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All Reporters → cal → Volume 100

Opinions in cal Volume 100

The defendant was convicted of the crime of grand larceny, charged to have been committed April 9, 1892, in Tehama county, by feloniously stealing, taking, and carrying away one cow, the property of H. C. Wilson. The information was filed April 29,1892, and on May 4th the defendant was arraigned, and pleaded not guilty to the charge. On May 9th, by order of court, the trial of the case was set for...
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This case resembles Miller v. Wadding-ham, 91 Cal. 377. In fact the building contract is the same in both cases. Clubine contracted with the defendant, Newman, to build certain houses, six upon land he had contracted to purchase from Miller, and six on the land purchased from plaintiff. The buildings were alike, and all were building at the same time. Clubine had a contract with plaintiff to purch...
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This is an action for a divorce and a division of the community property. It is alleged that F. R. Warner, who is joined as a defendant with the husband of the plaintiff, received from the husband a fraudulent conveyance of certain real property, situated in San Bernardino county, with the intent to defraud the plaintiff of her community interest therein. The prayer is for a divorce, a cancellatio...
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The 44th section of the city charter of the city of Los Angeles provided a mode by which the funds of the citjr should be deposited in such bank of deposit of the city as would pay the highest rate of interest thereon, etc. (Statutes, 1889, p. 467.) Pursuant to such section of the charter a contract was, after due notice, on the tenth day of March, 1890, entered into by and between the plaintiff a...
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This is an action to recover for services rendered in the exchange of certain real estate. Judgment went for plaintiff, a motion for a new trial was made and granted, and this appeal is prosecuted from the order granting a new trial. The case was tried by the court, and the new trial w*as granted upon the ground that “ the decision was against law.” The court made the following findings of fact: “...
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In February, 1891, the plaintiff being largely indebted to Mrs. Adella B. Story, defendant, and also to other creditors, made an agreement with her as follows: “ Whereas, Mrs. A. B. Story has agreed to pay all the debts existing against the Story & Isham Commercial Company on the first day of February, 1891, including those payable to herself, and, whereas, said Story & Isham Commercial Company de...
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This action is closely connected with the action of Story & Isham Commercial Company v. *42Story et al., No. 19015, ante, p. 30, and was argued and submitted to the court at the same time. After the former action had been brought against the present plaintiff, she commenced the present action for the purpose, among others, of restraining the defendants from interfering with the property conveyed t...
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This action was brought by plaintiff to enjoin the defendant from shutting off or preventing the flow of water into certain mains and pipes of plaintiff. The court granted a nonsuit, and entered judgment for defendant; from which judgment, and from an order denying a motion for a new trial, plaintiff appeals. Each of the parties is a corporation organized under the general laws of the state for th...
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The plaintiff was sheriff of Tulare county from January 7, 1889, until January 5, 18.91. During that time no salary was attached to his office, *62but he was entitled to charge and receive for official services such fees as were allowed by law. On November 29, 1890, he presented to the board of supervisors for allowance a claim against the county for $770.40. Of this claim $284.70 was for “ miles ...
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This is an action to foreclose a mortgage. A decree in favor of the plaintiffs was entered upon the pleadings, from which Lee Stanley, the assignee in insolvency of the Columbus Brewing Company (a corporation), defendant, appeals. The admitted facts of the amended and supplemental complaint, coupled with certain affirmative allegations of the answer, show that the property described in the pleadin...
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This is an appeal by defendant from a judgment against him in favor of plaintiff for $1,000, and from an order denying a motion for a new trial. The facts found by the court are substantially as follows: On September 7, 1887, the parties made a written agreement, by which the appellant, Cressey, agreed to sell to respondent, Easton, a certain piece of land, upon these terms: Easton was to pay “ on...
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On the thirtieth day of December, 1892, W. C. Pingree died intestate in the county of Stanislaus, in this state. He was a resident of the county at the time of his death, and left an estate therein, consisting of real and personal property of the value of more than fifteen thousand dollars. He had no relatives or heirs-at-law residing in this state. On December 31st, the next day after the death o...
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Action to recover possession of a large tract of land situate in the county of Tehama and the value of the rents and profits thereof alleged to be fifteen hundred dollars. The answer of the defendant admits the plaintiffs’ ownership of the land and the withholding of the possession thereof, by defendant, but alleges that he was entitled to the possession by a lease from the plaintiffs, and denies ...
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This is a prosecution for obtaining money by false pretenses, and the defendant, having been convicted, appeals from the judgment. The indictment was demurred to on the ground that it does not state facts sufficient to constitute a public offense; and after conviction a motion in arrest of judgment was made on the same grounds. The indictment charges defendant: “With intent to defraud one John F. ...
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This action was brought to have a certain road in Placer county declared a public highway, and to enjoin defendant from collecting tolls thereon. Plaintiff had judgment; and defendant appeals from an order.denying a new trial. It is averred in the complaint that defendant claims and is exercising the franchise of collecting tolls for the privilege of traveling upon and passing over the road, and i...
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The transcript in this case contains two appeals, one from the judgment decreeing to plaintiff a divorce on the ground of adulter}», the other, from an order denying defendant’s motion to vacate and set aside the judgment. The complaint was filed April 6,1891, and the defendant served with process April 8,1891. On the twenty-first day of April, 1891, the defendant having failed to appear and answe...
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The plaintiff agreed with the defendant to harvest about twelve hundred acres of grain, for which the defendant was to pay him at the rate of two *95dollars per acre. After he had harvested sixty-five acres a dispute arose between them concerning the terms of the agreement, the defendant claiming that the plaintiff was to take certain mules at an agreed valuation of one thousand dollars in part pa...
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The defendant Caruthers appealed a judgment against him for the sum of seven thousand five hundred dollars, and gave to the plaintiff an undertaking, with the other appellants herein as sureties, to stay the execution of the judgment pending the appeal. The judgment was affirmed in this court, and, after the filing of the remittitur in the court below, judgment was entered against the sureties in ...
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The Pacific Bank suspended payment and closed its doors on June 23, 1893. On the 11th of August following seven of its creditors, representing an indebtedness of three thousand and sixty-three dollars and twenty-nine cents, filed a petition in involuntary insolvency asking for an order to show cause why it should not be adjudged an insolvent. The grounds of the petition were that the bank being in...
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On March 27, 1893, the board of supervisors of the city and county of San Francisco passed an order—designated as Order No. 2622—fixing the rates of compensation to be collected by any person or corporation furnishing water for family uses, for private persons, and for municipal and public purposes, during the year commencing July 1, 1893, pursuant to section *1251 of article XIV of the state cons...
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The defendant was tried upon an information charging him with embezzlement. After .deliberating six hours the jury returned into court and stated to the judge that they were unable to agree upon a verdict, whereupon they were discharged. When the case came on for trial again, the defendant interposed the pleas of former jeopardy and former acquittal, and in support thereof introduced in evidence t...
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Action of ejectment to recover the possession of two adjoining quartz lode mining claims, situate on the public mineral land of the United States, known as the “ Hathaway Claim” and the “Peck Claim,” each being particularly described in the complaint by metes and bounds; and also to recover three thousand dollars damages for the severance and removal from said claims of gold-bearing rock. The comp...
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The defendant was found guilty by a jury, and sentenced by the court to seven years imprisonment in the state prison, upon an information, for mayhem, committed upon one W. R. Jones on the nineteenth day of December, 1891. The defendant pleaded not guilty, and also pleaded that he had once been in jeopardy for the offense charged, and also a further plea that he had been convicted of the offense c...
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This is an action of ejectment to recover a parcel of land situate in the county of Los Angeles. Plaintiffs had judgment, from which and from an order denying a motion for a new trial defendant appeals. The parcel of land in question is part of a larger tract of which John O’Connor died seised July 21,1882. The entire tract was community property of John O’Connor and Maggie O’Connor (now Maggie Ph...
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This action was brought to recover the sum of seventeen hundred and seventy-five dollars, the reasonable value of services alleged to have been rendered at defendant’s instance and request. The court found that in a former action brought by plaintiff against defendant it was adjudged that plaintiff did not render to defendant at the latter’s instance or request the services alleged in the complain...
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Motion to dismiss the appeal. Judgment was rendered in this case in favor of thplaintiff, June 24, 1890, and an order was afterwards made denying defendant’s motion for a new trial. From this order the defendant appealed on the 29th of April, 1892. May 25,1893, the respondent gave notice to the appellant of this motion to dismiss the appeal, upon the ground that .the appellant had failed to file t...
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Action to recover damages for a personal injury to plaintiff, alleged to have been caused by the negligence of defendant. The cause was tried by a jury, whose verdict was for the plaintiff, assessing the damages at one thousand dollars, and judgment accordingly. The defendant has appealed from the judgment, and from an order denying a new trial. The case was here on a former appeal from a similar ...
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This is an appeal by plaintiff from, a an denying a motion for a new trial. The main history of the case is stated in the opinion of this court upon a former appeal (Montgomery v. Sayre, 91 Cal. 206); and it need not be repeated here. The first question in the case is whether or not Sayre, deceased, made the ten thousand dollar promissory note to appellant sued on as surety for W. S. Chapman. Resp...
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The defendant was charged with and convicted of the crime of forgery, and appeals from the judgment and also from an order denying a motion for a new trial. The appellant makes a great many points in his briefs, and elaborately argues them; and we will notice briefly what we consider the most important of such points. 1. Appellant contends that the information is fatally defective because the word...
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Breton died on the 4th of August, 1890, leaving a will, of which the following are the material parts necessary to be here considered: “First. I direct that all my just debts, the expenses of my last sickness, and my funeral expenses be paid from the first money that shall come to the hands of my executrix hereinafter named. “ Secondly. I will, bequeath, and devise to my beloved wife, Bertha Breto...
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This is an appeal taken to obtain a modification of a judgment in an election contest. *200It appears from the complaint that at the general election, November 8,1892, plaintiff and defendant were candidates, and the only persons voted for, for the office of supervisor of the third supervisorial district in the county of Modoc; and that at such election plaintiff received eighty-seven, and defenda...
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For the reasons given in the opinion filed by this department June 27, 1893, the judgment and orders appealed from are affirmed. The following is the opinion above referred to: Patrick Donohue died in San Luis Obispo county on the nineteenth day of February, 1892, leaving surviving his wife, the respondent, Kate Donohue, but no children, and also leaving an estate, consisting of real and personal ...
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The defendant as sheriff sold certain real property owned by plaintiff under an execution issued upon a judgment recovered against him. The complaint in this action, which is verified, alleges that this sale was made by defendant without giving the notice required by section 692 of the Code of Civil Procedure, and the plaintiff demands a judgment against the defendant for the statutory penalty of ...
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On September 26,1889, one Goldzier obtained a judgment in a justice’s court against Granger,the owner of a drug store. An execution was issued thereon, and on October 15, 1889,-the goods were sold *223by the constable under the execution to J. W. Husband and G. S. Turner for one hundred and ninety-six dollars, the amount of said judgment and costs. On October 1, 1889, the Jacob Unna Co., Redington...
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The defendant was convicted upon an information of having committed a felonious assault upon the person of one Marion Bradley Sparks, on the thirty-first day of May, 1892, in the county of Orange. During the impanelment of the jury one Moulton was examined as to his qualifications, and, having stated that he had frequently conversed about the case, and that from what he had heard had formed an opi...
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The complaint shows that the plaintiff, to whom the defendant had given a note and mortgage, purchased the property therein described at foreclosure sale, on March 12,1892, for the sum of $21,414.30 (being the full amount of the judgment, costs and expenses), and received the sheriff's certificate; that the premises had never been redeemed from the sale, and the time allowed by law for the redempt...
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Action to foreclose a deed of trust. The complaint substantially alleges that on June 22, 1881, the defendants, Henry Patison and his wife Emma J. Patison, executed to plaintiff’s assignor their promissory note for two thousand dollars, payable on the twenty-second day of June, 1885, with interest as therein specified; that at the same time they executed to the defendants, Hamilton and Coleman, as...
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Action to foreclose a mortgage. Plaintiff had judgment, and'defendant appeals. It appears that on the second day of October, 1877, the defendant, Henry Patison, was the owner and resided with his family on the premises in question; that on that day his wife, the defendant, Emma J. Patison, declared a homestead thereon, and that they continued to actually occupy the same up to the twenty-ninth day ...
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This is an action brought to recover damages for personal injuries sustained by the plaintiff while in the employment of the defendant as a road-master. The injuries were the result of a collision between a locomotive engine and a construction train upon which the plaintiff was riding. The engine which came in collision with the train was then being used in the work of defendant, and was driven by...
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William Stewart died in Lassen county on May 13, 1892, leaving what purported to be his last will, in which the respondent W. P. Hall was named as executor, and in which the daughters of the *248deceased, May M. Atteberry, aged twenty-four years, and Nellie Stewart, aged eleven months, both residents of said Lassen county, and his daughter Lena M. Stewart, aged twenty years, resident of Butte coun...
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The deed being a mortgage, plaintiff was not the owner of the land. (Civ. Code, secs. 24, 29; Smith v. Smith, 80 Cal. 325.) There was no sale to Schultz by plaintiff, and he could not have a vendor’s lien. (Civ. Code, sec. 3044.) A grantee is not estopped to deny the title of his grantor. (San Francisco v. Lawton, 18 Cal. 476; 79 Am. Dec. 187; Osterhout v. Shoemaker, 3 Hill, 518; Sparrow v. Kingma...
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Action to recover a balance of $825 alleged to be due and owing from defendant to plaintiff on a written building contract; and also $50 for extra work. The cause was tried by the court. The judgment was in favor of the defendant. The plaintiff has appealed from the judgment and from an order denying his motion for a new trial. By the contract the plaintiff agreed to repair an old house and to bui...
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The city of Fresno is a municipal corporation, organized in 1885, under the provisions of an act of the legislature approved March 13, 1883, entitled “An act to provide for the organization, incorporation, and government of municipal corporations.” It is of the fifth class named in the act, and has a board of trustees vested with power, among other things, “to provide fire-engines and all other ne...
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This is an appeal by petitioner from a judgment for respondent in a proceeding to obtain a writ of mandate. The petition avers that petitioner is a citizen, taxpayer, and resident of Sacramento county; that respondent is district attorney of said county; that McClatchy & Co., proprietors of the Bee newspaper, pre*266seated a claim of $1,567 to the board of supervisors of said county for advertisin...
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On March 3,1891, the board of supei’visors of El Dorado county passed an ordinance requiring “every person engaged in the business of raising, grazing, herding or pasturing sheep and goats, or sheep or goats,” in that county, to procure from the license tax collector a license therefor. The ordinance made it the duty of the license collector to collect the license, and further provided that he mig...
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The plaintiff, who is a married woman, brought this action to recover three hundred dollars from the defendant for personal services as a nurse, alleged to have been rendered by her to him. At the time these services were rendered the plaintiff and her husband were living together, and the defendant was an inmate of their house, but neither the plaintiff nor her husband was under any natural or le...
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Plaintiff sues for damages for personal injuries alleged to have been caused by defendant’s negligence. Plaintiff avers that he was employed by defendant as a laborer, and engaged under its direction in loading stone upon a car, and “ that the car on which defendant was loading stone, as aforesaid, on said day, was placed by said defendant, and stood during said day near and alongside, to wit: abo...
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The appellant, Thomas Orr, brought an action in June, 1891, against the respondents in the superior court of Siskiyou county, to restrain them from depositing any sand or gravel in ¡North Fork Cornish ditch, and from diverting the waters of Main Greenhorn creek from said ditch during a certain portion of each day; and immediately after the commencement of the action procured a writ of injunction t...
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This is an action to quiet title to portion of block 226 Western Addition to San Francisco. The defendant claims that it has been dedicated to the public use as a street. Whether it has or not is the only question involved. The defendant had judgment, and plaintiff appeals from the judgment and from the refusal of a new trial. It appears from the findings that in 1855 one Thomas Hayes owned a larg...
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Action to enforce specific performance of an agreement. The judgment was for plaintiff, and this appeal is upon the judgment-roll. The findings show that July 5,1883, Eliza D. Nichols was the owner of a tract of land in Solano count), bordering a natural watercourse known as “ Paddy Ranch creek.” She and her grantors had for ten years used the water of said creek for domestic purposes, and for irr...
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—This action was commenced in the superior court of San Bernardino county, and in due time the plaintiff moved that the place of trial be changed to another county, upon the ground that both of the judges of the court in which it was pending were disqualified to try it. The motion was heard before Hon. John L. Campbell, one of the judges of the said court, and denied, and from that order the plain...
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July 22, 1889, M. M. Keyes and Barbara Keyes, his wife, made their promissory note to John Cyrus for seven thousand one hundred and seventy-five dollars, and as security for its payment executed to him a mortgage upon certain lands in Sonoma county. M. M. Keyes died October 17,1889, and his widow Barbara was appointed administratrix of his estate and continued to act as such until August 10, 1891,...
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—The defendant was informed against for the crime of murder, and convicted for killing Oscar Crandall at the county of Tehama, on the twenty-fourth day of April, 1891. The appeal is from a final judgment, and from an order denying a motion for a new trial. On a former trial defendant was convicted of murder, and on appeal to this court a new trial was ordered. (People v. Mitchell, 94 Cal. 550.) C....
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Respondent has moved to dismiss the appeal herein, and to strike from the files the transcript on appeal. In preparing his notice of appeal counsel for the appellant entitled the cause Emma Butler v. Thomas Ashworth et al., and it is claimed that this invalidates the appeal. An affidavit has been filed in which counsel for appellant states that the mistake was caused by the fact that when he was e...
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Action to quiet title. The appeal is taken from a judgment in favor of plaintiffs, and the only question involved is as to the location of the western boundary line of the Rancho Paso de Robles. The rancho was surveyed in 1859, and its boundary lines, as far as it is necessary to examine them for the purposes of this case, are described as commencing at a post marked P. R. No. 3, then west 84 chai...
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Action to foreclose a mortgage executed by defendant to secure his promissory note for two thousand dollars made to his wife, Mrs. M. E. McClure, and by her assigned to the plaintiff, who is the son of defendant and his said wife. The only defense upon which any point made here is that there was no consideration for the note or mortgage. The judgment was in favor of the plaintiff, and defendant ap...
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This is an appeal from an order setting aside a judgment upon default. Within the time allowed by law for answering, the attorney for the defendant herein filed a demurrer to the complaint, but this demurrer was entitled Glenn Will v. The Lytle Creek Water and Improvement Company. It appears that the mistake was made by the attorney’s stenographer, and that there is a corporation named the Lytle C...
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This is an appeal from a decree settling an annual account of the administrator. Among the items allowed were the following: “Dr. Cook, medical services last illness, $45.50; Dr. Fergus-son, same, $10.50; Dr. Rogers, same, $50; Blodget & Dudley, drugs, $18.35; Mary Dougherty, nurse last illness, $25.” We think the objections to these items were properly taken by the contestant, and that they were ...
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—The plaintiff in this case is the Electric Light and Power Company, a corporation organized in this State, and the defendant is the city of San Bernardino, a municipal corporation of the fifth class. The plaintiff entered into an express contract for lighting the streets of the city of San Bernardino for one year following the first day of October, 1891, with forty-two electric lamps. The city ag...
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Appeal from a judgment and from an order denying a new trial. The defendant was convicted of the offense of obtaining goods by false and fraudulent pretenses. He was prosecuted under section 532 of the Penal Code, which denounces as criminal “ every person who knowingly and designedly by false or fraudulent representations or pretenses defrauds any other person of money or property.” On the trial ...
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The petition for a rehearing will be denied. It appears that on September 28, 1892, the petitioner, L. M. Wagner, was adjudged insolvent by the superior court of Los Angeles, and subsequently the court, in the matter of the insolvency proceeding, made a distribution of all of the estate of the insolvent which had come into the possession of the assignee, and granted to the petitioner here a certif...
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The defendant was found guilty of the crime of assault with intent to commit rape, and was sentenced by the judgment of the superior court to imprisonment in the state prison for a term of seven years. The appeal here is from the judgment, and is brought to this court upon the judgment-roll alone, without any bill of exceptions. The jury retired to deliberate upon their verdict at nine o’clock in ...
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The defendant was convicted of the crime of arson in the second degree, and sentenced to *371imprisonment in the state prison for the term of six years. From the judgment of conviction and the order denying his motion for a new trial this appeal is taken. Appellant relies for a reversal on two grounds: First. Failure to prove the alleged ownership of the burned building. Second. Insufficiency of t...
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The plaintiff seeks to recover damages from the defendants for injuries sustained by him from their wrongful acts. The complaint is in two counts, each of which is stated to be “ a separate cause of action” against the defendants. For each of these separate causes of action the plaintiff alleges that he sustained damage in the sum of two thousand five hundred dollars, and asks judgment for their a...
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The defendant was convicted of the crime of assault with intent to commit rape, and sentenced to imprisonment in the state prison for a term of years. This appeal is taken by him from the judgment and the order denying his motion for a new trial. It is contended by appellant that the judgment should be reversed: First. Because of the insufficiency of the evidence to sustain the verdict. Second. Be...
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Daniel J. Bergin, deceased, died in March, 1892, in the city of Dublin, Ireland, leaving a last will, which was duly probated in the proper court of that country. He left some personal property in the city and county of San Francisco, California. By said will certain persons were appointed executors, and the respondent herein, Thomas I. Bergin, who is a citizen and resident of San Francisco, in th...
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The defendant was tried for the murder of William G. Canfield. The jury returned a verdict of guilty of murder in the first degree, with imprisonment for life. This appeal is from the judgment rendered upon the verdict, and from an order denying defendant’s motion for a new trial. Appellant, at the time of the homicide, was a constable at Sanger, Fresno county. Late at night he went to a house of ...
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A judgment was entered denying probate to a certain instrument claimed to be the last will and testament of William C. Flint, deceased, upon the ground that at the time said instrument was signed the testator was not of sound and disposing mind, and also. that said deceased was unduly influenced in the making thereof. The appellant, Annie Flint, wife of the deceased, made a motion for a new trial,...
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Upon the former appeal herein (87 Cal. 480), it was held that the petition for the order of sale was sufficient, and that determination is conclusive of the question upon the present appeal. The subsequent permission of the court below to allow Mrs. Dear to file objections to granting an order of sale does not give her any right to renew the objections to the sufficiency of the petition. By the pr...
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In January, 1889, Matthew Connors died, owning an undivided one-half interest in certain real property, situate in the city and county of San Francisco, and leaving as his sole heir-at-law his father, Michael Connors. In June, 1889, Michael Connors also died, leaving as his sole heirs-at-law two daughters, Margaret O’Neill and Mary A. Connors. In November, 1889, Thomas Kirkpatrick was duly appoint...
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This is an action brought by livery and feed stable keepers to foreclose a lien upon a horse for the feeding of the animal. The horse was placed by defendant Woods in charge of plaintiffs, he agreeing to pay the sum of twenty dollars per month for his care and feed. At this time Woods was in. possession under a contract of purchase from the defendant, Adams, the true owner, the agreement between t...
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The defendant is administrator of O. W. Craig, deceased. Craig, in his lifetime, and Franklin Sears as sureties, had with G. C. P. Sears as principal made two promissory notes to one Wiclcersham for something over $4,000; and on December 9, 1889; Wickersham had recovered judgment on said notes against all three of said persons for $4,280.40 and costs. The plaintiff herein and said Franklin Sears h...
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On March 11, 1891, an act of the legislature was approved, entitled “An act to create the county of Glenn, to establish the boundaries thereof, and to provide for its organization” (Stats, of 1891, p. 96); and defendant claims that in pursuance of the *421provisions of that act the county of Glenn became duly organized. For some time past defendant has been exercising the ordinary functions of a c...
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This appeal is from an order setting apart a probate homestead to the widow of deceased. John Vance died testate, leaving a widow and two sons, issue of a former marriage. There were no minor children. The will was duly admitted to probate, but, subsequently, S. A. Vance, one of the sons of the testator, inaugurated a contest, and asked that the probate be revoked. The value of the estate exceeded...
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The respondent, Christena Henke, brought this action to recover $600. The complaint avers in substance that the defendant is a corporation, organized and having for its object the *431payment to its members of certain sums of money at stated times as periodical installment endowments; that on the eighth day of February, 1889, plaintiff became a member of said corporation defendant, and received fr...
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Proceedings to condemn certain lands for a public street in the city of San Luis Obispo. The jury assessed the value of the land taken from the defendants at $6,500. The plaintiff moved for a new trial, upon the ground that the verdict was not sustained by the evidence. The court below was of this opinion, but held that the evidence would support a verdict for $5,000, and made an order that if the...
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The appellants were accused by information of the crime of robbery, and upon a trial Woo Ah Woy and Chung Ki Foon were convicted. The appeal is prosecuted from the final judgment, and from an order denying a new trial. The first objection to the judgment is that the court erred in rendering judgment against the defendants in the case, “because the information upon which said defendants were tried ...
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The defendant, Pettit, was elected treasurer of the county of San Luis Obispo at the general election in 1890, for the term of two years, and held his office until January, 1893. June 2, 1891, the other defendants became sureties on his official bond for the faithful performance by him of all his official duties. The present action was brought to recover the sum of $2,316.19, which it is alleged h...
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This action is brought to procure a vacation, as to the plaintiffs, of a judgment of foreclosure, and all proceedings thereunder, including a sale of the mortgaged premises, to have a certificate of sale and a sheriff’s deed declared void, for an accounting by the purchaser and his successor in interest of the rents and profits, and for a decree allowing plaintiffs to redeem the undivided three-te...
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Appeal from a judgment in favor of defendant upon its demurrer to plaintiff’s complaint. The complaint in substance alleges that on January 2, 1893, the plaintiff delivered to the defendant at San Diego, for transmission and delivery, the following message: “ Col. A. G. Gassen, 501 Geary Street, San Francisco. Rennie will appoint. You wire him, please. Urgent. A. S. Kenyon;” that through the gross...
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Information charges the defendant Wells, jointly with Ollie Hutchings, alias Grace Gilbert, with the crime of forgery. Wells was tried separately, was convicted, and appeals from the judgment and from an order denying a new trial. Appellant contends for a new trial upon several grounds: Because the assistant district attorney, representing the people, in his opening address to the jury made missta...
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The appellant was convicted of the crime of embezzlement, and has appealed from the judgment and from an order denying his motion for a new trial. The indictment charges that at the county of Alameda one Richard G. Beggs, a clerk, agent, and servant of the “ Oakland Consolidated Street Railway Company” (a corporation), embezzled eight thousand five hundred dollars, the personal property of said co...
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The appellant was informed and convicted of the crime of an attempt to commit burglary, and he appeals from the judgment and from an order denying a new trial. There are only two points made by appellant which need special notice—. which points, by the way, are not discussed in the brief of respondent. 1. The charge is that appellant feloniously attempted to enter the house of one Patrick Kenny wi...
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This is an appeal from a judgment enforcing a mechanic’s lien for the value of labor performed, and materials furnished in repairing and altering certain buildings and structures on two lots of the defendant situate in the city and county of San Francisco; and comes here on the judgment-roll without any bill of exceptions. The cause was tried by the court without a jury; and the only points made b...
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This is an appeal from an order made by the court below during the pendency of an action for divorce, requiring the defendant to “pay the plaintiff the sum of seven hundred and ninety-nine dollars and sixty-eight cents for the purpose of defraying the costs and expenses of this action incurred by her up to this date.” The only question to be determined here involves the power of the court to make ...
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The demurrer to the complaint was' properly sustained. "Until distribution of the estate of William Walkerly, deceased, by the probate court, the respondents, Bartlett, Bacon, and Barker, hold the property of said deceased as executors of his will, and they must account to the probate court for all property of the estate of said deceased received by them as such executors, and for their management...
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CONTRACTS – CONSTRUCTION OF ROAD – NONPAYMENT OF INSTALLMENTS – RESCISSION – QUANTUM MERUIT. – Where, by the terms of a con-tract for the construction of a wagon-road, payments were to be made to the contractors upon the first of each month for the proportion of the road completed, the failure to make the payments as provided in the contract is a substantial breach of the contract, and gives the c...
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This action was instituted in November, 1892, by John A. Patchett and his four children to have their title quieted to a tract of land in San Luis Obispo county. The defendant corporation by its answer alleged title in itself to a strip sixty feet wide across the said tract, and pleaded in bar of the action the statute of limitations. The court below gave judgment against the defendant, from which...
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This is an action to foreclose a mortgage on real property. The complaint was filed and the summons issued on December 26, 1891. The summons was served upon the defendant on April 3, 1893, and on the 12th of that month defendant served notice upon the plaintiff that he would, on May 1,1893, move the court to dismiss the action, on the ground that the summons was not served within the time required...
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This is an appeal from a judgment in favor of the plaintiff in an action to foreclose a mechanic’s lien, and from an order denying defendant’s motion for a new trial. Defendant Samuels was the owner of a lot of land in San Francisco. He entered into a written contract with W. A. Van Dervort, the other defendant, by the terms of which the latter was to construct for him certain buildings upon said ...
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The information charges appellant, jointly with one Oman, with the crime of burglary. He was convicted, and appeals from the judgment and from an order denying a new trial. Oman, who had pleaded “ guilty,” was called as a witness for the prosecution, and testified that appellant had nothing to do with the commission of the alleged crime. The prosecuting attorney was allowed, on the ground of surpr...
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Response to petition for rehearing. The principal point decided in this case was that the county treasurer, when he has no notice of the illegality of the demand, or of the fact that no requisition has been made upon the auditor, or of any other fact to put him upon inquiry, may safely pay a warrant drawn upon the school fund if it is in due form and bears the genuine signature of the auditor or h...
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— The defendant Shorb was elected treasurer of the county of Los Angeles in November, 1892, and, having duly qualified, commenced to discharge the duties of that office January 2, 1893. The other defendants are his appointed and duly qualified deputies, who were acting as such before and at the time of the commencement of this action. The action is of the nature of a quo warranto information, and ...
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This is an application for a writ of review to annul an order of the court below adjudging petitioners guilty of contempt, for the disobedience of its judgment. It appears that the petitioners, Julia V. Stewart and W. B. Prentice, entered into a contract with one Hill, whereby they agreed to deliver to the latter or his executors, representatives, and assigns, at a certain point on the line of the...
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Judgment was entered against the plaintiff upon demurrer to his complaint, and this appeal is from that judgment. In May, 1882, Blythe claimed to be the owner and was in possession of a tract of land in Mexico containing about one million eight hundred thousand acres, and at that date entered into a contract with the plaintiff by which the plaintiff and his family should go from San Francisco to M...
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Defendant had judgment in this cause. Plaintiff moved for a new trial, and this appeal is prosecuted from an order denying such motion. The action is by plaintiff as administratrix of her deceased husband, Joseph Stevens, to recover damages for his death while in the employ of the corporation defendant, alleged to have been caused by its negligence. The defendant at the time of the injury complain...
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A general demurrer to the complaint in this action was sustained by the court below, and, the plaintiff declining to amend, judgment was entered in favor of the defendant, from which the plaintiff appeals. The facts stated in the complaint are in substance as follows: Under the provisions of section 8 of article XI of the constitution of this state, a charter for the city of San Diego was framed b...
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Judgement was rendered and entered in this action in favor of the plaintiff October 7, 1890, .and the time for serving and filing a notice of intention to move for a new trial was extended by stipulation and by an order of the court until January 5, 1891. January 3, 1891, the defendants served upon the plaintiff a notice of their intention to move for a new trial, stating therein that it would be ...
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This action was brought to recover by Almon Wheelock, as the executor of the last will of Albert G. Wheelock, the sum of seven thousand and forty-five dollars- and eighty-nine cents, moneys received on deposit by the defendant San Francisco Savings Union from Albert G. Wheelock in his lifetime. Defendants had judgment. Plaintiff thereupon moved *581for a new trial, which motion was denied, and fro...
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Appeal from the judgment. A simple question of law is presented by this appeal. The learned judge of the trial court, in an opinion which respondent has printed in his brief, presents that question thus: “Will the lien of an unrecorded mortgage, given to secure a loan, take precedence over an attachment or judgment lien obtained after the execution of the mortgage ? There is no law in this state w...
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The demurrer to the complaint was properly overruled. In an action like this, to recover damages resulting from the alleged negligence of a defendant, a general allegation of negligence upon the part of the defendant is sufficient. “The negligence is the ultimate fact to be pleaded, and is not a legal conclusion.” (Bliss on Code Pleading, sec. 211.) Nor was it incumbent on the plaintiffs to allege...
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This is an appeal by Miranda W. Lux, widow of Charles Lux, deceased, from an order of the superior court made May 13 and filed May 17, 1892, allowing her the sum of one thousand dollars per month, as an allowance for her support, from August 30, 1888, to November 16, 1891. Charles Lux died testate in March, 1887, leaving an estate of the value of four million dollars or more, of which ninety per c...
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This is an appeal by the executors of the estate of Charles Lux, deceased, from an order settling the first and second accounts filed by them in the course of the administration of the estate. Many of the questions arising upon this appeal were involved in the Estate of Lux, No. 15346, ante, p. 593, recently decided by this court, and were passed upon in the opinion in that case. It was there held...
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The superior court made an order settling certain accounts rendered by the executors of the estate of Charles Lux, deceased, to which accounts exceptions had theretofore been filed by certain devisees named in the will of the deceased. This appeal is taken by said devisees, and is from so much of the order as fails to charge the executors interest upon money which the court found was improperly pa...
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On July 3, 1890, the plaintiff entered into a written agreement with the defendants, J. B. Livingston and W. H. Clarke, under the firm name of Livingston, Clarke & Co., whereby he leased to them the steamer Farallón for a certain time, commencing *619July 8, 1890, and upon certain terms and conditions. And, to secure performance of the terms of the agreement on their part, the said defendants deli...
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This action was brought to foreclose a mortgage for thirty-five thousand dollars and interest, executed July 8, 1891, in favor of plaintiff, by Emery D. Howe and Ellen D. Thurber, upon a ranch situate in Contra Costa county. The mortgage purported to convey the land, etc., with the “rents, issues and profits thereof,” and was acknowledged and duly recorded July 10, 1891. The Earl Fruit Company (a ...
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This action was brought by the plaintiff to subject certain real property in the city of San Francisco to the payment of a judgment obtained by him against the defendant, Joseph Brown, on April 5, 1887, for the sum of $8,334.06 and costs of suit. It is alleged in the complaint that this real property was on October 3, 1883, conveyed by the judgment debtor to the defendant A. M. Brown, with intent ...
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This action was originally brought by the plaintiff against the defendants, Campbell and Kent, to recover the sum of two thousand five hundred and forty-nine dollars and fifty cents, surplus in their hands, arising upon the sale of certain real property conveyed to them in trust to secure an indebtedness of plaintiff to the San Francisco Savings Union. These defendants answered admitting that afte...
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This is an action by real estate brokers to recover commissions for negotiating a sale of a tract of land situated near the city of Stockton. The owners thereof gave Gaman & Lyon, real estate brokers of San Francisco, the following writing: “ Stockton, September 17, 1887. “We, F. T. Baldwin, B. F. Langford, and John D. McDougald, do hereby constitute and appoint Gaman & Lyon, of 339 Kearny street,...
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This case was decided in Department, but a rehearing having been ordered, it is now before the court in Bank. The appellant was convicted of the crime of forgery, and prosecutes this appeal from the judgment and order denying his motion for a new trial. It is insisted that the facts charged in the information do not constitute the offense of forgery, and that is the only matter relied upon for a r...
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This is an action for an injunction, and to recover damages for an infringement of plaintiffs’ trademark and labels. The facts found by the court below are substantially as follows: In the year 1887, plaintiffs commenced to manufacture and sell a new and valuable medicinal compound or beverage, and adopted and used in con- *676and Iron.” By reason of the superior character of the medicinal constit...
Views: 8

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