiff to the defendant of one-half of the land in controversy and seventy shares of water stock, upon the defendant making certain improvements on the land, had been canceled, and then finds, without any evidence touching the matter, that by an oral contract the plaintiff agreed at the same time to transfer the water stock, the judgment must be reversed because such finding is without support. Id.—Statute of Frauds—Estoppel to Plead.—If the plaintiff allowed the defendant to expend money in making improvements in setting out orange trees on the land, relying on an oral agreement by the plaintiff to convey him a part of the land with certain water stock, the plaintiff will be estopped to set up the statute of frauds as a defense to such contract.
22 Cal. App. 367Morris v. Occidental Life Insurance (1913)
Appeal—Withdrawal by Attorney—Failure to File Briefs.—Where the attorney for the appellant, after due notice and for good cause, withdraws from the case, and no briefs are on file, and the attention of the appellate court is not drawn to any .error in the record, the judgment will be affirmed.
22 Cal. App. 373Cheda v. Southern Pacific Co. (1913)
APPEAL from a judgment of the Superior Court of San Luis Obispo County and from an order refusing a new trial. E. P. Unangst, Judge. The facts are stated in the opinion of the court.
22 Cal. App. 379Culver v. Lompoc Valley Savings Bank (1913)
Banks and Banking—Deposit in Trust—Bights op Surviving Beneficiary.—Where a man deposits money in a bank in the names of himself and the Children’s Home Society, subject to payment upon his order or the order of the beneficiary, and instructs the bank ■to pay the residue upon his death to the beneficiary, a trust is thereby created in such residue in favor of the beneficiary, although the depositor makes additional deposits from time to time and withdraws various amounts therefrom. Id.—Capacity op Bank to Act as Trustee—Section 290% op the Civil Code.—The bank was not prohibited from acting as trustee by section 290% of the Civil Code, for that section refers to corporations formed after its enactment. Id.—Incapacity op Trustee—Equity Prevents Failure op Trust.— But if the bank were without authority to execute the trust, a court of equity would not allow the trust to fail for that reason.
22 Cal. App. 383Kinard v. Kaelin (1913)
Appeal—Insufficiency of Evidence—Specification of Particulars.— On an appeal from a judgment, taken upon the judgment-roll accompanied by a bill of exceptions which contains no specifications nor attempted specifications of the particulars in which the evidence is insufficient to support the findings, it must be assumed that there was ample evidence to support them. Id.—Second Default—Order Denying and Directing the First Answer to Stand.—It is not an abuse of discretion to deny a motion to enter a second default, taken upon failure to answer after the setting aside of the first default, and to direct that the answer, filed with the motion to vacate the first default, stand as defendant’s answer. Id.—Bill of Exceptions—Order and Proceedings not Preserved.— But if it were otherwise, the error is not available to the plaintiffs on appeal, if the order complained of and the proceedings leading up to it were not preserved and presented in a bill of exceptions prepared and authenticated within the time and in the manner'prescribed by sections 649 and 650 of the Code of Civil Procedure. Id.—Order not in Judgment-roll—Review on Appeal.—Where an order of the trial court striking out parts of the plaintiff’s amended answer to the defendant’s cross-complaint is not included in the judgment-roll as required by section 670 of the Code of Civil Procedure, such order must be sustained if it can be supported upon any just ground appearing in the record. Id.—Order Striking Out Part of Answer—Harmless Error.—Error in striking out an allegation of payment in an answer is harmless, if -both parties and the court thereafter proceed upon the theory that the alleged payment is a material issue. Id.—Ejectment—Improvements as Set-off.—In actions for the recovery of real property the value of permanent improvements, made by a person holding in good faith and under a color of title adversely to the plaintiff, may be allowed only as a set-off to such damages as may be claimed for the withholding of the property sued for. Id.—Pleading—General Denial of Allegations in Paragraph of Verified Cross-complaint.—It is proper to strike out an allegation in an answer to a verified cross-complaint which allegation consists of a mere general denial if each and every allegation of a specified paragraph in the cross-complaint. Building and Loan Agreement—Repayment on Completion op Building.—Where a building and loan agreement provides for repayment of the borrowed money when the house is completed, the law implies that the house is to be completed in a reasonable time, measured by the circumstances, and what is a reasonable time is a question for the trial court. Trustee’s Sale—Action to Vacate—Nonsuit.—In an action to set aside a sale of real property under a trust-deed, the introduction in evidence of the deed of trust and the trustees’ deed to the defendant prima facie establishes title and right of possession in the cross-complainant, and therefore a motion for a nonsuit is properly denied. Id.—Trust-deed—Capacity of Interested Trustee.—The fact that the trustee designated in a deed of trust may have an interest in the sale of the property secured thereby does not incapacitate him from acting, nor, in the absence of a showing of fraud, irregularity, or misconduct on his part, invalidate a sale made under the terms of the deed of trust. Id.—Creditor as Trustee and Purchaser at Sale.—The creditor himself may rightfully act as such trustee, and may properly purchase at his own sale. Id.—Trust-deed—Sale Under Power.—A deed of trust with the usual power of sale is legal, and the power can be exercised without proceedings to foreclose as in case of an out and out mortgage.
22 Cal. App. 393Lasky v. Bew (1913)
APPEAL from a judgment of the Superior Court of the City and County of San Francisco and from an order refusing a new trial. Thomas F. Graham, Judge. The facts are stated in the opinion of the court.
22 Cal. App. 398Edwards v. Laird (1913)
Brokers—Producing Purchaser of Beal Estate—Commissions.—A real estate broker does not produce a purchaser ready, able, and willing to purchase, so as to be entitled to commissions, if the would-be purchaser does not sign an agreement to purchase, and his identity is unknown to the vendor until suit is brought by the broker for commissions. Id.—Performance of Services—Time Limited in Contract.—To entitle a real estate broker to his commissions, his services must be performed within the time specified in the contract. Ib.—Duration of Broker’s Contract—Meaning of “In Ant Event.” The expression in a real estate broker’s contract with his principal that the agreement is “to be maintained in any event until the 28th day of September,” means that whatever may happen the agreement shall he maintained until that date. The phrase in any event does not extend the time prescribed beyond the day named. Id.—Estoppel of Principal to Dent Liabilitt for Broker’s Commissions—A broker cannot assert that his principal is estopped to deny liability for his services, when he has already completed the services at the time of the principal’s conduct complained of, and such conduct consists of an oral promise as to a matter within the statute of frauds. Id.—Batification bt Principal—Acceptance of Benefits.—A principal does not ratify a contract made by a broker with a prospective purchaser of land, if he does not accept the benefits of the contract. Id.—Batification of Broker’s Contract must be in Writing.—Since a broker’s contract to sell land must be in writing to justify the recovery of his commission, a ratification of his contract of sale by the principal must be written.
22 Cal. App. 404Beswick v. Churchill Co. (1913)
Estate op Decedent—Conveyance in Fraud op Creditors—Action by Creditor to Set Aside.—Where a debtor conveyed property in alleged fraud of creditors, creditors cannot, after his death, bring an action to set aside the conveyance without first having applied to the court for an order directing the administrator to bring the action, as provided by sections 1589 and 1590 of the Coda of Civil Procedure.
22 Cal. App. 409Allen v. Conrey (1913)
Appeal—Alternative Method—Necessity op Presence op Reporter at Trial.—If a party to an action expects to take Ms appeal under the alternative method provided by section 953a of the Code of Civil Procedure, and have Ms record prepared according to the procedure affecting that method, then he must see to it that the official phonographic reporter is present at the trial in order that a transcript of the evidence and proceedings may be furmshed by the one officer whose duty it is to prepare it. Id.—Certification of Transcript by Judge—Mandamus to Compel.— Where there was no phonographic reporter present at the trial, and the cause was tried on a stipulated statement of fact, mandamus does not lie to compel the judge to certify to the correctness of the transcript on an appeal under the alternative method provided hy section 953a of the Code of Civil Procedure, which transcript has been prepared by the clerk.
22 Cal. App. 413Western Underwriting & Mortgage Co. v. Superior Court (1913)
APPLICATION for Writ of Prohibition directed to the Superior Court of San Diego County and to W. A. Sloane, Judge thereof. The facts are stated in the opinion of the court.
22 Cal. App. 416MacHinery & Electrical Co. v. Young Men's Christian Ass'n (1913)
APPEAL from a judgment of the Superior Court of Los Angeles County and from an order refusing a new trial. M. T. Dooling, Judge presiding. The facts are stated in the opinion of the court. Williams, Goudge & Chandler, and Edgar F. Hughes, for Appellant.
22 Cal. App. 421Frey v. Superior Court (1913)
APPLICATION for Writ of Prohibition directed to the Superior Court of San Diego County and W. A. Sloane, Judge thereof. The facts are stated in the opinion of the court.
22 Cal. App. 426People v. Beretoni (1913)
Criminal Law—Evidence—Deposition at Preliminary Examination —Record on Appeal.—Where a defendant assigns error at the trial - in the admission of evidence of the deposition of a witness taken at the preliminary examination, because the deposition was not certified properly, it is his duty to incorporate the certificate in the record in order that its sufficiency or insufficiency may be determined. The burden is on him, not on the prosecution, to show error if there was any. Id.—Liquor Ordinance—Prosecution for Violating—Evidence.—In a prosecution for conducting a place where alcoholic liquors are sold in violation of an ordinance, it is proper to refuse to allow the defendant to show, by questions to a witness which are not specific, the existence of other places in the immediate neighborhood where alcoholic liquors were sold and distributed, in rebuttal of evidence that men were seen coming from the direction of defendant’s house in an intoxicated condition.
22 Cal. App. 430People v. Duncan (1913)
APPEAL from a judgment of the Superior Court of Humboldt County and from an order refusing a new trial. Geo. D. Murray, Judge. The facts are stated in the opinion of the court.
22 Cal. App. 439Matter of Bonds of Reclamation Dist. 900 (1913)
The facts are stated in the opinion of the court. White, Miller & McLaughlin, Arthur C. Huston, and Harry L. Huston, for Appellant Reed Orchard Company. A. L. Shinn, C. L. Shinn, and Elmer W. Armfield, for Respondent Reclamation District No. 900.
22 Cal. App. 448Simmons v. Simmons (1913)
APPEAL from an order of the Superior Court of Nevada County modifying a decree of divorce in the matter of the custody and support of minor children. Geo. L. Jones, Judge. The facts are stated in the opinion of the court.
22 Cal. App. 456Walton v. Davis (1913)
Agency—Suit by Undisclosed Principal—When not Maintainable. A contract -between a creamery company and a person who formerly has operated a “cream route,” whereby he agrees, for a stipulated monthly salary,.to deliver to the creamery all the cream that he can secure within a certain district, calls for the performance of personal services, rather than the sale Of a commodity, and his undisclosed principal cannot sue thereon. Id.—Recorded Power op Attorney—When not Notice op Agency.— The fact that the undisclosed principal had recorded a power of attorney which gave the cream hauler the right to make contracts as manager of his ranch, did not charge the creamery company with notice that the cream hauler, in contracting with it, acted as agent of the owner of the ranch.
22 Cal. App. 461Eaton v. Southern Pacific Co. (1913)
Railroads—Accident at Crossing—Switch Engine Striking Vehicle —Contributory Negligence.—Where, in an action against a railroad company for injuries suffered by persons riding in a buggy when a switch engine struck it, the defense is raised that the plaintiffs were guilty of contributory negligence in not observing the approaching engine before they reached the “north track,” the determination of the jury, on conflicting testimony, that the engine was on the “south track” at the time of the collision, is conclusive. Id.—Finding oe Jury—Conclusiveness Where Three Juries Come to Same Conclusion.—If three different juries, upon practically the same evidence, reach the same conclusion, this is a significant fact; and under such circumstances, if there is any substantial evidence tending in any material degree to support the verdict, it should not be disturbed. Id.—Location of Engine—Special Issue.—It is not error to refuse to submit to the jury, with instructions to return a special finding thereon, the question: “Was the engine, when it struck the plaintiff’s buggy, running on the defendant’s north-bound track” 3 Id.—Special Issue—Discretion op Court.—Whether or not such interrogatory should have been submitted to- the jury was, under section 625 of the Code of Civil Procedure, a question to be determined by the court in its discretion, and the exercise of such discretion is not a subject for review on appeal. Id.—Contributory Negligence in Approaching Track—Lookout pob Approaching Engines.—If the plaintiffs stopped twice as they approached the main tracks, the last time being distant from the south track about one hundred and fifty feet, and looked and listened for the purpose of learning whether a train or engine was being operated in the vicinity, and saw nothing to indicate the proximity of the engine, and heard no bell, whistle, or other signal, though there was evidence on behalf of defendant that the bell was continuously rung as the engine approached the crossing, it cannot be said, as a matter of law, that plaintiffs were guilty of negligence in not leaving their vehicle and going forward on foot to a point from which a view of the main track could be had. Id.-—Obstruction op View by Cars—Duty op Persons Approaching Track.—If plaintiffs’ view of the main track was obstructed by boxcars standing on yard tracks, their failure to look for approaching trains cannot be imputed to them as negligence, but the duty devolved on them to take such other precautions for their safety as reasonable prudence demanded. And it was their duty, on reaching a point, where their vision was unobstructed, to stop and look, if there were time and space for so doing. Id.—Juror—Familiarity With Railroad Crossing as Ground pob Bias.—It was not reversible error for the court to deny a challenge to a juror on the ground of bias, because of his familiarity with the railroad crossing, when he stated that he would reach a verdict upon the evidence adduced and be guided by the instructions of the court in his consideration thereof. Id.—Bias op Juror—Conclusiveness op Trial Court’s Determination op Question.—The question as to the bias of a proposed juror is one of mixed fact and law, and where there is a conflict of evidence touching the question, the conclusion of the court thereon, like the determination of any other fact found upon conflicting evidence, is final. lb.—Speed op Engine—Instructions Properly Refused.—If excessive speed was not an issue and there was no- evidence whether the vicinity was open and sparsely settled, the court did not err in refusing a request of the defendant to instruct the jury that “there is no law of this state regulating the speed of railroad trains while running through sparsely settled country. A speed of fifteen or even twenty miles an hour is not of itself .negligent”; nor, to- refuse to give an instruction that “no unusual speed of the engine could have misled the plaintiff unless he saw or heard the engine and undertook to cross ahead of it, and to make such an attempt and fail is conclusive evidence of contributory negligence.” Id.—Omission to Ring Bell at Crossing—Instructions.—The giving of an instruction that the omission to ring the locomotive bell, as required by section 486 of the Civil Code, constituted negligence on the part of defendant railroad company for which, in the absence of contributory negligence, it would be liable in damages, was proper. Id.—Care Required in Approaching Track—Instruction Covered by Others.—A requested instruction that “the track of a steam railroad must itself be regarded as a sign of danger, and if the traveler would have seen the engine if he had looked, the very fact of injury will raise a presumption that he did not look and was therefore guilty of contributory negligence,”, is fully covered by an instruction that “the railroad track of a steam railway must itself be regarded as a sign of danger, and one intending to cross must avail himself of every opportunity to look and to listen for an approaching train. What he must do in such case will depend upon circumstances. If the view of the track is obstructed he should take greater pains to listen.” The refusal of the requested instruction is therefore not cause for complaint. Id.—Evidence—Opinion op Engineer as to Care Taken by Fireman.— A question directed to the engineer, who before the accident had left the engine in charge of the fireman, “Is there anything that you know of that he (the fireman) could have done that he didn't do?” is improper as calling for a conclusion and invading the province of the jury. Id.—Exhibition op Injured Arm to Jury.—It was not prejudicial error to permit one of the plaintiffs to exhibit his injured arm to the jury, although the injury had been admitted by the answer.
22 Cal. App. 475People v. Zachary (1913)
Criminal Law—Homicide in Struggle for Revolver—Self-defense.— Where two men engage in a struggle for a revolver, one of them having found the other in a compromising position with his wife, and during the struggle the husband shoots his adversary, the appellate court cannot say, as a matter of law, that the conclusion of the jury, that the homicide was committed without reasonable apprehension of bodily harm, is unsupported. Id.—Declarations of Defendant Made After Arrest.—The action of the trial court in permitting a witness to testify to statements, made by the defendant after his arrest, is not prejudicial to him, where he himself repeats practically the same statements while on the stand. ■ Id.—-Evidence—Use of Incorrect Diagram.—The use by the district attorney of a photograph of the scene of the crime, and of a diagram incorrect in some of its details, is not prejudicial error, where the photograph and diagram do not materially affect the question of self-defense, which is" the only theory advanced by the defendant. Id.—Evidence—Statements Made Before Trial.—Error in admitting evidence of statements, made prior to the trial by the defendant's wife, is not prejudicial, if they are substantially repeated by her in evidence. Id.—Erroneous Bulings on Evidence—When not Ground tor Beversal.—Bulings of the trial court in the reception and rejection of testimony, which technically may be erroneous, do not warrant a reversal if they are of such a character that they could not have influenced the jury against the appellant. Id.—Instructions—Whether Invade Province of Jurt.—An instruction to the jury: “I am instructing you as to the law solely to- the end that such instructions may in some measure at least assist you in reaching a conclusion as to the facts of the case,” while improper, is not reversible error, where a reading of the instructions as given shows that the court nowhere therein sought to determine or sug. gest its opinion as to any fact, but, on the contrary, told the jury that they must be the sole and exclusive judges of the facts.
22 Cal. App. 479Revis v. Superior Court (1913)
Criminal Law—Sale or Adulterated Milk—Review of Conviction on Certiorari.—Certiorari does not lie to review a judgment convicting the petitioner of selling adulterated milk in violation of law (Stats. 1911, p. 970), when no attack is made on the validity of the statute defining the offense, and the trial court had jurisdiction, but the petitioner insists that at the trial he was denied an opportunity to make his defense by a ruling of the court rejecting certain evidence, which evidence, as appears from the petition, was immaterial and constituted no defense.
22 Cal. App. 481Dalton v. Lelande (1913)
Referendum—Supplemental Petition—Time por Filing.—A petition invoking the right of referendum which is found to contain an insufficient number of names of qualified electors, cannot be supplemented after the expiration of thirty days from the passage of the ordinance by the filing of another petition of like character, which latter contains enough additional names of qualified signers to make up the minimum number required by the statute. Id.—Provisions of Los Angeles Charter—Incorporation in Subsequent State Law—Construction.—The provisions of the general laws regarding the initiative and referendum (Stats. 1911, p. 577) are an exact counterpart of the charter provisions of the city of Los Angeles, except that in the state law the "petitions shall be in all respects in accordance with,” etci, while in the charter it is provided that “said petition shall be in all respects in accordance with the provisions of said section.” And since the legislature enacted the state law after the provisions of the charter had received judicial construction, the propriety of following such construction is accentuated. Id.—Construction of Statute—Subsequent Re-enactment by Legislation.-—Where a statute that has been construed by the courts has been re-enacted in the same or substantially the same terms, the legislature is presumed to be familiar with its construction and to have adopted it as part of the law. Id.—Construction of Words—Incorporation in Subsequent Statute. Where words and phrases employed in a new statute have been construed by courts to have been used in a particular sense in a former statute on the same subject, or one analogous to it, they are presumed' to be used in the same sense in the new statute as in the previous one. Id.—Construction of Charters—Rule Applicable to Statutes.—A rule of construction involving legislative intent in adopting statutes previously construed applies with equal force to charter provisions. Id.—City Charter—Force and Effect of Provisions.—Under our constitution, charter provisions have the force and .effect of legislative enactments within their constitutional limitations, the same being the organic law or local constitution of the city.
22 Cal. App. 487Wheeler v. County of Plumas (1913)
APPEAL from a judgment of the Superior Court of Plumas County and -from an order refusing a new trial. K. S. Mahon, Judge presiding. The facts are stated in the opinion of the court, • and in 149 Cal. 782, [87 Pac. 802]. U. S. Webb, Attorney-General, M. C. Kerr, District Attorney, and L. N. Peter, for Appellant. Cheney, Downer, Price & Hawkins, and J. A. Boyle, for Respondents.
22 Cal. App. 493Yolo County Consolidated Water Co. v. Adamson (1913)
The facts are stated in the opinion of the court.
22 Cal. App. 500Pavlovich v. Pavlovich (1913)
Resulting Trust—Purchase of Land—Price Paid by One and Title Taken by Another.—Where one pays the purchase price of land, and the land is thereupon conveyed to another, the title of the property is held, under such conveyance, in trust for the person who has paid the purchase price. Id.—Action to Establish Trust—Sufficiency of Complaint.—A complaint in an action to establish a trust which alleges an oral agreement between the parties to purchase real property, and for that purpose to contribute an equal amount of money; that certain moneys were contributed by the plaintiffs; that the defendant thereafter purchased one lot and entered into a contract with the owner for the purchase of another; that for the two lots the sum of seven hundred and fifty dollars was to be paid, and that said sum was paid by the defendant for the same; that the latter took the deed to one lot in his own name; and that subsequently, and after expensive improvements were erected upon the lots, the expense of which was borne partly by the plaintiffs, the defendant claimed that he was the sole owner of the property, is sufficient to state a cause of action as against a general demurrer. Id.—Demurrer to Complaint—Bar of Statute of Limitations.—A demurrer to the complaint, on the ground that the action is barred by the statute of limitations, is properly overruled, if the precise time at which the alleged repudiation by the defendant of the trust took place does not appear on the face of the complaint. Id.—Pleading—Rules of Construction.—The rule is, not that a pleading is to be construed most strongly against the pleader, but that in the construction of a pleading, for the purpose of determining its effect, its allegations must be liberally construed, with a view to substantial justice -between the parties. Id.—Bar of Statute of Limitations—Review on Appeal.—On a.n appeal from a judgment on the judgment-roll alone, it must be conclusively presumed that a finding of the trial court as to the date when the defendant repudiated the trust was justified by the evidence. Id.—Repudiation of Trust Necessary to Create Cause of Action.— If the plaintiff and defendant contributed to 'the purchase of land, the title to which was taken in the name of the defendant, a cause of action to establish a resulting trust does not accrue in favor of the plaintiff against the defendant until the latter repudiates the trust and sets up an adverse claim. Id.—Statute op Frauds—Trusts Arising by Operation op Law.— •The plea of the statute of frauds cannot he set up as a har to relief in cases of constructive trusts. Section 852 of the Civil Code expressly excepts from its operation such trusts as arise "by operation of law.” Id.—Oral Agreement not Source op Trust.—Where two persons contribute money to the purchase of land the title to which is taken in the name of one o'f them, pursuant to an oral agreement, the resulting trust comes, not from the agreement, but from the facts shown as to the amount of purchase price advanced by each. Id.—Equity in Land Held Under Agreement to Purchase.—If it appears in an action to establish such trust, that the defendant has acquired the legal title to one tract but only an agreement to purchase another tract, the court may adjudicate their respective rights to the equity in the latter tract.
22 Cal. App. 508Roach v. Whalen (1913)
Venue—Suit to Vacate Judgment Determining Heirship.—Where a judgment establishing heirship has been entered in the matter of the estate of a decedent, but the estate, consisting of land and money, has not yet been distributed, the venue of a suit to vacate the judgment, on the ground of fraud, and to establish the right of the plaintiff as heir, is, under section 392 of the Code of Civil Procedure, in the county where the land is situated, rather than in the county of the defendants’ residence.
22 Cal. App. 514Mulvey v. Superior Court (1913)
Injunction—Jurisdiction to Revive or Modify—Pendency of Appeal. In a suit to restrain the construction of a street through a park, because the resulting damages to the plaintiff’s abutting property have not been ascertained or adjudicated, the court has power, after sustaining a demurrer to the complaint without leave to amend, and dissolving the restraining order, and directing a judgment of dismissal to be entered, but before the formal entry of the judgment, to revive the injunetional order to preserve the status quo pending the plaintiff’s intended appeal; but after the appeal is perfected, the court is without jurisdiction to make orders modifying the injunction, and may be prevented from so doing by a writ of prohibition.
22 Cal. App. 517Shilling v. Dodge (1913)
New Trial—Duty op Trial Judge to Grant—Conflicting Evidence.— It is the duty of the judge of a trial court to grant a new trial whenever he is not satisfied with the verdict, if tried by a jury, or with the findings, if tried by the court; and he is not bound by the rule as to conflicting evidence, as is an appellate court. Id.—Discretion op Trial Judge—Presumption on Appeal.—The motion for a new trial is addressed to the sound discretion of the trial judge, and under a general order granting a new trial, the appellate court must assume that in granting it he was satisfied that the verdict was contrary to the weight of the evidence.
22 Cal. App. 519Blevins v. Mullally (1913)
APPEAL from a judgment of the Superior Court of Colusa County and from an order refusing a new trial. H. M. Albery, Judge. The facts are stated in the opinion of the court. Alva A. King, Ernest Weyand, and Thos. Rutledge, for Appellants.
22 Cal. App. 535Outwaters v. Brownlee (1913)
Limitation of Actions—Acknowledgment or New Promise.—An acknowledgment or new promise which will take a case out of the operation of the statute of limitations must "he a distinct and unconditional admission of the debt which the party is liable for and willing to pay, or a direct and unqualified promise to pay the amount of the indebtedness. If the acknowledgment is complete, the law will supply the promise to pay; and if the instrument itself contains a sufficient promise, no further acknowledgment of the debt is required. Id.—Acknowledgment of Indebtedness—Certainty as to Amount.— There must be a clear and definite acknowledgment of the debt, a specification of the amount due, or a reference to something by which such amount can be definitely and certainly ascertained. Id.—New Promise—General Requisites.—The new promise, which will remove the bar of the statute, must be general and unqualified. It must be a promise to enforce which an action will lie, and generally an agreement to transfer a designated deposit or other personal property cannot be enforced. Id.—Acknowledgment of Indebtedness—New Promise—What Does not Constitute.—An instrument dated and signed by a person since deceased, stating that he has a certain amount of money on deposit at a named bank which at his death he wishes paid to a designated person “for kindness she has shown me during my lifetime, and she is to pay all my funeral expenses and just debts,” is not such an acknowledgment of an indebtedness to her or promise to pay as will remove the bar of the statute of limitations. Account Stated—Definition and Requisites.—An account stated is an agreement between the parties fixing and determining the amount due from one to the other. The instrument must show upon its face that it was intended to be a final settlement. Id.—Instrument Insufficient as an Account Stated.—An instrument dated and signed by a person since deceased, stating that he has a certain amount of money on deposit at a named bank which at his death he wishes paid to a designated person “for kindness she has shown me during my lifetime, and she is to pay all my funeral expenses and just debts,” does aiot amount to an account stated. Estate of Decedent—Action Asainst Administrator for Services— Evidence,-—Such instrument is not admissible as evidence, in an action against the administrator of the estate of the deceased to recover for services rendered to him, of an intention on his part to pay any certain amount; it can do no more than indicate.an intention to pay the reasonable value of the services performed.
22 Cal. App. 544Howard v. Oroville School District (1913)
School Lands—Evidence Establishing in Action to Quiet Title.— In this action to quiet title to a small parcel of land within the townsite of Oroville, the evidence establishes that the property in controversy was set aside for school purposes, and that the legal title thereto was held by W. "S. Safford, as county judge, in trust for the Oroville school district. Ed.—Title in Judge of Superior Court—Duty to Convey to School District.—It was the duty of the county judge to make a conveyance of the property to the school district (Stats. 1867-8, p. 692). But he having failed to perform his duty, his successor in office, the judge of the superior court, became the holder of the legal title in trust, and it is proper for the school district to bring an action against him as such trustee to have the legal title vested as a matter of record in the holder of the equitable interest. Id.—Bemedy to Compel Conveyance by Judge.—As it is the ministerial duty of the judge of the superior court to execute the conveyance, mandate, strictly speaking, is probably the proper remedy, but the decree of the court in a suit to quiet title has the same effect. Id.—Adverse Possession—Acquisition of Title to Public Property. Title to the property by adverse possession could not be acquired •by an individual while the land was held by the government, nor afterward when it was held by the judge in trust for the school district.
22 Cal. App. 552People v. Salladay (1913)
The facts are stated in the opinion of the court.
22 Cal. App. 556Watson v. Columbia Basin Development Co. (1913)
APPEAL from a judgment of the Superior Court of Tuolumne County and from an order refusing to set the judgment aside. G. W. Nicol, Judge. The facts are stated in the opinion of the court. W. P. Caubu, Rowan Hardin, and Stafford & Stafford, for Appellant.
22 Cal. App. 565Whitehouse v. Whitehouse (1913)
The facts are stated in the opinion of the court.
22 Cal. App. 569Laird v. Boothe (1913)
APPEAL from a judgment of the Superior Court of Mariposa County. J. 3. Trabucco, Judge. The facts are stated in the opinion of the court.
22 Cal. App. 579Stephens v. Lemoore Canal & Irrigation Co. (1913)
APPEAL from a judgment of the Superior Court of Kings County and from an order refusing a new trial. John Q-. Covert, Judge. The facts are stated in the opinion of the court.
22 Cal. App. 592People v. Lichtenstein (1913)
APPEAL from a judgment of the Superior Court of the City and County of San Francisco and from an order refusing a new trial. B. V. Sargent, Judge presiding. The facts are stated in the opinion of the court. George A. Knight, Harry E. Michael, and Knight & Heggerty, for Appellants. U. S. Webb, Attorney-General, John H. Riordan, and J. Charles Jones, Deputy Attorney-General, for Respondent.
22 Cal. App. 617Taber v. Bailey (1913)
The facts are stated in the opinion of the court.
22 Cal. App. 627Jaques v. Board of Supervisors (1913)
Appeal—New Method—Notice of Appeal—Cost-bond.—Under the new method of appeal, the mere filing of the notice of appeal, in a proper manner, operates ipso facto to perfect the appeal, and a failure to serve the notice or give a cost-bond, or an error in attempting to do so, which might have been fatal to the appeal under the old method, may be treated as a matter of no legal consequence. Id.—Record—Certification by Clerk or Judge.—-Where no questions of fact are tried, and the transcript of the record prepared consists entirely of the papers constituting the judgment-roll, the record is properly prepared and certified by the clerk. The only transcript which the judge is required or authorized to certify is that containing the testimony and other proceedings which are had in the trial of issues of fact. Id.—Appeal on Judgment-roll—New Method.—An appeal taken from a judgment on the judgment-roll alone need not be prosecuted under the old method. Id.—Transcript—Time for Filing.—Under rule 2 of the supreme court, where a transcript is prepared under section 953a of the Code of Civil Procedure, the date of the certification of the transcript by the judge or the clerk, as the case may be, marks the time of the completion of the preparation of the transcript, and must therefore be regarded as the date from which the time within which the transcript must be filed in the appellate court begins to run. Hence the filing thereof within forty days from such date is within the legal time for that act to be performed. Id.—Transcript—Time for Preparing.—Neither the statute, nor any rule of the appellate courts, contains any provision prescribing a limit to the time within which a transcript is to be prepared. Id.—Delay in Filing Transcript—Dismissal of Appeal.—Although a transcript is not filed within the time prescribed, a motion to dismiss the appeal on that ground will be denied, if the transcript is filed prior to the hearing of the motion. Id.—Liberal Construction of Statutes and Rules of Court Providing for Appeals.—Statutes providing for appeals should be liberally construed and applied, and only a substantial departure from the rules thus laid down, or from the rules relating to and regulating the appellate practice and procedure, should be held sufficient to deprive a litigant of the right to have the merits of his cause reviewed by the courts of last resort.
22 Cal. App. 634Cohen v. Anderson (1913)
The facts are stated in the opinion of the court.
22 Cal. App. 645Burris v. Rodrigues (1913)
APPEAL from a judgment of the Superior Court of Kings County and .from an order refusing a new trial. John G. Covert, Judge. The facts are stated in the opinion of the court.
22 Cal. App. 653Lynch v. Lynch (1913)
.The facts are stated in the opinion of the court.
22 Cal. App. 663People v. Warr (1913)
APPEAL from a judgment of the Superior Court of Los Angeles County and from an order refusing a new trial. Frank It. Willis, Judge. The facts are stated in the opinion of the court. Thos. P. White, Alfred L. Bartlett, Irwin, White & Rosecrans, and Randall & Bartlett, for Appellant.
22 Cal. App. 671McGrory v. Pacific Electric Ry. Co. (1913)
APPEAL from a judgment of the Superior Court of Los Angeles County and from an order refusing a new trial. J. P. Wood, Judge. The facts are stated in the opinion of the court. J. W. McKinley, R. C. Gortner, and W. R. Millar, for Appellant. Morton, Hollzer & Morton, T. A. Williams, and F. M. Fowler, for Respondents.
22 Cal. App. 674People v. Woodley (1913)
Divorce—Statutes Forbidding Remarriage Within Prescribed Time. Statutes providing that neither party to a divorce shall be capable of contracting marriage with a third person within six months after the entry of the decree of divorce, or within the time in which an appeal may he taken in the ease, have no extraterritorial effect. Id.—Oregon and Washington Statutes—Divorce in Latter and Remarriage in Former State.—Where the statute of Washington provides that neither party to a divorce shall be capable of contracting marriage within six months after the entry of the decree, and the statute of Oregon provides that neither party to a divorce shall'be capable of contracting marriage with a third person within the period for taking an appeal in the case, the marriage in Oregon of a nonresident thereof, who was divorced in Washington less than six months before, is valid. The Oregon statute does not apply to divorces granted in other states, nor does the Washington statute apply to marriages contracted in other states. Id.—Marriage—Validity in Other States.—And such marriage, being valid in Oregon where contracted, will be regarded, under section 63 of the Civil Code, as valid in California.
22 Cal. App. 682Browne v. San Gabriel River Rock Co. (1913)
APPEAL from a judgment of the Superior Court of Los Angeles County and from an order refusing a new trial. Walter Bordwell, Judge. The facts are stated in the opinion of the court.
22 Cal. App. 688Weill v. Danziger (1913)
APPEAL from a judgment of the Superior Court of Kern County and from an order refusing a new trial. J. W. Mahon, Judge. The facts are stated in the opinion of the court.
22 Cal. App. 691Dunaway v. Anderson (1913)
The facts are stated in the opinion of the court.
22 Cal. App. 697People v. Holt (1913)
Embezzlement—Money Delivered to Defendant With Which to Build House—Evidence.—The evidence-in this ease, consisting in part of voluntary admissions made by the defendant to the district attorney prior to the filing of the original complaint, is sufficient to sustain the conviction of the defendant for embezzling money delivered to him by the prosecuting witness for the purpose of erecting her a house. Id.—Instructions—Definition of Embezzlement—Good Eaith as Defense.—Where the court, in defining embezzlement, uses the language of the Penal Code, and particularly instructs the jury that ' , before convicting the defendant they should find that he received the money for the purpose charged, and that he appropriated it with the intent to embezzle the same, and that if the appropriation was made upon the honest belief of lawful right the act was not criminal, is sufficient and covers the defense that the money was appropriated in good faith under claim of right. Id.—Refusal of Instructions—Nonprejudicial Error.—The refusal of the court to give an instruction embodying a statement of section 511 of the Penal Code providing that claim of title is a ground of defense to a charge of embezzlement, which instruction in a general way is covered by other instructions that are given, if erroneous, is nonprejudicial under section 4% of article 6 of the constitution. Id.—Instructions—Order in Which Given.—The order in which instructions are given is immaterial, and therefore the defendant cannot assign error because the court gives his instructions before those offered by the people. Id.—Party on Whose Behalf Instruction Offered—Whether Material.—It matters not upon whose behalf an instruction may be offered; if the eqprt determines that it contains a proper and pertinent statement of the law and reads it to the jury, it then becomes the advice of the court, and not a special- argument in favor of either of the parties litigant.
22 Cal. App. 701Reed v. McDonald (1913)
APPEAL from a judgment of the Superior Court of Kern County and from an order refusing a new trial. Paul W. Bennett, Judge. The facts are stated in the opinion of the court.
22 Cal. App. 707Civille v. Civille (1913)
Divorce—Judgment fob Defendant—Res Judicata in Subsequent Action by Him.—-Where, in an action by a woman for a divorce on the ground -of cruelty because of her husband’s alleged intimacy with another woman, the court finds- the alleged charge to be untrue and gives judgment against her, such judgment is res judicata and bars her from pleading the same alleged misconduct in justification, of her abandonment of her husband, in his subsequent action for divorce on the ground of desertion.
22 Cal. App. 709Schenck v. Hirshfeld (1913)
Wagers—Right of Party to Withdraw or Recover Money.—A court will entertain, an action on behalf of a party to a wager when he seeks to' withdraw his money from the contest before the happening of the event upon which the wager is conditioned, if the wagering agreement does not violate a criminal statute. This relief is granted upon the ground that he who repents of an act which is frowned upon by the law will be furnished aid in withdrawing the consideration ventured. Ib.—Election Wager—Misdemeanor—Recovery of Money.—But to wager money on an election is a misdemeanor, under section 60 of the Penal Code, and therefore the money cannot at any time be recovered from the stakeholder. Courts will not lend their aid to enable persons who have committed a public offense to recover the property which was used in the perpetration thereof.
22 Cal. App. 712Newmire v. Ford (1913)
Attorney and Client—Contract to Defend One Charged With Crime —Action for Breach.—An attorney who has a contract for one thousand five hundred dollars to defend a person charged with a crime, and to employ necessary physicians, detectives, and other help when the same becomes necessary, cannot recover from the client for a breach of the agreement, when there is no evidence as to what would be a reasonable or necessary expenditure for such help, and it is a matter of conjecture whether any sum would remain as compensation to the attorney for his services after the making of the agreed expenditures. Id.—Unconscionable Contract of Attorney—Damages for Breach.— The contract in this case between a person charged with a criminal offense and a young and inexperienced attorney to pay the latter one thousand five hundred dollars in any event for making the defense, is unconscionable and the attorney can recover only reasonable damages for its breach. Id.—Time for Bringing Action by Attorney.—If the contract were one proper for enforcement, no sum was, under the optional right of the client, due from the client for sixty days after the execution of the agreement, and, the action being brought before the expiration of such time was premature. Id.—Amount of Recovery by Attorney.—But if the attorney possessed a present right of action for damages actually sustained through the client’s breach, it was an abuse of discretion for the trial court to allow him one thousand dollars’ damages, if the only services actually shown to have been performed by the attorney consisted of one and one-half hours’ talk with 'the client at the jail, and a single visit to the courthouse for the purpose of examining the stenographer’s notes taken at .the preliminary hearing. Id.—Showing of Actual Damages—Necessity of Making.—It was incumbent upon the attorney, conceding that he had a right of action, to show what damages he actually had sustained by reason of the breach of the contract.
22 Cal. App. 717Johnson v. All Night and Day Bank (1913)
Banks and Banking—Recovery by Depositor op Money Paid by Bank to Imposter.—In this action to recover the proceeds of a draft, drawn by the plaintiff on a bank in another state, and deposited with the defendant bank for collection, and paid by the latter bank to a confidence operator who was present when the draft was delivered to the defendant and in whose name the deposit slip was made out, the findings of the trial court, upon conflicting evidence, that the plaintiff did not orally authorize the defendant to pay the money, when collected, to the operator, is conclusive upon the appellate court.
22 Cal. App. 719Brooks v. White (1913)
APPEAL from an order of the Superior Court of San Diego County denying a motion to vacate a default judgment. T. L. Lewis, Judge. The facts are stated in the opinion of the court.
22 Cal. App. 722Konda v. Fay (1913)
APPEAL from a judgment of the Superior Court of Los Angeles County and from an order refusing a new trial. Frederick W. Houser, Judge. The facts are stated in the opinion of the court.
22 Cal. App. 726National Lumber Co. v. Tejunga Valley Rock Co. (1913)
Sale of Railroad Ties—Action for Price—Sufficiency of Evidence to Support Findings.—In this action to recover the price of railroad ties sold to one of the defendants, the evidence supports a finding that there was no agreement made by the defendant who subsequently took possession of the ties, to pay the plaintiff for them. Id.—Conversion of Ties—Action Therefore by Seller.—One who has sold railroad ties which are subsequently converted by a third person, cannot recover from the latter for conversion, for possession or the right of possession is necessary in order that plaintiff may recover in conversion. Limitation of Actions—Open Book Accounts—Statement of Account.—The amendment of 1907 to section 337 of the Code of Civil Procedure, extending the time for bringing actions upon open book accounts, has no application when a statement of account has been rendered and its correctness admitted. Id.—Account Stated—Statute of Limitations.—A stated account, in the absence of written promise to pay, creates a new cause of action, bgcom.es and is an obligation not founded upon an instrument in writing, and is therefore barred under section 339 of the Code of Civil Procedure after two years. Id.—Period of Limitation—Enlarging by Bendering Stated Account. A stated account, rendered long after an original statement which determined the right of the parties to sue, does not enlarge the time within which suit can be brought upon the original account stated.
22 Cal. App. 731Wickersham Co. v. Nichols (1913)
The facts are stated in the opinion of the court.
22 Cal. App. 734Campbell v. Rice (1913)
Evidence—Admissibility of Copt of Bill of Particulars.—A plaintiff cannot introduce in evidence a copy of a bill of particulars, served upon the defendant in response to his demand therefore, which was prepared by transcribing items from order sheets, payrolls, and data constituting a book of original entry, in the possession of the plaintiff and susceptible of being produced. Id.—Bill of Particulars—Purpose and Nature—Admissibility in Evidence.-—A bill of particulars, served upon the defendant in responso to his demand therefore, is but an amplification of the complaint, its purpose being to apprise the defendant of the specific demand of his adversary, and it is no more admissible in evidence than is a copy of the complaint. Id.—Books of Original Entry—Copies as Evidence.—A party to an action may not copy a book of original entry in his possession, withhold the original, and prove his case by introducing such copy in evidence.
22 Cal. App. 737Kramm v. Stockton Electric R. R. Co. (1913)
APPEAL from a judgment of the Superior Court of San Joaquin County and from an order refusing a new trial. J. A. Plummer, Judge. The facts are stated in the opinion of the court.
22 Cal. App. 761Kramm v. Stockton Electric R. R. Co. (1913)
Appeal—Belief from Default in Preparing and Serving Bill of Exceptions.—An order relieving the moving party for a new trial from his failure to prepare and serve a bill of exceptions within the time prescribed by law, on the ground of inadvertence and excusable neglect, is not appealable, and hence an appeal therefrom will be dismissed; but the point may be reviewed where the action of the court relieving the defendant of his default, together with all the proceedings had therein, is incorporated in the record on motion for a new trial.
22 Cal. App. 762Eaton v. Locey (1913)
Community Property—Purchase of Beal Estate in Wife’s Name.— In this action brought by a man against the devisees of his deceased wife to quiet title to real estate purchased in her name, the evidence supports findings that the property was community and paid for 'by money belonging jointly to the husband and wife. Id__Presumption That Property is Separate—Evidence to Overcome.—The testimony introduced by the husband is sufficient to overcome the presumption that the title to the property was vested in the wife as her separate estate, or that the husband intended the conveyance to operate as a gift to her. Id.—Evidence of Plaintiff—Beview on Appeal.—In such case it is beyond the province of the appellate court to declare that the plaintiff’s testimony, which does not appear to be unreasonable or improbable, is not true, it being entirely the function of the trial court to pass upon the weight of the evidence and the credibility of the witnesses. Id.—Evidence as to Whether Property is Community—Admissibility.—It is not proper for the husband to testify that the funds from which the property was purchased were not the “separate property” of the wife, but such testimony is not prejudicial if the witness also testifies that the funds were the result of their joint earnings during coverture. Id.—Witness—Suggestive or Leading Questions.—It often happens that cross-examination elicits new matter with reference to which questions suggestive in form may be asked on redirect examination without impropriety, or, at any rate, without harm to the other side, and questions in this ease relative to the earnings of the husband come within that rule. Id.—Evidence as to Whether Property Community—Execution op Deed.—The execution of a deed by the wife, not in the presence or with the knowledge of the husband, is a self-serving declaration on the issue whether the property is community or separate. Id.—Declarations op Decedent as to Joint Bank Account.—Declarations of the wife concerning a joint bank account of herself and husband, which tend to show that he had no interest therein, are self-serving and not admissible in evidence. Id.—Declarations op Decedent as to Use op Money in Purchase op Stock.—Declarations of the wife that the husband had used her money to buy stocks for himself are not only self-serving but immaterial.
22 Cal. App. 770Postal Telegraph-Cable Co. v. Superior Court (1913)
APPLICATION for a Writ of Certiorari. The facts are stated in the opinion of the court.
22 Cal. App. 780People v. Barrett (1913)
Criminal Law—Homicide—Evidence—Conduct op Dependant.—In a prosecution for homicide evidence that the defendant, within less than an hour after the crime, drew a revolver, pointed it at himself, and upon its being taken from him said,’“I couldn’t do it,” is admissible; it being for the jury to determine whether such evidence tends to show guilt, or was prompted by remorse for a justifiable act in taking life. Id.—Evidence—Board Perforated by Bullet.—Where the defendant pleads self-defense in a prosecution for homicide, a board from the floor, where the deceased was found lying after the shooting, with a bullet hole in it, is admissible in evidence; whether or not the perforation was made 'by a bullet fired by the defendant through the deceased after he had fallen, or whether made in some other manner, being questions for the jury to determine. Id.—Immaterial Evidence—Overcoat Worn by Deceased.—The introduction in evidence of the overcoat worn by the deceased at the time he was killed, if immaterial and without weight, is not prejudicial to the rights of the defendant. Id.—Reputation op Deceased—Limitation on Evidence Showing.— After the court has allowed considerable evidence to the effect that the deceased was in the habit of using profane language, talked too much, and “eussed the boys,” it may properly refuse further testimony of this character. Id.—Exhibits—Taking to Jury Room.—It is not obnoxious to section 1137 of the P.enal Code to permit the jury to take with them to the jury room such exhibits as a revolver, an overcoat, and a piece of flooring which were offered in evidence. Id.—Relations Between Accused and Deceased—Instructions Showing.—In a prosecution of a member of the police force for shooting the chief of police, it is not error to give the jury an instruction which embodies, the charter provision of the city, showing the powers, duties, and authority of the deceased as the defendant’s superior officer. Id.—Self-defense—Acts in Excess of Those Necessary for Safety —Instructions.—An instruction on the right of self-defense, as to the apparent necessity or absence thereof for the defendant firing shots in excess of those sufficient to protect himself, is not erroneous, if there is evidence tending to show that the last shot was the fatal one. Id.—Degree of Defense—Instructions.—A defendant charged with murder and convicted of manslaughter is not in a position to complain of an instruction as to what constitutes murder in the first degree.
22 Cal. App. 788Hill v. Pacific Gas & Electric Co. (1913)
APPEAL from a judgment of the Superior Court of Butte County and from an order refusing a new trial. John C. Gray, Judge. The facts are stated in the opinion of the court.
22 Cal. App. 806Thomas v. Thomas (1913)
The facts are stated in the opinion of the court.
22 Cal. App. 808People v. Connolly (1913)
Intoxicating Liquors—Sale in Violation of Ordinance—Suit to Abate Nuisance.—Judgment affirmed on authority of Ex parte Ellsworth, 165 Cal. 677.
22 Cal. App. 809Stephens v. Lemoore Canal & Irrigation Co. (1913)
Corporation—Sale op Stock por Delinquent Assessments.—Judgment and order affirmed on the authority of Stephens v. Lemoore Canal Irrigation Co., ante, p. 579.
22 Cal. App. 809Stephens v. Lemoore Canal Irrigation Co. (1913)