Volume 7 — California Unreported Cases

<p>APPEAL from Superior Court, Sonoma County; Albert G-. Burnett, Judge.</p> <p>Action by Christina A. Rie'bli against E. A. Husler. Judgment for defendant. Plaintiff appeals.</p>

<p>Water Rights—Trespass—Prescription.—It is Immaterial That the Quantity of water owned by defendant and conducted through the ditch to her land is left indefinite by the evidence, in an action for trespass, where defendant justified under a prescriptive right to the use of a ditch across plaintiff’s land as a conduit of water to her lands, and a right of entry for repairing it.</p>

<p>Ostensible Agency.—Evidence in an. Action for Labor Done in Street Paving that defendant told plaintiff, who was negotiating with her to do street paving for her, that all street work was arranged by iA, and the fact that A executed another contract with plaintiff, - as defendant’s agent, for such kind of work, which she recognized, justifies a finding that A, in making and modifying such a contract, had ostensible agency, defined by Civil Code, section 2300, to be when the principal causes a third person to believe another to be his agent.</p>

<p>APPEAL from Superior Court, City and County of San Francisco; Edw. A. Belcher, Judge.</p> <p>Action by Miller & Lux against the Kern County Land Company. From an order, refusing change of venue, defendant appeals.</p>

<p>APPEAL from Superior Court, City and County of San Francisco; Frank J. Murasky, Judge.</p> <p>Action by A. E. Buekman against Mary Hatch and others. Judgment for plaintiff, and William Nieol, one of the defendants, appeals.</p>

<p>Highways—Dedication.—Use hy the Public Generally of a Road for fifteen years, to the knowledge and with the acquiescence of the owner of the land on which it is located, does not show a dedication.1</p> <p>Highway—Prescription.—A Permissive Use of a Road, without anything to show the owner an adverse claim, will not give a right by prescription.2</p>

E. Gaddis, Judge. Action by Frances Bryan against S. A. Bryan. From a judgment for plaintiff and from an order denying a new trial defendant appeals.

T. Williams, Judge. Action by C. E. Swift and others against the Occidental Mining and Petroleum Company and another. Judgment for defendants, and from an order denying a new trial plaintiffs appeal.

S. Day, Judge. Action by John S. Bell against George Staacke and others. There was judgment for plaintiff, and from an order denying a new trial defendants appeal.

<p>APPEAL from Superior Court, Alameda County; John Ellsworth, Judge.</p> <p>Action by H. F. Hobson against Louisa Silva and husband. Judgment for plaintiff and defendants appeal.</p>

C. B. Hebbard, Judge. Action by Sarah Bacome against Thomas Black. From a judgment for plaintiff, and from an order denying a new trial defendant appeals.

<p>APPEAR from Superior Court, Alameda County; F. B. Ogden, Judge.</p> <p>Action by Georgie Morrison against J. C. McAvoy and others. ' From a judgment for defendants, plaintiff appeals.</p>

K. Trask, Judge. Action by George E. Metz and another against Susan W. Bell, as administratrix of the estate of Nathaniel Bell, deceased. Prom a judgment for plaintiffs, defendant appeals.

<p>APPEAL from Superior Court, Santa Barbara County; W. S. Day, Judge.</p> <p>Action by Edward Hildreth against the Montecito Creek Water Company. From a judgment in favor of plaintiff, defendant appeals.</p>

<p>APPEAL from Superior Court, City and County of San Francisco; Jas. M. Troutt, Judge</p> <p>Action by Ellen E. Murphy against Margaret E. Crowley and another. Judgment for defendants and plaintiff appeals.</p>

L. Short, Judge. Proceedings by W. L. Williams against Estelle Bagnelle, as school superintendent of Madera county, to compel defendant to draw a requisition on the county auditor in favor of plaintiff. From a judgment awarding the writ defendant appeals.

P. Unangst, Judge. ■Action by Flora Harloe against J. C. Berwick and wife and W. Sehnocker. Judgment for defendants, and from an order granting a new trial they appeal.

Bahrs, Judge. Action by William Cahill against Veronica C. Baird. From an order denying defendant’s motion for a new trial after a verdict' for plaintiff she appeals.

M. Seawell, Judge. Action by the people of the state of California, on the relation of Cornelius T. Sanders, against M. P. Jones and others. From a judgment for defendants, plaintiff appeals.

• APPEAL from Superior Court, City and County of San Francisco; J. M. Seawell, Judge. Petition for mandamus by William Denman against Reginald H. Webster, as superintendent of schools of the city and county of San Francisco. From a judgment for defendant the petitioner appeals.

Burnett, Judge. Judicial settlement of the estate of I. G. Wickersham, deceased. Prom orders confirming sales of certain realty by the executors, Mrs. Cora Wickersham, as executrix of Prank Wickersham, and guardian of I. G. Wickersham, an infant, appeals.

<p>Bills and Notes—Alteration by Inserting Interest.—In an Action on a note a defense was that the note had been altered by the insertion therein of writing calling for interest. The plaintiff in a verified complaint had alleged indorsement and transfer of the note by the payee to another for value before maturity, and a like indorsement by him to plaintiff. He testified that he had not received payment. Held, that such testimony tended to establish a prima facie case for plaintiff. On cross-examination of such witness defendant had a right to show by him facts which would dispute his testimony that the payee assigned the note to him before maturity to show why he had not received payment, and to dispute that the note had not been in his possession as testified by him.1</p> <p>Bills and Notes—Evidence.—Where, in a Suit on a Note, a Witness Testified that he had been attorney for the maker after the note was given and at the time certain indorsements were made by the payee, but that he was not the attorney for the payee, his testimony was not rendered incompetent because the payee subsequently testified that such witness was his attorney, the evidence being conflicting, and the court accepting that of the attorney.</p> <p>Bills and Notes—Doctrine of Relation.—Where the Payee of a Note made a mere equitable assignment thereof, and after maturity indorsed the same, the doctrine of relation would not apply to cut off the right of the makers to set up any defense good against the payee.</p> <p>Bills and Notes—Indorsement After Maturity.—Civil Code, section 3123, provides that an indorsee in due course is one who in the ordinary course of business and for value before its apparent maturity, and without knowledge of the dishonor, acquires a negotiable instrument duly indorsed to him or indorsed generally. Held, that, where a note was not duly indorsed to plaintiff before its apparent maturity, in an action thereon by him the maker might set up any equitable defense.2</p>

<p>APPEAL from Superior Court, Tuolumne County; G. W. Nicol, Judge.</p> <p>Action by John F. Callahan against John P. James. Judgment for plaintiff and defendant appeals. Reversed.</p>

<p>APPEAL from Superior Court, City and County of San Francisco; George H. Bahrs, Judge.</p> <p>Action by Thurlow McMullin against Virginia McMullin. From a judgment in favor of plaintiff, defendant appeals.</p>

Smith, Judge. Action by James Leonard against T. W. Leonard and another. There was judgment for plaintiff, and the above-named defendant appeals from an order denying him a new trial.

K. Dougherty, Judge. Judicial settlement of the estate of Antonio Pina, deceased, in which one Carrillo applied for letters of administration. Prom orders disallowing applicant’s bill of costs, and dismissing the application for letters of administration, applicant appeals.

<p>Sale—What Constitutes.—Defendant S., Son of Plaintiff, engaged with defendants M. and N. in working a mine, plaintiff agreeing to back his son for his share, and to send him either money or provisions to put in for his share, and, pursuant thereto, sent him provisions. Held, that there was no sale to the others, so as to make them liable therefor.</p>

<p>APPEAL from Superior Court, Santa Cruz County; Lucas F. Smith, Judge.</p> <p>Action by Nicholas Sambuck against the Southern Pacific Company. From a judgment in favor of plaintiff, defendant appeals.</p>

Smith, Judge. Unlawful detainer by John Lacrabere against John H. Wise and others. Judgment for plaintiff, and from an order denying a new trial defendants appeal.

Smith, Judge. Action by the Ben Lomond Wine Company against Charles Sladky. Judgment for defendant, and from an order granting a new trial defendant appeals.

<p>Partnership.—The Loaning of Money by a Partner to the Firm does not change the original contract of partnership.</p> <p>Appeal.—That a Specification as to the Insufficiency of Evidence . may avail, it must be directed to a material finding of fact,' and it must be clearly shown that there is no substantial testimony to sustain the finding. If there is, the credibility of witnesses, and the weight to be given their testimony, will not be considered.</p> <p>Partnership.—Refusal to Appoint a Receiver in an Action for Dissolution of a partnership and an accounting is in the sound discretion of the trial court.</p>

<p>APPEAL from Superior Court, City and County of San Francisco; J. C. B. Hebbard, Judge.</p> <p>Suit by H. F. H. Schmidt against Albert Bitzer and another. From an order refusing to dissolve an injunction, defendant Bitzer appeals.</p>

<p>APPEAL from Superior Court, City and County of San Francisco; Edward A. Belcher, Jud,ge.</p> <p>Action by Edwin Parrish against the Rosebud Mining and Milling Company and others. From a judgment in favor of defendant W. S. McCormick plaintiff appeals.</p>

Belcher, Judge. Action by Henry J. Withers against John J. Moore. From a judgment for plaintiff and from an order denying a motion for a new trial defendant appeals.

<p>APPEAL from Superior Court, Alameda County; F. B. Ogden, Judge.</p> <p>' Action by Andrew D. Pryal against William A. Pryal. From a judgment for plaintiff, defendant appeals.</p>

M. Seawell, Judge. Action by Hugh Hogan and T. P. Hogan, partners under the firm name of Humboldt Lumber Company, against the Globe Mutual Building and Loan Association and Frederick Esty. Prom a judgment of dismissal plaintiffs appeal. •

<p>APPEAL from Superior Court, Los Angeles County.</p> <p>Action by Jennie Vinson and another against the Los Angeles Pacific Railroad Company. Prom a judgment for plaintiffs, defendant appeals.</p>

<p>Application by H. W. Hutton for the disbarment of D. M. Delmas.</p>

<p>APPEAL from Superior Court, Sierra County; Stanley A. Smith, Judge.</p> <p>Frank Gehrig was convicted of manslaughter, and he appeals.</p>

<p>Forgery.—Where an Information for Uttering a forged cheek failed to charge that such uttering was with intent to defraud any person, or that defendant at the time knew that the check was false and forged, it was insufficient to sustain a conviction.</p> <p>Forgery—Appeal—Reversal for Insufficiency of Indictment.— Under Penal Code, section 1262, providing that, if a judgment against a defendant is reversed' without ordering a new trial, the appellate court must, if he is in custody, direct him to be discharged therefrom, on the reversal of a conviction for uttering a forged check, for insufficiency in the indictment, the defendant, who was in custody, was entitled to be discharged.</p>

<p>Partnership.—A Bank Receiving Deposits from A. B. P. & Co. is put on inquiry as to whether the depositor is not a partnership, rather than the individual A. B. P.</p> <p>Partnership.—A Bank Receiving Deposits from, and Doing Business with, a partnership consisting of an individual and a corporation, is estopped to deny the validity of the partnership, when sued by it for a deposit.</p> <p>Partnership—Death of Partner.—Code of Civil Procedure, section 1585, gives a surviving partner the right to continue in possession of the partnership, and to settle its business and account with the executor or administrator, and to pay over such balances to him as may be payable to him in the right of the decedent. Held, that, as the right of a corporate surviving partner to close up the partnership business after the death of its individual partner was not affected by the question of the legality of a partnership between a corporation and an individual, the estoppel of a bank receiving deposits from and doing business with such partnership to deny its legality was not terminated by the individual partner’s death.</p>

<p>Habeas Corpus.—A Petition for Habeas Corpus on the ground that the petitioner has been committed without reasonable cause, which does not set forth the evidence taken at the preliminary examination, is insufficient.</p>

<p>License—Mandamus to Issue.—Where an Action was Brought against the State Board of Barber Examiners to compel the issuance of a license to plaintiff, and during the pendency of the suit the act creating such board was repealed, and no successor in interest or obligation was provided for, the action abated.</p>

<p>Appeal—Remittitur—Motion to Recall.—May 3d an appeal was dismissed. May 25th a remittitur was issued. June 9th the remittitur was filed in the lower court. August 11th notice of motion to recall remittitur was served.. Affidavit of moving counsel stated that he left the city May 2d, and was absent nearly two months, and on his return one of the members of the firm associated with him in the case, and who had taken part in the appeal, was, and till the filing of the motion continued to be, absent from the city, and that he was unable to consult with him. Held, that excuse for not making the motion within the time fixed by law was not shown, so that the motion would be denied.</p>

<p>APPEAL from Superior Court, Madera County; W. M. Conley, Judge.</p> <p>Action by Timothy O’Neil against Alexander McLennan. Prom the judgment defendant appeals.</p>

<p>APPEAL from Superior Court, Los Angeles County; W. P. Fitzgerald, Judge.</p> <p>Action by Max Goldschmidt against Joseph Maier and another. From á judgment for defendants, plaintiff appeals.</p>

<p>Summons—Publication.—Where an Affidavit for the Service of summons by publication stated that the summons had been placed in the hands of the sheriff of the county for service, that the sheriff had returned the same with his return indorsed thereon to the effect that he could not find the defendant within the county, and that affiant did not know the residence of defendant, etc., it was sufficient to justify the court in ordering service by publication.1</p>

<p>APPEAL from Superior Court, Santa Barbara County; W. S. Day, Judge.</p> <p>Action by Mary Polk against the board of education of the city of Santa Barbara. Judgment for plaintiff. Defendant appeals.</p>

Budd, Judge. Proceedings for the appointment of a guardian for the person and estate of William S. Moss, an alleged incompetent. Prom an order appointing a guardian of his person and estate, the alleged incompetent and his guardian ad litem appeal.

Lawlor, judge of the superior court of the city and county of San Francisco, to compel him to settle a bill of exceptions.

Proceedings by Joseph B. Fuller for the probate of the will of Anna May Bills, deceased. From an order granting a new trial, Robert John Bills and another appeal. Reversed, and previous order reversing judgment vacated and remittitur recalled.

<p>APPEAL from Superior Court, Santa Barbara County; W. S. Day, Judge.</p> <p>Action by Ann Elizabeth McCaughey against M. B. Mc-Duffie and another. Judgment for defendants and plaintiff appeals.</p>

<p>APPEAL from Superior Court, City and County of San Francisco; F. H. Dunne, Judge.</p> <p>Lewis Chrones was convicted of the crime of obtaining goods under false pretenses, and appeals.</p>

<p>APPEAL from Superior Court, City and County of San Francisco; Carroll Cook, Judge.</p> <p>William B. Kennedy was convicted of murder, and from an order granting a new trial the people appeal.</p>

Bledsoe, Judge. Action by J. W. Mabb and others against Lyman Stewart and others. On appeal there was a decision for defendants, and, from an order allowing them to file a memorandum of their costs on appeal, plaintiffs appeal.

V. Coffey, Judge. Proceedings for the settlement of the account of the executors of the estate of Angelia R. Scott, deceased. From the order entered after hearing objections of legatees under will of deceased), the executors appeal. On motion to dismiss appeal. A. E. Bolton (Philip G. Galpin of counsel) for appellants; Houghton & Houghton, L. Seidenberg and R. P. Clement for respondents.

Chin Yuen and Yee Hung were convicted of robbery, and appeal. A. S. Newburgh for appellants; U. S. Webb, attorney general, C. N. Post, assistant attorney general, and Lewis F. By-in gton, district attorney, for the people.

<p>APPEAL from Superior Court, City and County of San Francisco; Thomas F. Graham, Judge.</p> <p>Action by F. M. Warren against James P. McGowan. From an order setting aside a judgment for plaintiff he appeals.</p>

<p>APPEAL from Superior Court, San Diego County; E. S. Torrance, Judge.</p> <p>Action by the people against Sarah J. McFadden. From the judgment defendant appeals.</p>

<p>APPEAL from Superior Court, San Bernardino County; Frank F, Oster, Judge.</p> <p>Clarence T. Miller was convicted of rape, and appeals.</p>

H. Hyland, Judge. Action by Stanislaus Mazor against Mary Springer and another. From a judgment for plaintiff, and from an order denying a motion for a new trial, defendants appeal.

A. Kelley, Judge. Action by Jules Alexander against T. W. Wilson, sheriff, and others. From a judgment for defendant Wilson for his costs only, disallowing a counterclaim, he appeals.

Oster, Judge. Action for the cancellation of an instrument by E. S. Lake against Phoebe Ann Owens, executrix of J. A. Owens, deceased, and another. From a judgment for defendants and an order denying a new trial plaintiff appeals.

APPEALS from Superior Court, Lake County; George W. Buck, Judge. Action by Edward Ridgley against the Abbott Quicksilver Mining Company of Illinois. Prom a judgment for plaintiff, and from an order allowing certain costs and fees, defendant appeals.

<p>Attorneys — Admission to Practice — Jurisdiction of Court.—■ Under act of February 15, 1905, vesting in the district courts of appeal created by constitution, article 6, as amended November 8, 1904, the exclusive power to admit persons to practice as attorneys and counselors in the several courts of the state, the supreme court has no original jurisdiction of an application for such admission; and a contested application originating in the supreme court will be transferred to the proper district court of appeal.1</p>

In the matter of the application of Frank W. Hovey for admission to the bar. Transferred from supreme court, ante, p. 202, 80 Pac. 234.

V. Coffey, Judge. In the matter of the estate of S. Antoldi, deceased. From an order denying a motion for a new trial in a contest of the will of deceased, Carolina Antoldi Casagrande and other contestants appeal.

<p>APPEAL from Superior Court, Mendocino County; M. S. Sayre, Judge.</p> <p>Action by Frankie White against John H. Wise and others. From a judgment in favor -of defendants, plaintiff appeals.</p>

<p>APPEAL from Superior Court, Kern County; J. W. Mahon, Judge.</p> <p>Suit by J. H. Berentz against the Kern King Oil and Development Company and others. Prom a judgment for plaintiff, defendants appeal.</p>

<p>APPEAL from Superior Court, San Joaquin County; Frank H. Smith, Judge.</p> <p>Action by W. H. Adams against Arthur Thornton. From a judgment for plaintiff, defendant appeals.</p>

<p>Game—Protection by Local Authorities.—Constitution, article 11, section 11, authorizing any county, city, or town to make and enforce within its limits such local police regulations as are not in conflict with general laws, delegated to the county supervisors, prior to the passage of constitution, amendment, article 4, section 25%, authorizing the legislature to divide the state into game districts, the power to legislate for the complete protection of wild game within the bounds of their respective counties.</p> <p>Game—Construction of Constitution.—Constitution, amendment, article 4, section 25%, authorizing the legislature to provide for the division of the state into fish and game districts and enact appropriate laws for the protection of fish and game therein, is to be construed with other sections of the constitution relative to the uniform application of the laws and the delegation of police power, and in such construction the more specific provision controls the general, without regard to the comparative dates; the different sections operating together, and neither working the repeal of the other.</p> <p>Game.—Constitution, Amendment, Article 4, section 25%, authorizing the legislature to provide for the division of the state into fish and game districts and to enact appropriate laws for the protection of fish and game therein, prevails over earlier conflicting provisions of the constitution; and, while laws previously in force continue in force until substituted by new legislation, legislation subsequently adopted must be in harmony with the amendment.</p> <p>Game—Mandatory Provisions of Constitution—“May.”—Consti-, tution, article 4, section 25%, providing that the legislature “may” provide for the division of the state into fish and game districts and “may” enact appropriate legislation for the protection of fish and game therein, is mandatory, and commands the legislature to enact necessary legislation touching the care and custody of game with reference to local conditions, which require special legislation for particular localities.</p> <p>Game—Powers of Supervisors.—Under constitution, amendment, article 4, section 25%, requiring the legislature to provide for the division of the state into fish and game districts and to enact appropriate legislation for the protection of fish and game therein, any previous authority existing in the legislature to delegate legislative power in reference to fish and game to counties is revoked, and, notwithstanding the failure of the legislature to obey the mandate of the constitution, a board of county supervisors is without authority to regulate, by ordinance passed after the adoption of such amendment, the hunting of game within the limits of the county.</p> <p>Game—Unreasonable Legislation.—In View of the Provision of Penal Code, section 626a, making it a misdemeanor to hunt, kill or destroy doves between February 15th and July 1st of the same year, a county ordinance declaring it unlawful to hunt or destroy doves within the limits of the county between the thirtieth day of June and the fifteenth day of August of each year, and between the fifteenth day of August and the sixteenth day of February of the year next ensuing, and thus leaving but one day in the year open to hunt doves, is unreasonable.</p>

Shields, Judge. Action by C. Schindler against Thomas Gr.een and another. From a judgment for plaintiff and from an order denying a new trial, defendants appeal.

<p>Building Contract—Workmanlike Construction.—Where there is no provision in a building contract as to how windows are to be placed, there is an implied agreement that they shall be placed in a workmanlike manner.</p> <p>Building Contract—Failure Fully to Perform,—Compensation.— Where a contractor fails to complete Ms contract, even though such failure is a trivial variance, he must have acted in good faith and honestly have endeavored to complete his work properly before he can recover therefor, if the trivial variance is such as to entitle the other party to damages to complete the work or make it as it should be.</p> <p>Mechanics’ Liens—Appeal—Modification of Judgment.—Where, in a suit to enforce a mechanic's lien, the lower court found that defendants owed plaintiff a certain sum and awarded Mm a lien therefor, and defendants found no fault with the amount awarded plaintiff, but appealed on the ground that plaintiff was not entitled to a lien, and all the evidence and proceedings had on the trial were brought before the appellate court for review, that court, on setting aside the judgment for error in giving plaintiff a lien, would not remand the case for a new trial, but would direct the lower court to modify the judgment by striking therefrom the provisions for a lien and to enter a personal judgment in plaintiff’s favor for the sum found due.</p>

M. Seawe-11, Judge. Action by the Albion Lumber Company against the California Bridge and Construction Company and others. From an order denying defendant’s motion for a new trial they appeal.

B. Nutter, Judge. Action by S. Prouty against Robert Adams and another. From an order granting plaintiff’s motion to strike certain matter from an amended answer, defendants appeal.

<p>Appeal—Subsequent Settlement—Dismissal.—Where, after the submission of an appeal, the subject matter of the action was settled by the parties, the appeal will be dismissed on respondent’s motion suggesting such settlement.</p>

<p>Assignment—Action by Assignee.—Where a Complaint Alleged that defendant was indebted to plaintiff’s assignor for services rendered at defendant’s special instance and request between certain dates; that the services were reasonably worth $1,050, which had not been paid, except the sum of $46; that the claim was assigned to plaintiff on a certain day, two days before the services were fully performed; and that the plaintiff ever since has been, and now is, the owner and holder thereof—stated a cause of action; it being immaterial when the assignment was made.</p>

<p>Application of W. W. Oates for a writ of habeas corpus.</p>

Action by Samuel Hewlett against W. M. S. Beede and others. Plaintiff petitions to transfer the cause from the court of appeal to the supreme court. Petition stricken from files.

<p>Appeal—Dismissal.—The Consideration of a Motion to Dismiss an appeal by an intervener, on the ground that he is not a party aggrieved, will be postponed, where some of the questions involved in the appeal will have to be considered in determining the motion.</p>

L. Rhodes, Judge. Action by W. D. Moody against G. Peirano. From a judgment in favor of plaintiff, and from an order denying defendant’s motion for a new trial, he appeals.

<p>APPEAL from Superior Court, Madera County; W. M. Conley, Judge.</p> <p>Action by the Archibald estate against A. H. Matteson. Prom a judgment for defendant, plaintiff appeals.</p>

<p>Habeas Corpus.—A Person Imprisoned Under an Indictment which does not charge a public offense may obtain his discharge on an application for a writ of habeas corpus.1</p> <p>Penal Code, Section 32, Defining Accessories as those who after knowledge of the commission of a felony conceal it from the magistrate or protect the person charged with the crime, states the common-law rule that a person must know that he is assisting a felon or else he cannot be charged as an accessory, and the mere neglect to inform the authorities that a felony has been committed is not sufficient, the word “conceal” in the statute including some affirmative act on the part of the person looking to the concealment of the felony.</p> <p>Obstructing Justice—Concealing Evidence.—An Indictment alleging that accused after and with knowledge that a third person had stolen certain property concealed the property stolen and concealed from the magistrate the commission of the felony, states no offense under Penal Code, section 135, punishing concealment of evidence about to be introduced, because it fails to state the purpose of the act.</p> <p>Indictment—Requisites.—Where an Act may Fall Within the definition of several offenses, according to the purpose with which it is done, it is essential to the statement of any offense that the purpose be set forth.</p> <p>Receiving Stolen Goods.—An Indictment Alleging That Accused, after and with knowledge that a third person, had stolen certain property, concealed the property and concealed from the magistrate the commission of the felony, states no offense under Penal Code, section 496, punishing the receiving of stolen property.</p> <p>Accessories.—An Indictment Charging That Accused after and with knowledge of the commission of a felony concealed its commission from the magistrate does not charge accused with being an accessory within Penal Code, section 32, defining accessories as those who after knowledge of the commission of a felony conceal it from the magistrate, as it does not allege the acts constituting the offense.</p>

Lennon, Judge. Action by Elizabeth A. Shepard against F. A. Robbins Press Works, in which A. D. Shepard, as administrator, was substituted as plaintiff. From a judgment for plaintiff, defendant appeals. On motion to dismiss the appeal.

<p>Appeal—Conflicting Evidence.—Findings of a trial court based on conflicting evidence will not be disturbed on appeal, if there is any evidence in the record on which they might be properly based.</p> <p>Drains—Liability for Expense.—In an Action to Recover one-fifth of the cost of a drainage ditch, evidence held to support a finding that defendant fully consented to the scheme and promised to defray her part of the expense involved therein.</p>

<p>Officers—Salary During Contest—Repeal of Statute.—Political Code, section 936, relative to payment of the salary of an office, title to which is contested by proceedings in court, is not repealed by the county government act, which contains no provision relating to the payment of the salary for the time of the contest.</p>

<p>APPEAL from Superior Court, Riverside County; J. S. Noyes, Judge.</p> <p>Action by the San Gabriel Valley Bank against the Lake View Town Company and others. From a judgment for plaintiff, defendants appeal.</p>

<p>APPEAL from Superior Court, Sacramento County; J. W. Hughes, Judge.</p> <p>Ejectment by Miranda S. Billings against James Pearson. Prom a judgment in favor of defendant, plaintiff appeals.</p>

George D. Collins was convicted of perjury, and pending the taking of an appeal he applied to a single justice of the supreme court for permission to visit the office of the county clerk for the purpose of examining the papers and records.

P. Conrey, Judge. Action by Henry J. Crocker and others against William M. Garland. Prom an order granting plaintiffs ’ motion for a new trial, defendant appeals.

<p>APPEAL from Superior Court, Solano County; L. G. Harrier, Judge.</p> <p>Action by James Plyler against the Pacific Portland Cement Company. From a judgment for plaintiff, defendant appeals.</p>

<p>Appeal—Conflicting Evidence.—A Verdict Based on conflicting evidence and sustained, by the trial court will not be reversed.1</p>

M. Conley, Judge. Action by Marie Kohler and others against Christiane Arndt and others to determine the construction of the will of Joseph Dominici, deceased. From a judgment for defendant and an order denying their motion for a new trial, complainants and others appeal.

<p>APPEAL from Superior Court, San Joaquin County; P. H. Smith, Judge.</p> <p>Action by Arthur M. Noble, as executor of Deborah H. Lee, against D. A. Learned and others. Prom a judgment for plaintiff, defendants appeal.</p>

Application by C. C. Williams for a writ of habeas corpus for his discharge from imprisonment on conviction of an alleged criminal offense. Petitioner discharged. Transferred to supreme court: See post, p. 309, 87 Pac. 568.

Application by C. C. Williams for a writ of habeas corpus for his discharge from imprisonment on conviction of an alleged criminal offense. The district court of appeal discharged petitioner: Ante, p. 301, 87 Pac. 565. Application for an order transferring the cause to the supreme court for determination.

Action by George M. Pinney against Homer Wilson and others. From an order granting plaintiff’s motion for á new trial, defendant Homer Wilson appeals.

<p>APPEAL from Superior Court, Alameda County; Henry A. Melvin, Judge.</p> <p>Action by the E. P. Yandereook Company against the Wilmans Company. From an order denying defendant’s motion for a new trial he appeals.</p>

<p>APPEAL from Superior Court, Santa Barbara County; J. W. Taggart, Judge.</p> <p>Action by Fred W. Jones against Isaac G. Waterman. From a judgment for defendant, plaintiff appeals.</p>

<p>Trial.—Findings are not Necessary in Relation to separate defeuses in support of which, no evidence was offered.</p>

<p>Quieting Title—Issues and Proof.—Where, in an action to quiet title, plaintiff alleged that the lot in question was formerly owned by a certain association, and defendants established that they were the successors in interest of such association, defendants, in order to entitle themselves to recover, were not bound to prove title in such association.</p>

H. Hyland, Judge. Action by Bernardo Higuera against David Del Ponte and others. From a judgment in favor of defendants Del Ponte and another, and from an order denying plaintiff’s motion for a new trial, he appeals.

<p>APPEAL from Superior Court, City and County of San Francisco; Frank H. Kerrigan, Judge.'</p> <p>Action by H. H. Tracy against the California Electrical Works. From a judgment for plaintiff, defendant appeals.</p>

<p>APPEAL from Superior Court, City and County of San Francisco; Frank H. Kerrigan, Judge.</p> <p>Action by H. H. Tracy against the California Electrical Works. From a judgment for plaintiff, defendant appeals.</p>

M. Finch, Judge. Action by David Prine against Margaret A. Duncan. Judgment for plaintiff, and from an order denying a new trial, defendant appeals. Motion to dismiss the appeal.

<p>Quieting Title—Evidence—Sufficiency to Support Finding.—In an action to determine the rights of the parties in certain land in which plaintiff prayed that she be declared the equitable owner of a one-sixth interest therein on certain payments being made by her, evidence examined, and held sufficient to support the finding of the court, except in regard to credit given plaintiff for a certain sum.</p>

<p>Application by J. W. Herbert and others for writ of prohibition to the superior -court, Fresno county; Hon. H. Z. Austin, Judge.</p>

P. James, Judge. Mandamus proceedings by A. B. Rothrock against Fred P. Baldwin, as clerk, and another, as president of the board of trustees of the city of Long Beach, to compel defendants to issue and deliver a warrant for labor performed for the city. From a judgment for plaintiff, defendants appeal.

<p>Appeal—Affirmance—Error not Shown.—Where, on an appeal, no brief is filed by either party, and no stipulation or order extending time to file briefs appear, and on call of the appeal there is no appearance by either party, no reason being advanced why the judgment should not be affirmed, and none appearing to the reviewing court, the judgment will be affirmed.</p>

<p>APPEAL from Superior Court, Los Angeles County; W. ' H. Clark, Judge.</p> <p>Action by the Los Angeles National Bank against Burdette Chandler and others. From a judgment for plaintiff, Thomas B. Clark and J. K. Skinner appeal. Judgment</p>

<p>Street Improvements — Validity of Contract.—A contract for street improvements providing that all loss or damage arising from the nature of the work to be done under the agreement, or from any unforeseen obstruction or difficulties which may be encountered in the prosecution of the work, etc., shall be sustained by the contractor, is void as tending to increase the cost of the work, and is therefore insufficient to support an assessment for work done thereunder.1</p>

<p>Appeal—Record.—In an Action on a Note Given for an Option to purchase lots, matters of testimony or exhibits constituting title or showing some kind o£ an agreement, as to which there is no mention in the record, cannot be considered on appeal from the judgment.1</p>

Application by Emma Agnes Richmond and others for a writ of certiorari, directed to Frederick W. Houser, as judge of the superior court in and for Los Angeles county, and others.

H. Kerrigan, Judge. Action for divorce by Rita A. Barron against George H. Barron. Prom an order denying a motion by plaintiff to dismiss a motion by defendant to set aside and vacate an order on motion of plaintiff, setting aside and vacating an interlocutory judgment for plaintiff, and from an order granting the motion of defendant sought to be dismissed, plaintiff appeals.

Gray, Judge. Action by V. Gianella against Charles Gray and others. Judgment for plaintiff restraining defendants from committing alleged acts of trespass, and from an order denying a motion to dissolve the injunction, defendants appeal.

Action by C. P. Stewart against O. H. Burbridge and another. From a judgment for plaintiff, and an order denying a new trial, defendants appeal. On motion to dismiss. Appeal from order dismissed, and motion to dismiss appeal from judgment denied.

Louis Glass was convicted of crime and appeals. Motion in appellate court for permission to file a certified copy of a demurrer to the indictment.

<p>APPEAL from Superior Court, Los Angeles County; Chas. Monroe, Judge.</p> <p>Action by William F. Somers against J. G. McMordie and others. From an order denying a motion for a new trial, plaintiff appeals.</p>

P. James, Judge. Action by W. H. Pedley, administrator of H. M. Praeb, deceased, against E. R. Werdin and others. From a judgment for defendant, the Pacific Electric Railway Company, rendered after sustaining a demurrer to the complaint, plaintiff appeals.

<p>Municipal Corporations—Officers—Offices—Creation—Executive Officer.—The city of Ukiah had power to create the office of “executive officer” by city ordinance, and to fix his salary.</p>

<p>Mechanics’ Liens.—A Complaint in an Action by a Materialman against the owner for materials furnished for a building, which alleges that the materialman agreed with the owner to furnish the materials, and that the owner agreed to pay a specified sum therefor on the completion of the work, followed by appropriate averments for the foreclosure of a materialman’s lien, states a good cause of action.</p> <p>Mechanics’ Liens—Enforcement Where Contract With Owner Void.—Under Code of Civil Procedure, sections 1183, 1184, providing that, where the contract between the owner and contractor is void because not in writing and not recorded, materials furnished by materialmen shall be deemed to have been furnished at the personal instance of the owner, and they shall have a lien for the value thereof, etc., a materialman furnishing materials to a contractor may aver a direct agreement with the owner if the contract between the owner and contractor is void.</p> <p>Mechanics’ Liens—Enforcement—Appeal.—Where the Suit by a Materialman against the owner to establish and foreclose a lien for materials for the construction of a building was tried on the theory that the law made a contract between the materialman and the owner for the materials, the uncertainty in the complaint arising from the fact that it alleged that the contract was made with the owner, while the recital in the notice of lien showed that it was made with the contractor, did not justify a reversal. *'</p> <p>Mechanics’ Liens—Enforcement—Issues and Proof.—One seeking to establish and foreclose a lien for materials furnished for the construction of a building must prove the contract substantially as set out in his notice of lien, where the terms thereof are controverted.</p> <p>Mechanics’ Liens—Complaint—Proof—Variance.—The variance between the complaint in an action to foreclose a materialman’s lien which alleges a demand for $780.70 and the proof showing a value of $859.67 and a payment of $60 is immaterial.</p> <p>Mechanics’ Liens — Foreclosure. — The Variance Between the Complaint in an action to foreclose a lien for materials which alleges a demand for $780.70, and the notice of lien demanding a lien for $19 more, is unimportant, in the absence of evidence of fraud.</p> <p>Mechanics’ Liens.—A Notice of a Lien by a Materialman for materials furnished in the construction of a building which alleged that the amount of the demand was $799.97 over and above legal set-offs, that the name of the person by whom claimant was employed and to whom he furnished the material was the contractor, and that the contractor agreed to pay a specified sum on completion of the work, showed an agreement to pay a definite sum for the materials.</p> <p>Mechanics’ Liens.—A Complaint in an Action to Establish and Foreclose a materialman’s lien which averred, in reference to the notice of lien, “a copy of which is hereto attached marked ‘Exhibit A,’ and made a part of the complaint,” that the claimant had in his verified notice of lien stated that the- recitals therein were true, and where the contract to pay a specified sum for the materials set forth in the notice of lien was denied, evidence of an agreement to pay the correct price was insufficient to justify a recovery.</p> <p>Appeal—Theory Below—Construction of Pleadings.—Where a party believed that evidence admitted without objection was within the issues, and there was an attempt to deny the contract sued on, the existence of the contract must be treated after trial as in issue.</p>

E. Gad-dis, Judge. Petition by Leutie C. Snowball to be appointed guardian of the persons and estates of Aldanita Ann Snowball and Carmen Snowball, minors, to which Winnette Squires filed objections, and prayed that she be appointed guardian of their estate. Prom an order granting the petition of the mother, Leutie C. Snowball appeals.

<p>In the matter of the application of students of the Hastings College of the Law for admission to practice.</p>

<p>Attorney—Suspension for Violating Bankrupt Law.—An attorney, with knowledge of the facts, who advises and takes steps to assist in a violation of the bankrupt law of the United States, whereby one creditor unlawfully secures a preference, is subject to suspension.</p>

<p>Executors and Administrators — Presentation of Mortgage Claims.—In an action of foreclosure on a mortgage against a decedent commenced in 1877, where the notice to creditors had been published in February, 1873, during which year the statute provided that a mortgage claim need not be presented, there is no necessity for a presentation, though at the time the mortgage was executed, and also during the last half of 1874, and all of 1875, the statute required presentation, and provided that no action could be maintained without it.</p> <p>Executors and Administrators — Presentation of Mortgage Claims.—The amendments of 1874 of sections 1493 and 1500 of the Code of Civil Procedure, in the matter of presentation of mortgage claims against decedents’ estates, did not have any retroactive operation.</p>

<p>Dedication.—Noble’s Alley in San Francisco was not dedicated as a public street.</p>