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All Reporters → cal → Volume 129

Opinions in cal Volume 129

This is an application for a writ of prohibition to prevent the respondent court and the judge thereof from enforcing obedience to a decree and writ of injunction issued pursuant thereto. From the petition and papers it appears that on July 18, 1899, one J.C. Green, as plaintiff, commenced an action in said superior court against the said board of education and the members thereof, to obtain an in...
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Action to recover damages for taking possession of a strip of land one hundred feet wide and constructing thereon a railroad track. Defendant demurred to the complaint for want of sufficient facts, and also averring that *Page 9 the action is barred by sections 318 and 319, and subdivision 2 of section 338, and subdivision 1 of section 339 of the Code of Civil Procedure. The demurrer was sustaine...
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Ejectment. The defendant had the verdict of the jury and judgment thereon. Plaintiff appeals from the judgment and from an order denying his motion for a new trial. Appellant claimed title to the premises under an execution sale made upon a judgment rendered in the case of McCombe v. Green and Wife. It was admitted *Page 13 that a United States patent had issued to said Green for the land in cont...
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The transcript shows two appeals by A.C. Freese, administrator of the above estate – one from an order of the court made September 26, 1898, and filed on the 30th of said month, settling the final account of the administrator; and the other, made and filed at the same time, setting apart the residue of the estate to the minor heirs, William E. Hickey and Francis T. Hickey. No objection is made to ...
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Among other things, it is alleged in the complaint that plaintiff has continuously, since the first day of June, 1894, at the instance and request of defendant, kept and cared for the insane wife of defendant, providing for her suitable boarding, lodging, clothing, washing, medicine, and medical and other attendance, the reasonable value of which is twelve dollars per week, and one hundred dollar...
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Plaintiff sues to recover for boarding and clothing the insane wife of defendant from June 28, 1891, to June 2, 1894. Plaintiff recovered judgment, and this appeal is from the judgment and an order refusing a new trial. The first contention is that the evidence was insufficient to sustain the finding that the service was rendered on the credit of defendant. It is argued that it does not appear tha...
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This is an action brought by plaintiff against defendant Loofbourow for printing and binding a certain book, and against defendant Spencer as guarantor that Loofbourow would perform his part of the contract between him and plaintiff touching the printing, etc., of said book. Judgment went for plaintiff against both defendants for six hundred and sixty-four dollars and fifty cents, the amount due ...
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The action was brought against defendant McInerney to dissolve a copartnership, and for an accounting. Plaintiff also asked that certain property be declared to be partnership property, and be distributed between plaintiff and defendant as partners. McInerney answered and denied the existence of the partnership and all allegations made by plaintiff in respect thereto. In this state of the pleading...
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Information for assault with intent to commit rape. The jury returned a verdict of guilty as charged in the information, and judgment was entered thereon that defendant be imprisoned at Folsom for the term of eight years. The appeal is from the judgment and from the order denying defendant's motion for a new trial. 1. It is contended that the verdict was contrary to the evidence. It appears that t...
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The court sustained a demurrer to the complaint, and judgment was entered for defendants. This appeal is from the judgment and for the purpose of reviewing the order sustaining the demurrer. The action was brought by plaintiff, as a taxpayer, for the purpose of enjoining the board of supervisors of Los Angeles county from allowing or ordering a warrant drawn, the auditor *Page 37 of the county fr...
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Action to quiet title. Findings and judgment were for the plaintiff, and the defendant appeals from the judgment and from an order denying a new trial. The complaint was in the usual form, alleging that the plaintiff is the owner in fee simple of the described lot, that defendant claims an interest therein adverse to the plaintiff, and that her claim is without right, etc. The answer denied these ...
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This is an action on a promissory note and to foreclose a mortgage executed by the appellant Shortridge to the defendant Herbert S. Hall, who indorsed and delivered said note and assigned said mortgage to plaintiff. The defendants, other than Shortridge, made default. Shortridge demurred to the complaint for want of facts and on the ground that it was uncertain in its allegations as to nonpayment....
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Appeal from a judgment for intervenor in a suit for the recovery of personal property levied upon by defendant, as sheriff, under attachment in favor of plaintiff against third party. The findings are unusually full and explicit, but in the conclusions of law the word "plaintiff" is inadvertently used for "intervenor," which is the ground urged for reversal. (Doughertyv. Ward, 89 Cal. 81.) We reco...
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Appeal from a judgment for intervenor in a suit for the recovery of personal property levied upon hy defendant, as sheriff, under attachment in favor of plaintiff against third party. The findings are unusually full and explicit, hut in "the conclusions of law the word “plaintiff” is inadvertently used for “intervenor,” which is the ground urged for reversal. (Dougherty v. Ward, 89 Cal. 81.) We re...
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Appeal from a judgment for intervenor in a suit for the recovery of personal property levied upon hy defendant, as sheriff, under attachment in favor of plaintiff against third party. The findings are unusually full and explicit, hut in "the conclusions of law the word “plaintiff” is inadvertently used for “intervenor,” which is the ground urged for reversal. (Dougherty v. Ward, 89 Cal. 81.) We re...
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Claim and delivery to recover possession of five hundred sacks of wheat, or their value. The defendant had judgment and the plaintiff appeals therefrom and from an order denying his motion for a new trial. The only point made by appellant and upon which he rests his case is that the evidence is insufficient to justify the decision. Bespondent makes the point that the sufficiency of the eviden...
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The suit was brought to enjoin the defendant from diverting water flowing in a pipe to the land of the plaintiff, and to quiet plaintiff's title to the same. The judgment was for the defendant, and the appeal is from an order denying a new trial. The plaintiff is the owner of a piece of ground known as the Doyle place, which for many years has been supplied *Page 48 with water by means of an iron...
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Plaintiffs sued to recover a balance due upon the following contract alleged to have been entered into by plaintiffs and defendant on the day of its date: "Agreement between the Pacific Can Company and Fontana Co., both of the city and county of San Francisco. "That the former shall sell to the latter two hundred and fifty (250) shares of the capital stock of the Pacific Can Company, at two hundr...
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Appeal from an order denying defendant's motion to dissolve an injunction pendente lite restraining defendant "from stopping the flow in the North Riverside and Jurupa canal of the water of the hereinafter named persons and plaintiffs, and from interfering in any way with the distribution *Page 60 and delivery of the said water to the said persons, and from in any way preventing the said persons ...
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This is a mechanic's lien foreclosure case. The defendant Walker, the owner of the building, had judgment on the theory that his contract with the contractors, his codefendants, was valid under the statute, and that a memorandum thereof had been duly recorded, and that nothing remained due thereunder to the contractors. The plaintiff appeals *Page 64 from the judgment and from an order denying it...
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[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 70 This case was decided in Department, the opinion being written by Mr. Commissioner Britt. A rehearing was granted solely because it was thought by some members of the court that the complaint stated a cause of action for damages for deceit – it having been...
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James Porter died intestate in the county of Sonoma in November, 1897, leaving an estate consisting of real and personal property, the latter being more than sufficient to pay all debts and liabilities of the estate and the costs and expenses of administration. He left, however, no known heirs, relatives, or other person who would be entitled to inherit his estate, and the court so found. The cour...
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The appeal in this case is taken from the judgment, as well as from the order denying plaintiff's motion for a new trial. This judgment was entered on the twelfth day of August, 1897, and the notice of appeal served August 2, 1899, nearly two years after the rendition of the judgment. This court, therefore, cannot entertain the appeal from the judgment. The order denying the plaintiff's motion for...
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The plaintiff is a national banking association, organized and existing under and by virtue of the laws Of the United States, and having its principal place of business at the city and county of San Francisco. It brought the present action to recover from the defendant the sum of eight thousand two hundred and ninety dollars, paid by it under protest for taxes assessed and levied upon certain pers...
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I concur in the judgment and generally in the foregoing opinion, but an unwilling to assent to the view intimated therein that Judge Ogden could have called in another judge of his own selection without the consent of the parties. The course that should have been pursued was that originally proposed by Judge Ogden, viz., to send the cause to Judge Green's department, not because the case was gover...
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Action against defendants as sureties on a bond executed by one A.J. Newton for the faithful performance and accounting to plaintiffs by him as consignee of certain goods. Plaintiffs had judgment, and defendants appeal from an order denying their motion for new trial. 1. It is contended that the complaint does not state a cause of action because it fails to show that plaintiffs were *Page 109 cop...
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Action for personal injury. Jury trial was waived;- the trial was -by the court, and defendant had judgment. The appeal is from the judgment and frorh the order denying plaintiffs motion for a new trial. The injury occurred at the crossing of Aliso and Alameda streets in the city of Los Angeles. A team of horses, owned by defendant, was being *115 ■driven by an employee of defendant along Alame...
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Defendant was convicted of an assault with intent to commit rape. He appeals from the judgment and from an order denying his motion for a new trial. The evidence shows that the person upon whom the alleged assault was made was a girl under sixteen years of age; that she went voluntarily to the room of defendant by previous appointment, and made no resistance. 1. It is claimed that the verdict is c...
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Action by an employee against his employers to recover damages for personal injury claimed to have been sustained through their negligence. The defendants claimed that the injury was the result of plaintiff's carelessness. The cause was tried by the court and plaintiff had judgment. Defendants move for a new trial, and the appeal is from the order denying the motion. Some objections are made to th...
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The controversy in this action grows out of a schism in the Church of the United Brethren in Christ, occurring at the general conference of the church at York, Pennsylvania, in the year 1889. The Church of the United Brethren originated in a voluntary association of Protestants of various denominations at some period during the eighteenth century; and its original creed was simply that of the orth...
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Divorce on the ground of extreme cruelty. Plaintiff had judgment, from which defendant appeals. She also appeals from sundry orders hereinafter referred to. There is no brief for respondent. The record is in a very unsatisfactory condition, and it has been with much difficulty that we have been able to unravel its perplexities and ascertain just what alleged errors are properly before us. The reco...
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Suit to determine the right to the water running in a stream known as "Rattlesnake creek." Judgment awarding one-half the water to plaintiff and one-half to defendant. Plaintiff made a motion for a new trial, which was denied, and he appeals from the judgment and order denying his motion. Defendant in his answer claimed and set forth that he had been in the adverse possession and use of all the wa...
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This action was brought by the administrator with the will annexed of the estate of Mary B. Toland, deceased, for the purpose of having the probate court instructed as to what distribution shall be made of the estate *Page 150 under the will. There is a general averment in the complaint that differences exist between plaintiff and the defendants and among the defendants themselves, by reason of w...
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The respondent has moved to dismiss the appeal herein upon the ground that the undertaking on appeal provides only that the appellants will pay all damages and costs which may be awarded against them on the appeal, and does not contain the clause "or on a dismissal thereof," *Page 158 which is required by section 941 of the Code of Civil Procedure. Before the hearing upon the motion the appellant...
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This is an action on a note and to foreclose certain grant deeds of land given by way of mortgage to secure the payment of said note. Defendants appeal from the judgment. The complaint shows that defendants jointly executed to plaintiff a note for thirty-three thousand one hundred and nineteen dollars and fifty-eight cents, and thereafter, as security for the payment of the same, defendants convey...
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This is an appeal from an order dissolving an attachment. From the affidavits and exhibits used on the motion to dissolve the attachment, embodied in the bill of exceptions, it appears that the defendants reside in and do business in the city and county of San Francisco; that the plaintiffs reside in the city of New York, and are engaged in the business of manufacturing hats in said city; that on ...
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The demurrer to the complaint was sustained, and the appeal is taken from the judgment entered thereon. The sufficiency of the complaint is the only question presented on appeal. It is contended on the part of the appellants that the action is for the recovery of damages for a conspiracy between defendants to injure plaintiffs. The case cited and relied upon to support this theory is Dreaux v. Dom...
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This is an appeal by the contestants, claiming to be heirs of said deceased, from an order and decree of distribution distributing the whole of the residue of said estate to respondent Mary T. Wall, and also from an order denying the motion of said contestants for a new trial in said matter. W.T. Sheid died intestate March 9, 1896, in San Luis Obispo county, leaving an estate therein consisting of...
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It is alleged in the complaint herein that the defendant represented to the plaintiff that a certain street sweeping machine was in every respect first-class and well adapted for sweeping streets, and had been thoroughly tested as such and found satisfactory; that by reason of such representations the plaintiff was induced to enter into a contract with the defendant, whereby the defendant promised...
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In March, 1897, the defendant, under and by virtue of a franchise granted to it by the city of Los Angeles, constructed and has since maintained and operated by electricity a double track street railroad along several streets in said city, including a portion of Seventh street. In August of that year the plaintiff, to whom the city had previously granted a franchise to construct and operate a str...
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Action to enforce the lien upon real estate created by a contract entered into by plaintiff and her husband to live separate and apart. Plaintiff had judgment, from which defendant appeals. The record is here on bill of exceptions. On April 9, 1891, plaintiff and her husband, H.M. Higgins, entered into an agreement to live separate and apart, and H. agreed therein to pay plaintiff a certain annuit...
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Respondent insists that the appeal in this case should be dismissed on the ground that there was no service of the notice of appeal. The appeal is taken from an order made by the Superior court of Mendocino county, September 21, 1897, setting aside so much of a sale under a decree of foreclosure and sale as embraced the land included in the mortgage of Costigan and not included in the mortgage bel...
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Action for the foreclosure of a mortgage. The appellant was made one of the defendants under the allegation that he claimed some interest in the premises, hut that his claim is subordinate and subject to the lien of the mortgage. The mortgage was executed to the plaintiffs assignor March 30, 1893, and on March 7, 1894^ the mortgagor conveyed the mortgaged premises to the appellant’s codefendant, ...
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The plaintiff seeks by this action to recover from the defendant as a stockholder in the Standard Gold Silver Mining Company, a corporation, a certain sum of money as and for his proportion of the indebtedness of the corporation. Judgment by default for the amount claimed was entered against the defendant, and he has appealed therefrom upon the ground that the complaint fails to state a cause of ...
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On the trial of the main case (S.F. No. 1343) plaintiff's counsel asked leave of the court to amend his complaint in certain particulars, and, there being no objection, the court allowed the amendment to be made. The amendment consisted in changing one to four in the second count, so that the claim for services would be four thousand seven hundred and fifty dollars, instead of seventeen hundred an...
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This case seems to be on all fours with Perkins v. Fish,121 Cal. 317. Plaintiff held a certificate of membership in the Mutual Endowment Association, which assumed to be and was doing business in the style of a corporation. The association went through the form of incorporation, and the defendants, who were its directors, still contend that it was a corporation de jure and de facto. Articles of in...
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This is a proceeding in equity to set aside an order granting a family allowance in the matter of the estate of Theodore L. Schell, deceased, and an order authorizing the sale of the real property of said estate for the purpose of paying said family allowance, and for general relief. From the facts found the court, as a conclusion of law, held that the mortgages given to secure the indebtedness he...
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This is an action for damages arising from an alleged breach of a contract concerning water rates. The plaintiff had judgment in the court below for the sum of seven thousand two hundred dollars and costs of suit. The appeal is taken from said judgment and from the order denying defendant's motion for a new trial. The first point made by the appellant is that the contract in question is void for u...
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Appeal from an order refusing to dissolve a. preliminary injunction restraining the defendants “from entering in and upon the mining claim of the plaintiff [called the “Marryatt mine”], and from mining and working thereon, and from taking and removing any gold and gold-bearing earth and rock therefrom, and from in any manner trespassing thereon.” The injunction was issued without notice on the ...
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Suit to quiet title. The complaint sets forth that in the year 1884 Gaetano Beronio, Sr., was the owner of the land involved in the action, and built thereon a two-story brick building for the purpose of conducting therein a general merchandise store and hotel. He was at that time unmarried, and with his servants conducted said business and hotel until December 29, 1886, when he married, and there...
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Action on promissory note. Defendants demurred to the complaint; the demurrers were sustained, and plaintiff declining to amend, defendants had judgment, from which plaintiff appeals. The grounds of the demurrers were insufficiency of facts, defect and nonjoinder of parties defendants, and the statute of limitations. The note sued upon was in form the joint note of eight persons. Three of these jo...
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This is an appeal from an order refusing to hear the motion of the defendants to tax the cost bill filed by the plaintiff. The defendants within the proper time served on the plaintiff a notice that they were dissatisfied with the cost bill filed by the plaintiff, and that they would move the court to strike out certain items therein, and to retax said costs. The hearing of the matter was continue...
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Motion to dismiss the action and judgment of dismissal thereon, from which plaintiffs appeal. The complaint was filed August 29, 1890 the object of the action being to have the judgment referred to in the complaint set aside and to have the court grant the water company plaintiff herein, a new trial. On April 2, 1891, defendants appeared *Page 248 by general demurrer. The hearing of the demurrer ...
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The defendant appeals from the judgment and from the order denying a new trial. In support of its appeal it is contended on behalf of the appellant: 1. That some of the material findings of fact are unsupported by the evidence; 2. That the court erred in deducing erroneous conclusions from the facts found. The action is based upon a policy of life insurance. The policy recites that the said compan...
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Defendant was informed against by the district attorney of Sacramento county for the crime of murder and was tried and convicted of murder, in the first degree. He thereupon moved for a new trial, which was denied, *Page 260 and he was sentenced to death by hanging. From the judgment and order overruling his motion for a new trial the defendant prosecutes this appeal. The evidence discloses that ...
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Action on promissory note for five hundred dollars, dated July 1, 1895, and payable six months after date, executed by defendant Hutson to defendant the mining company, and sold to plaintiff before its maturity. Plaintiff had judgment, from which defendants Maud and Newman appeal and come here on bill of exceptions. It appears that plaintiffs sent the note to the Orange Growers' Bank of Riverside ...
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Action to enforce a street assessment lien. Plaintiff recovered judgment, and defendant has appealed from the judgment and from an order denying his motion for a new trial. The common council of the city of San Diego ordered that the portion of Fourth street, on the east side of the center line *Page 274 thereof, from the south side of Ivy street to the south side of University avenue, be graded ...
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Appeal from an order denying a motion to change the place of trial. Plaintiff is the proprietor of a water ditch, situate partly in Fresno county and partly in *Page 278 Kings county, through and by means of which it takes and supplies to its stockholders water which it has appropriated from Kings river for the irrigation of their lands situated along the line of the ditch. In 1894 the defendant ...
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The plaintiffs are the surviving widow and infant child of Alexander D. Cameron, deceased, and recovered judgment herein against the defendant in the sum of ten thousand dollars damages for the death of the deceased, resulting from the negligence of the defendant. From *Page 280 this judgment and an order denying a new trial the defendant has appealed, bringing the case here upon the judgment-rol...
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The appellant, as plaintiff, sues as assignee of a contract for contingent fees in a divorce suit. The contract in question is as follows: "I hereby retain and employ J.H. Long, Esq., as my attorney, to act for me in all matters arising or growing out of any divorce proceedings or separation with my husband, M.T. Freitas, or in regard to the settlement of may community property rights, or to act f...
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Appeal from a judgment against the plaintiff and from an order denying a new trial. The suit was brought to recover various sums of money, set up in as many counts of the complaint, and aggregating twenty-eight thousand five hundred and twenty-eight dollars and forty-four cents. One of these counts was for a small amount alleged to be due on a promissory note made by the defendant corporation to t...
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The court below sustained defendant's demurrer to the complaint, and, the plaintiff declining to amend, judgment was entered thereon in favor of defendant, and the question presented on this appeal is as to the sufficiency of the complaint. Among other things, it is alleged that the plaintiff is the owner of certain property in the city of Los Angeles known as the Henne block, and that for the fis...
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This case is before us on the application of the appellant for a supersedeas. The purpose of the action is to determine certain water rights as between the parties. Plaintiffs had judgment, from which defendant appealed, and gave the statutory appeal bond in the sum of three hundred dollars. By the judgment one of the plaintiffs was *Page 301 given the right to lay a certain pipe line through pre...
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The action was brought to recover money alleged to be due by written contract. The judgment was for the plaintiff. The points relied on for reversal are insufficiency of the complaint and of the findings, and error in sustaining demurrers to two affirmative defenses set up in the answer. In the view we take of the case it will be unnecessary to consider any but the last of these grounds. At the da...
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The defendant was tried upon an information charging assault with intent to commit murder. He was convicted of the crime of assault with a deadly weapon. Upon appeal to this court it was held that the verdict was a nullity, as the offense of which the defendant was convicted was not an offense included within the information upon which he was tried. (People v. Arnett, 126 Cal. 680. ) Upon the seco...
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Judgment herein was rendered in favor of the plaintiff and against the defendant April 23, 1897, and was entered of record April 26th. May 25th the defendant gave notice of a motion to vacate and set aside the judgment, upon the ground that it was rendered through mistake, inadvertence, and excusable neglect on his part, accompanying the same with certain affidavits in its support. At the hearing ...
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This proceeding was brought for the purpose of obtaining a writ of mandate to compel the defendants, in their official capacity as the board of trustees of the city of San Mateo, to issue a license to petitioner for the sale of liquors at retail within said municipal corporation. After trial judgment was entered in favor of petitioner that the writ issue as prayed for. This appeal is from the jud...
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Action to foreclose a mortgage executed February 12, 1895, by defendant Etchepare to plaintiff. Leonis was made a party defendant upon the averment that she claimed some interest in the mortgaged premises "subsequent to and subject to the lien of the plaintiff's mortgage." Etchepare suffered default. Leonis answered, averring that she was the owner of the premises on and prior to July 31, 1894, an...
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This action is based on a promissory note alleged to have been made by the corporation defendant *Page 323 to the plaintiffs. The answer contains specific denials of certain averments of the complaint and also certain affirmative allegations which, if true, constitute a defense to the action. Judgment went for the plaintiffs, and the defendant appeals from the judgment. The defendant contends tha...
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A demurrer was sustained to plaintiff's amended complaint and judgment entered for defendant. *Page 326 This appeal is from the judgment and for the purpose of reviewing the order sustaining the demurrer. The complaint alleges in substance as follows: That plaintiff was at the general election held in 1894 duly elected to the office of justice of the peace in the township of Suisun, county of Sol...
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Appeal by the defendant from an order denying a motion to set aside his default and the judgment entered against him after his demurrer to the complaint had been overruled. After the court had denied this motion the defendant took an appeal from the judgment, and also took a separate appeal from the order—the appeal from the judgment being case Ho. 709, and that from the order being Ho. 739. Al...
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I have no doubt but that under the evidence disclosed by the record in this case the petitioner is insane within the meaning of that word as used in the law applicable to our state hospitals. But conceding that to be his mental condition, it is not necessarily a bar to his prosecution for the commission of a crime. The insanity which demands that a person at large should be confined in an asylum ...
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I dissent. In the Australian ballot law a declaration is found defining what constitutes a political party within the purview of the act; and then it is further declared that those parties are entitled to hold political conventions and nominate candidates for office. The vital element going to make up a political party under that act is that it shall have polled three per cent of the entire vote c...
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Plaintiffs brought this action to quiet their title to three mining claims known as the Compromise, Handy, and Sixteen to One, situate in Calico mining district, San Bernardino county. Findings and judgment were for the plaintiffs, and defendant Barkley appeals from the judgment and from an order denying his motion for a new trial. Defendant McMillan answered, disclaiming all interest in the prope...
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The superior court made an order striking from the files the notice of intention to move for new trial. The respondents contend that the notice of intention was too late: 1. Because filed more than six months after judgment; and 2. Because filed more than ten days after actual notice of the decision. 1. On the first point it is contended that by the expiration of the time allowed for appeal a judg...
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This action was brought by the county of Kern against Charles A. Lee, the county recorder of said county, and the sureties on his official bond, to recover eight hundred and twenty-eight dollars and sixty cents alleged to have been received by said recorder for recording notices of mining locations and proofs of labor thereon, between the first day of July, 1899, and the commencement of this actio...
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Defendant was convicted of being an accessory to the crime of grand larceny. Section 32 of the Penal Code under which he was convicted reads as follows: "All persons who after full knowledge that a felony has been committed conceal it from the magistrate or harbor and protect the person charged with or convicted thereof, are accessaries." The aforesaid section is not as plain and explicit as it mi...
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[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 369 The plaintiff recovered judgment for the sum of eight hundred dollars, with interest from April 16, 1892, and costs – the principal sum adjudged being the amount of the consideration paid by the plaintiff to the defendant on a contract of the date named w...
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Mandamus. The plaintiff asks the peremptory writ of the superior court of Fresno county commanding defendant, as treasurer of said county, to pay plaintiff, as the owner of all the lands in reclamation district No. 647, the amounts found to be due it out of the moneys in his hands to the credit of the swamp land fund of said county. Defendant demurred to the complaint for insufficiency of facts. T...
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Action to enforce a street assessment for grading Greenwich street from Polk to Franklin street. Judgment went for plaintiffs, from which and from an order denying a new trial the defendant appeals. We see nothing in the record to overcome the prima facie case made by respondent by the introduction of the assessment, warrant, and. accompanying documents. There are some affidavits printed in t...
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This appeal is from a judgment rendered against the sureties on an undertaking given to secure a stay of proceedings on appeal to the supreme court, after notice, and in pursuance of a stipulation contained in the undertaking. The appeal is by the sureties. The undertaking was given on appeal from a decree of final distribution in the above estate dated July 27, 1896. The appeal was taken November...
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Appeal from a judgment for the defendant and an order denying a new trial. The action was brought to recover the sum of three hundred and forty dollars for services rendered by the plaintiff in effecting a sale of defendant's land. On the trial the court refused to hear evidence of the contract on the ground it was not in writing. The cases comes directly under the provisions of section 1624, subd...
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Appeal from a judgment for the defendant and an order denying a new trial. The action was brought to recover the sum of three hundred and forty dollars for services rendered by the plaintiff in effecting a sale of defendant’s land. On the trial the court refused to hear evidence of the contract on the ground it was hot in writing. The case comes directly under the provisions of section 1634, subdi...
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Appeal from a judgment for the defendant and an order denying a new trial. The action was brought to recover the sum of three hundred and forty dollars for services rendered by the plaintiff in effecting a sale of defendant’s land. On the trial the court refused to hear evidence of the contract on the ground it was hot in writing. The case comes directly under the provisions of section 1634, subdi...
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Appeal from judgment on the judgment-roll and a bill of exception. The facts are substantially as follows: On the 25th of August, 1897, one Lutge entered into a written agreement with the "Long Beach city school district" *Page 393 in Los Angeles county to furnish material and build a public schoolhouse in the town of Long Beach upon the premises described in said agreement for the sum of eleven ...
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[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 399 The defendants are the trustees of the town of Etna, in Siskiyou county. In May, 1898, the plaintiff presented to said trustees a petition for a franchise to erect and maintain poles and wires along the streets of said town for the purpose of conveying el...
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In July, 1892, proceedings were taken by the board of supervisors of Glenn county to lay out and establish a public road, in part over lands of the defendants, and the viewers awarded to the defendants, as nonconsenting landowners, damages in the sum of one thousand and ten dollars, and an order was made setting aside that sum out of the funds of the proper road district. At the time there was not...
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This action was brought to annul an order issued by the board of trustees of said school district to the county superintendent of schools, requiring him to draw a requisition upon the county auditor to draw a warrant against the high school fund for the amount of nine hundred and twelve dollars and eighteen cents "in favor of Theodore Lutge, or order, on account of and in full of third installment...
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Foreclosure. On February 23, 1892, one Wilson made his promissory note to plaintiff, payable February 3, 1893, and to secure its payment he executed his mortgage, of even date with the note, to foreclose which this action was brought on June 9, 1897. Defendant Hammond made default, and plaintiff dismissed the action as to defendants Wilson, Howe, and Hogan. Plaintiff had judgment, and defendants J...
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This action was commenced in the superior court of Fresno county by the American Savings and Loan Association, a corporation having its place of business at Minneapolis, in the state of Minnesota, to foreclose a mortgage executed by John A. Barker and wife upon property situate in Fresno. Prior to the commencement of the action defendant W.H. McKenzie became the owner of the mortgaged property, an...
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Upon January 10th certain creditors of one Whipple filed a petition asking that he be adjudged an insolvent debtor. It was asserted therein that Baily was one of the creditors, and as such creditor he made affidavit to the petition. Thereafter, January 14th, for reasons not apparent in the record, a second petition was filed, and a demurrer to this petition being sustained, an amended petition the...
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Upon January 10th certain creditors of one Whipple filed a petition asking that he be adjudged an insolvent debtor. It was asserted therein that Baily was one of the creditors, and as such creditor he made affidavit to the petition. Thereafter, January 14th, for reasons not apparent in the record, a second petition was filed, and a demurrer to this petition being sustained, an amended petition the...
Views: 0
This action was brought to recover for services rendered as an attorney at law. Defendant filed a counterclaim and cross-demand, alleging damages accruing by reason of legal advice negligently given. The action has been before this court upon two previous occasions, but the point now raised by this appeal is presented for the first time. The cross-demand for damages set forth in defendant's answer...
Views: 11
This is an appeal by plaintiffs from an order of the court granting defendants' motion for a new trial. The action was instituted by plaintiffs to recover possession of certain mineral land, for an injunction restraining defendant from extracting ores, and for damages. The following facts were disclosed without conflict in the evidence: On the tenth day of October, 1898, the defendant St. John and...
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This is an action to enforce a lien against certain land of the defendants Adeline B. Park and her husband, William Park, alleged to have been created by a certain instrument in writing made by and between plaintiff and one Perrin, who was said defendants' predecessor in interest in the land. The other defendants are made parties as claiming some interest in the premises. Defendants demurred to th...
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The deceased, Nora Langdon, died testate, leaving a will which contained, among other provisions, the following: "Eighth. All the rest and residue of my estate I give, devise, and bequeath unto my nephews, Callaghan Byrne, James W. Byrne, and Fred Byrne, in equal portions." In due course of administration J. W. Byrne and Callaghan Byrne, two of the aforesaid nephews, filed a petition for distribut...
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This is an appeal from the judgment. The action was to recover upon an insurance policy, and this appeal involves its construction and interpretation. On December 15, 1891, the defendant herein issued a twenty payment life rate endowment policy for five thousand dollars on the life of George W. Rife, the annual premium upon which policy was one hundred and thirty-six dollars and ninety-five cents....
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This action was brought to foreclose the lien of a street assessment for work done in 1892. The plaintiffs, at the trial, following the usual practice in cases of this class, put in evidence the assessment, including the warrant, diagram, certificate of the city engineer, and a printed copy of a certain resolution of the board of supervisors, and rested. To this evidence, however, defendant made c...
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W. L. Pierce, in certain proceedings touching the guardianship of an insane person, had, by order of the superior court and of Hon. Carroll Cook, judge thereof, been allowed the sum of three thousand eight hundred dollars as attorney’s fee, which sum was paid out of the funds of the insane person. Thereafter this petitioner, a party in interest, applied to the superior court for an order: 1. Vaca...
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The petitioner was subpoenaed before the grand jury sitting in the city and county of San Francisco, and having been sworn as a witness before that body, there were propounded to him certain interrogatories. Upon his refusal to answer, the foreman of the grand jury made affidavit setting forth at length the questions which had been propounded to the contumacious witness, and stating that the body ...
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This is an action to determine conflicting claims of plaintiff O’Toole and defendant Dolan to the sum of seven hundred and fifty dollars placed in the hands of defendant McAllister by Parker and Shimer to abide the determination of the controversy. The cause was tried by the court, and findings and judgment were for defendant Dolan, and plaintiff appeals from the judgment and from an order denyin...
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The plaintiff, as assignee of one Blake, brought suit against Clabrough for the sum of six hundred and thirty-two dollars and eighty-five cents, which, it is alleged and found, "Clabrough in his lifetime received for and on behalf of ____ Blake ____ to be held by said ____ Clabrough until demanded by the said ____ Blake." On the death of Clabrough the suit was continued against his executors, agai...
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This is an action to recover possession of a part of a quartz mining claim called the "Belmont," together with damages for certain alleged trespasses committed thereon by the defendant, and to obtain an injunction to prevent the defendant from taking rock and gold from said claim, and from interfering with it in any way. The case was tried by the court without a jury; the court found all the mater...
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Defendant was the owner of a certain mine, and had contracted with a third party for the sale of it upon certain terms – in substance, that the purchaser should be put in possession for a specified time for the purpose of examination and development, and, if found satisfactory, to pay therefor a specified price. Plaintiff was an experienced miner and expert, and was well acquainted with the locati...
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Defendant has been convicted of murder, and appeals to this court. Defendant was arrested some months after the commission of the homicide. When arrested he was searched, and upon his person were found two letters purporting to have been written by a Chinese society known as Suey Ying Tong, and addressed to another Chinese society known as Woo Soon Tong. The contents of these letters were to the e...
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Jacob Rich was adjudicated an insolvent by the superior court of Santa Clara county June 4, 1896, and in *495 due time thereafter filed his petition to be discharged from his debts. The Santa Clara Valley Mill and Lumber Company, a corporation, is one of the creditors of said insolvent, and for the purpose of opposing his discharge filed certain specifications— twelve in number—of the grounds o...
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When this cause was originally submitted for decision the only answer to the objections of appellant to the charge of the trial judge was a reference to Durrant's case. (People v. Durrant,116 Cal. 222.) In the opinion of Justice Temple it was shown that Durrant's case was not authority on the point here involved. In his petition for a rehearing the attorney general then cited as authority against ...
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[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 516 Action on a contract, entered into by defendant's testator and plaintiff's assignor for the sale of land by the former to the latter, to recover the deposit made by plaintiff on account of the purchase. Plaintiff had judgment for the amount of deposit, to...
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This is an action in mandate to compel the auditor of the county of Santa Barbara to issue his warrant on the county treasurer of the county for the salary of petitioner as district attorney, at the rate of two hundred and eight dollars and thirty-three cents a month. The auditor declined to issue his warrant in that amount, but was willing to issue it for the sum of one hundred and twenty-five do...
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Motion to dismiss the appeals. The appeals herein were taken June 24, 1899, and purport to be from a judgment dismissing the action, and also from an order made after judgment. The transcript on appeal was filed August 5, 1899. March 8, 1900, the respondent gave notice of the present motion to dismiss the appeals upon the ground that no sufficient undertaking on appeal had been filed. As there are...
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This action was brought by. plaintiff as road ■commissioner, for the purpose of having abated as a public nuisance a fence erected and maintained by defendant upon an alleged public highway. The case was tried before the court -without a jury, findings filed, and judgment entered in favor -of defendant. This appeal is by plaintiff from the judgment -and from an order denying his motion for a new ...
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In September, 1872, the city of Los Angeles passed an ordinance granting to the Southern Pacific Railroad Company a right of way along Alameda street in said city in the following terms: "The mayor and common council of the city of Los Angeles do ordain as follows: "Section 1. That the right of way for the railroad track of the Southern Pacific Railroad Company in and out of the city of Los Angele...
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This action is based on section 803 of the Code of Civil Procedure, and was brought to have the franchise of defendant to maintain a street railway on Bush and other streets of San Francisco declared forfeited, and to have defendant adjudged to have usurped a franchise and fined in a sum not exceeding five thousand dollars, as provided in section 809 of the Code of Civil Procedure. The plaintiff h...
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The defendant was convicted of the crime of murder in the second degree, and appeals from the judgment and from an order denying a new trial. The killing took place in the county of San Diego, near the village of Hedges. A man had been stabbed there by one Rosales, who had escaped. The people of the village, or many of them, including the defendant, were in pursuit of the fugitive, who – as also t...
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Mandamus to compel the respondent, as judge of the superior court of the county of San Joaquin, to settle a bill of exceptions. In the petition for the writ it is alleged that in an action wherein the petitioner was plaintiff and the south school district of San Joaquin county and others were defendants, tried before the respondent, a judge of the superior court of said county of San Joaquin,...
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The defendant was indicted by the grand jury of the county of Tuolumne for the crime of murder, in the killing of one William Spencer Gilliard, and was tried and convicted of murder in the first degree. The appeal is taken from the judgment entered upon said verdict and from the order overruling defendant's motion for a new trial. The appellant presents and urges three grounds of error for a rever...
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The plaintiff herein was appointed as a receiver in a suit brought by the intervenor for the foreclosure of a mortgage upon certain lands in Sutter county, *Page 565 and brought this action as such receiver to recover possession of certain cattle claimed by him to be the rents and profits of the mortgaged property. It is contended by appellant that the plaintiff cannot recover in this action beca...
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The petitioner, Werner, was convicted in the justice's court of Pasadena township and sentenced to pay a fine of fifteen dollars, or, in default of such payment, be confined in the county jail of Los Angeles county for the period of fifteen days. On appeal to the superior court of Los Angeles county the judgment of the justice's court was affirmed. The relator, failing to pay his fine, was committ...
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Motion to dismiss the appeal. The complaint herein seeks the foreclosure of a mortgage given to secure two promissory notes executed to the plaintiff by the defendants. In their answer the defendants, in addition to other defenses, allege that the plaintiff subsequent to the execution of the notes had extended the time for their payment, and that this time had not expired when the complaint was fi...
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This is an action brought by plaintiff to determine his possessory right to a certain quartz mining claim. The defendants pleaded an entry upon the land in question as vacant and unoccupied mineral land, and a compliance upon their part with the laws governing the location and working of such a claim. The land is part of a claim admittedly first located by plaintiff and called by him the Ontario m...
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This was an action to recover eighteen hundred and seventy-five dollars, the price of certain nursery trees, under a written contract between the parties, and also for four hundred and thirty-nine dollars as the increased value of the trees after demand upon defendant therefor. Defendant asked for a reformation of the contract, and for a recission of it as revised. The court gave him judgment as p...
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The appellant was charged with the murder of one John Sheehan, and was convicted of murder in the second degree. He appeals from the judgment and from an order denying his motion for a new trial. We will notice the five points made for a reversal. The contention of appellant that the verdict is contrary to the evidence cannot be maintained. It was clearly shown, and is admitted by appellant, that ...
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In an action pending in the superior court of Madera county, wherein the defendants herein were *Page 591 plaintiffs and the Madera Fruit and Land Company et al. were defendants, the plaintiff herein, at the instance of the plaintiffs in that action, was appointed as receiver of certain lands and premises described in the complaint in said action, on February 1, 1894, and thereupon entered upon h...
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This action was brought to recover $879.90 balance due on a promissory note made by defendant's intestate. Upon the first trial the court below found that the note had been fully paid, and ordered judgment for defendant. This judgment was reversed here upon the ground that the evidence was insufficient to sustain the finding, and the cause was remanded for a new trial.(Griffith v. Lewin, 125 Cal. ...
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Application for writ of mandamus requiring the defendant to levy taxes for the support of the common schools of the Woodland school district, and for the support of the Woodland high school. Judgment was rendered for defendant on demurrer to the petition, and plaintiff appeals. Woodland is a city of the fifth class, organized under the provisions of chapter VI of the municipal corporation acts of ...
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Appeal from judgment on the judgment-roll. The action was brought to recover of defendants the amount due for water furnished by plaintiff to defendants under certain written contracts, and to have the amount declared to be a lien upon the lands of defendants. The plaintiff recovered judgment and the amount was declared to be a lien upon the lands of defendants, but plaintiff claims that the judg...
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The case is a proceeding for mandamus to the defendant requiring him to issue to the plaintiff a warrant for ten dollars, his salary for the month of April, 1899, as constable of township Mo. 7, Contra Costa county. The plaintiff had judgment in the court below. The case involves the construction and validity of section 183, subdivision 14 of the County Government Act of 1897; which provides ...
Views: 1
Plaintiff appeals from a judgment against him for costs, and from an order denying him a new trial. The action was commenced April 20, 1896, and is to recover the amount of a promissory note dated November 19, 1891, for four thousand seven hundred and fifty dollars and interest. This note is signed: "Kate C. Perry, guardian for the person and estate of Florence Blythe, a minor." In addition to the...
Views: 2
This action was brought by plaintiff for the purpose of recovering two thousand four hundred dollars damages, alleged to have been caused by the defendant’s wrongful entry upon the premises described in the complaint and converting the crops thereon to his own use. The premises had been leased by defendant to plaintiff, and the entry complained of was during the continuance of the lease. The case...
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This action was brought to compel the defendant to pay assessment No. 16, levied on his land in 1896, for reclamation purposes. Plaintiff had judgment declaring the amount of the assessment to be a lien on said land and directing *Page 623 that the same be sold to satisfy said lien and costs. From this judgment and from an order denying him a new trial the defendant appeals. The reclamation distr...
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This is an application for a writ of prohibition against the superior court of Los Angeles county. The petitioner, having obtained a judgment against "The Bankers' Alliance of California," a corporation, had an execution issued thereon, and levied or attempted to levy the writ upon certain moneys, credits, and personal property under the control of one Washburn, who claims to be holding the same a...
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This is an action to remove the cloud of a street assessment lien from the title of plaintiffs to several lots in the city of San Diego. June 16, 1896, the common council of San Diego passed a resolution of intention to order a described portion of First *Page 636 street to be "sidewalked," excepting such portions of said First street and intersections between said points as have already been sid...
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[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 642 Action to have certain one thousand bonds of defendant district, in part issued and in part unissued, adjudged void; to compel each of certain defendants to disclose the bonds held by him, and to bring them into court to be canceled and destroyed, and mea...
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Appeal by defendants from an order granting a writ of assistance. 1. It is claimed that the court erred in shortening the time for hearing the application for the writ from five to three days. The power to shorten the time is given by section 1005 of the Code of Civil Procedure. The order of the court reads: "Good cause appearing to me therefor, it is ordered," etc. There is nothing in the record ...
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Plaintiff had judgment by default against defendant Parsons. The defendant Bowles answered, and on a trial the verdict and judgment were against him. From said judgment and from an order denying him a new trial the defendant Bowles appeals. The complaint in the case sets forth facts showing a sale and delivery to defendants, and each of them, of a one-half interest in a saloon and fixtures and mat...
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This action was brought by the plaintiff against defendant Hall as principal, and the other defendants as sureties, on Hall’s official bond given by. him as recorder of Sonoma county, to recover damages for a breach of said bond in failing to deliver to the county auditor on the expiration of Ms term of office a certain fee-book in which was entered the fees and compensation chargeable and collec...
Views: 9
This is an action brought to reform a contract and to recover damages for an alleged breach thereof. The question arising upon the appeal is presented upon the face of the complaint. We will consider the single proposition, Do the facts alleged justify a reformation of the contract as prayed for? The facts are these: Plaintiff J. W. Mabb and defendant Merriam verbally agreed to exchange lands. ...
Views: 3
Action to recover certain money alleged to have been received by defendant between the filing of a complaint by it on foreclosure and the making of the default decree, and the sheriff's sale thereunder, for which no credit was given. Defendant had judgment, from which and from the order denying his motion for new trial plaintiff appeals. The complaint sets forth the following among other facts: Pl...
Views: 10
This is an appeal from an order, made and entered on motion of plaintiff, dismissing the action. It appears from the bill of exceptions that the cause was here once before on appeal, and, the plaintiff confessing error in the overruling of defendant's demurrer, the "judgment was reversed and the cause remanded." Theremittitur was, on motion of defendants, entered in the minutes of the trial court ...
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Action to quiet title to the east half of the northwest quarter of section 25, township 1 north, range 9 west, situated in Los Angeles county, and of which plaintiff claims to be the owner. Defendant denied plaintiff's ownership and denied that defendant claims any interest in the land except "the right to maintain in San Dimas creek (which flows over said land) a dam at a point about one hundred ...
Views: 10
Plaintiffs brought this action in the superior court upon a promissory note executed to them by the defendant, and caused a writ of attachment to be issued and levied upon certain personal property of the defendant. A motion to dissolve the attachment was made by the defendant, and was denied by the court on June 24, 1899, on which day an order was made setting the cause for trial on June 26th an...
Views: 2
This is an appeal by defendant from an order modifying a decree, given and made November 18, 1896, by which plaintiff obtained a divorce from defendant on the ground of her extreme cruelty, and awarding the custody of their three minor children to defendant. On November 22, 1897, plaintiff filed a verified petition in the action, setting forth, among other facts, that defendant is residing with sa...
Views: 3
The appellant recovered judgment in the court below for damages (seventeen hundred and fifty dollars)., resulting from her falling down a negligently constructed staircase leading from the defendant's storeroom, where she had just been employed by the defendant, to the basement. The court granted a new trial on the ground of newly discovered evidence; and the grounds urged for reversal are: 1. Tha...
Views: 13

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