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All Reporters → cal → Volume 131

Opinions in cal Volume 131

Thomas Bell died testate in the city and county of San Francisco. Subsequent to the issuance of letters testamentary, and prior to the return of the inventory and appraisement, the court made an order for a family allowance of two thousand dollars per month, this allowance to continue until the further order of the court. The administration of the estate proceeded on its course, and nearly three y...
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Thomas Bell died testate in the city and county of San Francisco. Subsequent to the issuance of letters testamentary, and prior to the return of the inventory and appraisement, the court made an order for a family allowance of two thousand dollars per month, this allowance to continue until the further order of the court. The administration of the estate proceeded on its course, and nearly three y...
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The appellant, Henley, was sued as a member of the law firm of Henley & McSherry, doing business in San Francisco during the year 1892-93, and judgment recovered against him for six hundred and two dollars and fifty cents and costs. McSherry was made party to the complaint, hut was not served. The suit was commenced February 4, 1896, within three years, hut not within two years of the accrual o...
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The action is one to foreclose a chattel mortgage. Judgment went for the plaintiff, from which the defendant appeals upon the judgment-roll. The complaint is in the usual form. The answer admits the execution of the note and mortgage, but avers that at the time of its execution it was agreed and understood that the plaintiff would not seek to foreclose so long as defendant paid the interest; that ...
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In this action a general and special demurrer was sustained to the complaint, and, the plaintiff declining to amend, judgment went against him. The sufficiency of the complaint is the question before the court. In passing upon this question all ambiguities and uncertainties found in the pleading will be construed against the pleader. The facts are these: James Brown owned a herd of cattle upon whi...
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This is an action for damages for the value of ore alleged to have been taken by defendant from plaintiff's mine, situate in Amador county. The defendant denies taking any ore, or gold-bearing rock, from plaintiff's mine, and avers that defendant is the owner of the mine from which the rock was taken. The cause was submitted in the trial court upon an agreed statement of facts, each party having t...
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The opinion of the Department heretofore filed herein, is modified so as to read as follows:...
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Action to recover certain taxes, paid under protest, upon certain stocks and bonds situated in New York city. Defendant had judgment on the demurrer to the complaint, from which this appeal is prosecuted. It appears from the complaint that at his death plaintiff's testator was the owner of a large number of stocks or shares and certain bonds of foreign corporations, all of which, except certain de...
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Appeal from an order denying plaintiff's motion for judgment against the sureites on a stay bond. The action was for personal injuries, and plaintiff had judgment March 15, 1898. April 4, 1898, defendants appealed from the judgment and gave the usual appeal bond and also an undertaking to stay execution of the judgment. The appeal was dismissed by this court on November 14, 1898 (grounds not shown...
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This action was brought by plaintiffs and intervenors, judgment creditors of the Packwood Vineyard and Fruit Company, an insolvent corporation, to compel payment by the stockholders of that corporation of the unpaid portion of their stock. The defendants Pope, Talbot, and Fagan appeal from the judgment given against them, and in support of their appeal Talbot and Pope urge *Page 47 that they were...
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In April, 1898, the city council of the city of Oakland passed an ordinance, the first section of which reads as follows: "The sum of one thousand dollars is hereby appropriated from the general fund of the city of Oakland for the year 1897-98 to pay the claim and demand of Owen F. Rooney for moneys erroneously collected by the city of Oakland from said Owen F. Rooney and paid by him under protest...
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Plaintiff, as assignee, brings this action upon a promissory note against the maker thereof. Its execution and delivery are admitted, but various defenses to its payment are made. These defenses will be considered. 1. It is claimed that plaintiff was not the holder of the note, either when the action was brought or the trial had, and for this reason a nonsuit should have been granted. Under the...
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The complaint alleges that the plaintiff and defendant are owners in common of two horses, named respectively "Midas" and "Sport McAllister"; that said horses are in the possession of defendant; that she is excluded from the use and possession of the horses; and praying for a decree of partition, that a sale of the horses be ordered, and for an accounting. The defendant denies that the plaintiff h...
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John S. Enos died in Sonoma county on March 30, 1898. The plaintiff Susie T. Enos is his surviving wife, and the plaintiff Gertrude Willis is his daughter. For several years next before his death the deceased had not lived with his wife, but during that time lived at the residence of the defendant Rachael Jane Snyder, where he died. He left a will which contained a direction that the manner, time,...
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Arthur Waters died intestate in the city of San Francisco, leaving a wife, Elizabeth, here, and a sister and nephews in other states. Administration was had upon his estate, and in due time and after due notice, a decree of distribution was entered, which found that the wife, Elizabeth, was the only heir of her husband, and all of his estate was thereupon distributed to her. Subsequently, she died...
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Action to quiet title. Judgment was rendered in favor of the defendants, and the plaintiff has appealed from an order denying a new trial. The plaintiff's title is based upon certain tax deeds for different portions of the premises described in the complaint, *Page 82 three of the deeds being for the taxes thereon for the fiscal year ending June 30, 1883, and one for the succeeding year. The deed...
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In May, 1894, the defendant was the owner of a promissory note and mortgage made by one Lewis to him for the sum of five hundred dollars. The maker of the note was insolvent, and the lands described in the mortgage were of small value, not to exceed one hundred dollars. Defendant went to plaintiff, and by false representations in regard to the value of the land mortgaged and by taking plaintiff an...
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This action was brought to recover for goods, wares, and merchandise, alleged to have been sold to the defendants as copartners under the firm name of "Kolm Bros." One Perkins had in his hands about eight hundred and seventy dollars, which plaintiff claimed to be the money of H. Kolm, who was alleged to be one of the partners. Plaintiff had the eight hundred and seventy dollars attached in this ac...
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The plaintiff was nonsuited in the court below, and appeals from an order denying a new trial. The suit was brought to enjoin the maintenance of an alleged nuisance, and for damages suffered by the plaintiff by reason of it. The defendants, other than the town, were trustees of the town, but are sued individually. There was no evidence tending to establish the cause of action as against them; and ...
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Defendants demurred to the complaint on several grounds; the demurrer was sustained, and, plaintiff declining to amend, defendants had judgment, from which plaintiff appeals. 1. Respondents object to the consideration of the appeal on the ground of the insufficiency of the notice. It is as follows: "[Title Court and Cause.] "Please take notice that the plaintiff in the above-entitled action hereby...
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This action was brought by the father to recover damages for the death of his son. The deceased was a bright, active boy, nearly seventeen years of age. He was a fireman upon a switch engine of defendant, and had been working in that capacity for nearly two months. At the time of the accident he was not on duty. The pay-car of defendant, to which was attached a switch-engine, started to go from th...
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The defendant was the owner of the undivided half of a certain tract of land in Alameda county on the first Monday of March, 1897, and for many years prior thereto, and on March 24, 1897, he made a grant, bargain, and sale deed of his interests in the land to one Jackson. On the next day Jackson conveyed the land to the plaintiffs by a grant, bargain, and sale deed, and the plaintiffs have since r...
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This is an appeal by the people from an order of the court below granting a motion to set aside the information. The main ground of the motion was that prior to the information respondent had not been legally committed by a magistrate. What is called the "transcript on appeal" shows what purport to be a large number of affidavits and other papers and testimony given and proceedings had at the prel...
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Action to quiet title. Plaintiff is one of ten children of William H. Winston, who died testate in May, 1886; in June, 1886, his surviving widow, Mary E. Winston, was appointed executrix; plaintiff is a devisee under the will of deceased and claims as such; she brings this action to quiet her title to an undivided one-eleventh interest in a certain tract of land in Los Angeles county, as property ...
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On the trial of this case, before the court without a jury, the judgment was for defendant and the plaintiff brings this appeal from an order denying his motion for a new trial. This action is brought by the asignee of the beneficiary of an accident policy issued by defendant to George Douglas Atcherly Crosbie in the lifetime of said Crosbie. By the terms of the policy the sum of ten thousand doll...
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Action for personal injury. The trial was by the court without a jury. Plaintiff had judgment, from which and from an order denying their motion for a new trial defendants appeal. The court found that defendant Conger was, on the fourth day of March, 1896, employed by the defendant California Improvement Company, as engineer to manage a steam roller owned by said company and used by it in rolling ...
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In the judgment of the court in Bank in this case, it was directed that the costs should be allotted one-half to the appeals of Mrs. Hutton, and one-half to those of the Continental Building and Loan Association, the former to be paid by the respondents, including the appellant Chandler, in amounts proportionate to their respective claims, the latter by the respondents – excluding the appellant Ch...
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This appeal is from the judgment upon the judgment-roll. Defendant John Davis was the owner of an undivided interest in the rancho San Pablo. In January, 1885, one Lynch obtained a judgment against Davis for two thousand one hundred and eighty-four dollars and four cents, and nineteen dollars costs, and in February of the same year the undivided interest of Davis in said rancho was sold to one Wat...
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The appeal is from a judgment in favor of the plaintiff and from an order denying the defendants' motion for a new trial; but the only point made by the appellants' counsel, and the only point that need be considered, is that a new trial should have been granted on the ground of newly discovered evidence. The defendant Warfield is sheriff of Merced county, and, it is found, seized under attachment...
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This appeal is from a judgment in favor of defendants and from an order denying plaintiff a new trial. The proceeding is in the nature of a quo warranto by the attorney general to deprive the defendant, a corporation, of its corporate charter and procure its dissolution. The principal ground, as we gather from the complaint, upon which it is claimed the corporation should be deprived of its charte...
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This action was brought to foreclose a lien for material furnished defendant Brown and used in the construction of a barn upon the lands of defendant Dondero and wife. Findings were filed and judgment entered for defendants Dondero. This appeal is from the judgment and an order denying plaintiff's motion for a new trial. The findings are not assailed as to the facts therein determined, but the con...
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Appeal from a judgment in defendant's favor and from an order denying plaintiff's motion for a new trial. This action was commenced by filing a complaint on November 5, 1898. In that complaint it is alleged that on June 1, 1885, at Atchison, Kansas, the defendant made and delivered his promissory note for eight hundred and twenty dollars and interest, due ninety days after date, to one J.A. Bovard...
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This action was brought by plaintiff, as a citizen and taxpayer, to enjoin the defendants – who are the members of and compose the board of education of the city and county of San Francisco – from using or causing to be used, until four years after the ninth day of June, 1897, the text-books of the Shaylor system of vertical round-hand penmanship, upon the ground that said text-books have not been...
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Defendants' demurrrer to plaintiff's complaint was sustained, and judgment thereon entered against the plaintiff, who appeals from said judgment. The other defendants are the mayor, the board of supervisors, the board of health, and the individuals composing said boards, and the health officer of the city and county of San Francisco; and the principal question involved is the validity of an ordina...
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The suit was brought to foreclose a mortgage executed to the plaintiff by the defendant Johnson May 17, 1893, for three hundred dollars, etc. The defendant corporation and the defendant Baldwin filed cross-complaints to foreclose a subsequent mortgage on the same premises executed by the defendants Johnson to the former, and claimed by the latter to have been assigned to him. The mortgagors made d...
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Motion to dismiss the appeal. Judgment was rendered in this action in favor of the plaintiff for a specified amount of money, and declaring the same to be a lien upon certain lands and also upon a certain water 'ditch. Thereafter the plaintiff served and filed a notice of appeal “from all that portion of the judgment whereby the court refused to or *179 der, adjudge, and decree that five shares...
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This appeal is from an order of the superior court of Santa Clara county appointing a guardian of the person *Page 181 and estate of Ralph Russell Taylor, a minor. It appears from the bill of exceptions that the said minor was born in October, 1890, in Santa Clara county, that being the place of residence of his parents. His mother died shortly after his birth, and in December, 1890, the infant w...
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Action to foreclose a mechanic's lien, under a contract between the plaintiff and defendant W.J. Kessler, for an improvement upon a building situate upon premises alleged to be the property of Mr. and Mrs. Kessler. Defendant Hanna was alleged to have or claim some interest therein, but she made default, and will not be further noticed. The plaintiff had findings and judgment, and defendant W.J. Ke...
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Foreclosure of deed of trust. Plaintiff had judgment, from which the defendant, the Los Angeles Iron and Steel Company, appeals. The only question presented relates to the correctness of the order overruling the demurrer of defendant and appellant, the steel company. On May 1, 1894, the steel company executed a trust deed to the National Trust Company, as trustee, to secure the payment of the prin...
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This is an action to recover damages alleged to have been sustained by the plaintiffs by reason of the failure of the defendant to supply water to lands occupied by them as lessees. The plaintiffs recovered judgment, and this appeal is taken therefrom and from an order denying a new trial. The principal question arises upon the construction of a contract executed by and between Charles Prager and ...
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Plaintiff appeals from a judgment and from an order denying its motion for a new trial. The defendant Dauer was the treasurer of San Diego county from the first Monday in January, 1891, to the second day of January, 1893. This action is on his official bond and was commenced against him and the sureties on said bond on the thirty-first day of December, 1896, to recover the sum of $24,108.87, which...
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Plaintiff brought this action to enjoin the defendant from obstructing his private way across the defendant's land and for damages. Upon the trial defendant had findings and judgment. Plaintiff moved for a new trial, his motion was granted, and the defendant appeals from the order granting said motion. Plaintiff, in 1858, settled upon and entered a certain quarter section of government land situat...
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Appeal from a judgment dismissing the case for failure of prosecution. The suit was brought by the plaintiff as assignee to recover the amount due on a note made to plaintiff’s assignor by the defendant April 20, 1881. The sole issue raised by the answer was as to 'the plaintiff’s ownership of the note. The motion was made October, 1897, on the “records, files, and entries” in the case; from,...
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Action to recover possession of a mining claim, for damages, and for an injunction. Plaintiff had judgment for possession, for one dollar damages and perpetually enjoining defendants from trespassing upon the premises in controversy. The appeal is from the judgment on the judgment-roll. 1. Appellants contend that their demurrer for uncertainty, ambiguity, and unintelligibility should have been sus...
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The plaintiff brought this action in the justice's court to recover from the defendant the sum of two hundred and ninety-nine dollars, alleging in his complaint that his assignor had entered into a contract with the defendant for the doing of certain work in improving a street in Sausalito, and that the defendant had agreed to pay the above sum therefor. The defendant answered the complaint by a g...
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The executor of the last will and testament of the above decedent presented to the superior court for final settlement an account of his administration of the estate, and at the same time a petition for the distribution of the estate remaining in his hands, setting forth therein the provisions of the will and the names of the persons entitled to receive distribution, and also the shares of the est...
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Action brought to enforce a lien for work and materials in laying cement sidewalk and curb and constructing cement steps on the sidewalk leading up to the doorways. Defendants severally demurred to the second amended complaint, the demurrers were sustained, and, plaintiff failing to amend, judgment of dismissal was entered and plaintiff appeals. The contract was made, the work performed and notice...
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This action was brought to recover taxes claimed to be due plaintiff by defendant upon property owned by it on the first Monday of March, 1894. Findings were filed and judgment entered for defendant. Plaintiff appeals from the judgment and from an order denying its motion for a new trial. The amount of taxes that were due by defendant, according to the assessment as made by the city assessor, at t...
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Defendant was charged with the crime of grand larceny and of two prior convictions for the like offense. He was found guilty by the jury, and the court sentenced him to imprisonment in the state prison during his natural life. The appeal is from the judgment and from the order denying defendant's motion for a new trial. There is no brief for respondent. Appellant's points relate exclusively to the...
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The defendant appeals from an order denying a new trial. The action is to recover the value of the furniture and contents of a certain restaurant in the city of Los Angeles alleged to have been wrongfully converted by defendant. The defendant denies plaintiff’s title and justifies the taking, as sheriff, under a writ of attachment issued in a cause entitled G. C. de Garmo v. George F. Harvat, ...
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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 242 [EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 243 [EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE T...
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This action is by a taxpayer to enjoin the city treasurer of Los Angeles and the city from paying the expenses of a certain board claiming to be a board of freeholders elected to prepare a charter for the city. The city of Los Angeles already had a freeholders' charter, which was approved by the legislature in January, 1889. In that year a board of freeholders was again elected which *Page 264 fr...
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Prior to September 10, 1895, the appellant was the owner of a tract of land in Santa Clara county containing about twenty acres, on which there was a fruit orchard, and respondent was the owner of some improved property in Riverside county under rental and some unimproved property in Los Angeles county. At that time the parties agreed upon the exchange of their properties, the appellant selling hi...
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The two brothers by the name of Nolan were engaged for ten years in carrying on a wholesale shoe business in the city of San Francisco under the name of "Nolan Bros." One brother sold his interest in the business to the other, and that brother (W.H. Nolan) shortly thereafter closed out the wholesale business and opened up a retail shoe business at another point in the city under the name of "W.H. ...
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In an action brought by the petitioner against D.W. Ridenour et al. in the superior court of Lassen county, judgment was entered in his favor for the amount of two hundred and ninety dollars damages. Thereafter the defendants therein filed a memorandum of costs amounting to ninety-two dollars. Plaintiff thereupon moved the court to strike this memorandum of costs from the files, upon the ground th...
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This is an original proceeding in certiorari to annul three certain orders or judgments made by the trial court. The facts are these: On June 15, 1898, at 10 A.M., one Minnie Campbell was upon trial in the superior court charged with the commission of a felony. Petitioner Overend was called and sworn as a witness, whereupon he refused to answer any questions, upon the ground that his evidence *Pag...
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Motion to dismiss the appeal. This action was brought to recover the amount of certain promissory notes executed by the respondent Kate C. Byrne, and held by the plaintiff. A complaint in intervention was filed by Henry I. Kowalsky, in which he claimed an interest in one of said notes. Judgment was rendered in the action in favor of the plaintiff, and against the defendants, and that the interveno...
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Appeal from order making allowance to widow of deceased of forty dollars per month for maintenance pending administration. The application was contested by the daughters, and the children of a deceased son of a former marriage. The grounds of opposition were: 1. That the widow had separate property sufficient for her maintenance; 2. That there was no property in the estate from which the allowance...
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Plaintiffs brought this action, as taxpayers of the city of San Diego, to set aside a contract of lease between the said city and defendant water company. The case was tried on the cross-complaint of the water company and the answer of the defendant city thereto, the plaintiffs having withdrawn from the action. The court found that the lease in question was void, and that the company was not entit...
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By the information the appellant Brooks and one Tony Bice were jointly charged with the murder of Don Donelly. Brooks was tried separately and convicted of murder in the second degree. He appeals from the judgment and from an order denying a motion for a new trial. The record is in a very loose and unsatisfactory condition. The hill of exceptions, after showing that certain witnesses were ...
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The defendants appeal from a judgment against them and from an order denying their motion for a new trial in a suit brought by plaintiff on a promissory note for four hundred dollars, besides interest, and to foreclose a mortgage given to secure said note. There is also an appeal from an order denying one Charles Orendorff the right to intervene. 1. Appellants contend that the description of the p...
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Plaintiff brings the action to recover from defendant bank twelve thousand seven hundred and seventy-eight dollars and five cents alleged to have been deposited with the hank by plaintiff on September 19, 1894, with instructions “to pay the same to Thomas Cunningham, sheriff of San Joaquin county, provided the said sheriff called for the same and left with the bank for plaintiff a certificate of ...
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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 328 The appellant, Lena B. Mattern, executed to the respondent a mortgage bearing date March 1, 1895, upon certain land in the county of Los Angeles, to secure payment of the sum of three thousand five hundred dollars, according to the terms of a promissory n...
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The plaintiff charges the defendants with the conversion of certain shares of stock belonging to him, and seeks by this action to recover damages therefor. His cause of action is based upon the following facts: At some time in the early part of 1896 he owned and had in his possession two certificates representing, respectively, fifty and one hundred shares of the capital stock of the Consolidat...
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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 338 Plaintiff's action is to cancel a mortgage given by plaintiff to defendant's assignor, Oakland Building, Savings and Loan Association, upon certain real property in *Page 339 the mortgage described, and for the recovery of three fully paid-up shares in s...
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Respondents have moved to dismiss the appeals in this case. One of the grounds relied upon to secure a dismissal is based upon the claim that the undertaking upon appeal is substantially defective. This undertaking *Page 351 recites that whereas the appellants have appealed to this court from the judgment entered in the action, and also from the order denying plaintiff's motion to set aside the j...
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The appellant was charged with the crime of murder in the killing of Thomas Kehoe, and upon his trial *353 therefor was convicted of manslaughter. He has appealed from the judgment entered thereon, upon the ground that the verdict is not sustained by the evidence. The evidence established that Kehoe died from Bright’s disease of the kidneys, superinduced by an excessive use of alcoholic drinks....
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Action to recover certain taxes which were paid under protest. In response to a demand made by the assessor of the city and county of San Francisco, plaintiff, between the first Monday of March and the first Monday of July, 1896, returned a verified statement purporting to contain a complete list of all its property, subject to taxation for that fiscal year. Without requesting a corrected statemen...
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This is a proceeding to review the action of the board of supervisors of San Luis Obispo county in the matter of the alleged creation of Templeton sanitary district in said county. The plaintiff based his application for the writ upon an affidavit as required by section 1069 of the Code of Civil Procedure. The writ was issued and served and a return thereto was made, setting out the petition for t...
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Action, for services as attorney at law rendered defendant by Joseph Bothschild, Esq., plaintiff’s assignor. Defendant denied the alleged indebtedness, and as a separata answer alleged that the firm of Christy & Wise, composed of John H. Wise (defendant) and Harry E. Wise, was the owner of a promissory note for nine thousand seven hundred and sixty dollars, made by one James Murphy and one E. S...
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The complaint in this action prayed damages for injuries occasioned to plaintiff's property and person by reason of blasting operations negligently conducted by the defendant. It charged that the blasts showered a rain of rocks upon plaintiff's house and premises, "killing chickens and breaking boards of house, stable, woodshed, chicken-house, and fence." That upon one occasion "two immense bowlde...
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The plaintiff recovered judgment in the court below for the sum of thirteen thousand three hundred and ten dollars, with interest and attorney's fee, alleged to be due on seven promissory notes made to the plaintiff by the defendants. The complaint is in the ordinary form. The defense was fraud in the procurement of the contract. The questions involved relate exclusively to the sufficiency of the ...
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This action was brought by plantiff, as assignee of Field, to recover ten thousand dollars alleged to be due on four promissory notes, executed in pursuance of the *Page 386 contract involved in Field v. Austin, ante, p. 379, just decided, and belonging to the same series as the notes sued on in that case. The notes all contain stipulations for attorneys' fees in case of suit, and are, therefore,...
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This action was brought by plaintiff, as assignee of Field, to recover ten thousand dollars alleged to be due on four promissory notes, executed in pursuance of the *386contract involved in Field v. Austin, ante, p. 379, just decided, and belonging to the same series as the notes sued on in that ease. The notes all contain stipulations for attorneys’ fees in case of suit, and are, therefore, non-n...
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This action was brought by plaintiff, as assignee of Field, to recover ten thousand dollars alleged to be due on four promissory notes, executed in pursuance of the *386contract involved in Field v. Austin, ante, p. 379, just decided, and belonging to the same series as the notes sued on in that ease. The notes all contain stipulations for attorneys’ fees in case of suit, and are, therefore, non-n...
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This is an application for a writ of mandate to compel the defendant, who is auditor of Fresno county, to draw a warrant in favor of the petitioner for certain installments of salary alleged to be due him as assistant district attorney of said county. In the County Government Act of 1893 (Stats. 1893, p. 346), in section 25, it is provided as follows: "The boards of supervisors, in their respectiv...
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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 392 Action for personal injury. The trial was by a jury, and plaintiff had the verdict. Defendant appeals from the judgment and from an order denying its motion for a new trial. The injury was caused by one of defendant's cars leaving the rails and colliding ...
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The judgment appealed from was affirmed in Department, June 15, 1900 (61 Pac. Rep. 935), upon the authority of Carpenter v. SanFrancisco Sav. Union, 128 Cal. 516. A rehearing was granted upon the representation that the question upon which the Carpenter case was decided had not been presented by the plaintiff or by the defendant either at the trial in the court below or in the briefs here upon the...
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Motion by defendants to dismiss for neglect to prosecute with diligence. In 1882 plaintiffs brought the action to determine their right to the possession of certain mining ground as against defendants' right to possession. The action was brought under section 2326 of the Revised Statutes of the United States. Defendants had judgment on demurrer in January, 1882. An appeal was taken to this court a...
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This is an agreed case submitted under section 1138 of the Code of Civil Procedure. The defendant had judgment and the plaintiff appeals. The plaintiff is a constable in Stanislaus county, and performed services as such in criminal cases, for which he is entitled to compensation; and the question is whether such compensation is fixed by the act of 1895, establishing fees of county, township, and o...
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Elizabeth Adams, the executrix of the will of deceased, filed her final account, asking for its settlement and allowance. The Bank of Woodland, a creditor of said estate, filed a written contest as to certain items of the account. Findings were filed and a decree entered allowing the account and the contested items. This appeal is from the decree and an order denying a new trial. It is claimed tha...
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The appellant executed his promissory note, June 21, 1889, for the sum of three thousand seven hundred and fifty dollars, payable ninety days after date, to the order of Frank C. De Long. De Long placed the note with the First National Bank of San Francisco for collection, and on the day of its maturity the plaintiff paid to the bank the sum of three thousand eight hundred and twenty-five dollars ...
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The transcript presents two appeals by the executor; one from an order entered March 23, 1899, settling his third annual account, and the other from an order entered at the same time directing him to pay the claim against the estate of Peter A. Kearney, amounting with interest to $613. The main question involved in the appeal first above mentioned is whether the court erred in disregarding a forme...
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Plaintiffs, who are the surviving wife and children of Thomas Habishaw, deceased, sued the defendant to recover damages for the death of Thomas Habishaw, the husband and father, alleging that he was killed in defendant's mine through the negligence of the defendant and its servants and employees. The negligence pleaded consisted of the failure by the defendant to provide a flooring or lagging over...
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This is an appeal from a decree of distribution. The deceased, who died intestate, inherited the property distributed from her father. She left surviving her, her husband, and two half-sisters on the mother's side, the appellants. The whole of the property was distributed by the decree to the respondent and the appellants excluded. The case turns upon the construction of the provisions of the Civi...
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In 1889 the defendant, the Supreme Council of the Catholic Knights of America, a beneficial order incorporated under the laws of Kentucky, issued its benefit certificate to one John M. Conway, by which, upon the death of John M. Conway at a time when he was in good standing in the order, there should be paid to his nephew, Thomas J. Conway, the sum of two thousand dollars. The defendants Noonan, S...
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This action was brought to compel defendant to set forth the nature and extent of his claim on a certain promissory note purporting to have been executed by plaintiff to defendant, and to have the same determined by the court to be of no force and validity. Plaintiff and defendant were partners in the lumber business in West Berkeley, and defendant sold his interest in the business and property of...
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Winifred Fennell, deceased, was the wife of the plaintiff William Fennell. She died in the city and county of San Francisco, November 28, 1899, leaving estate therein, and the defendant Drinkhouse was duly appointed special administrator of her estate. On February 15, 1900, as such special administrator, he took possession of the sum of four thousand two hundred and twenty-three dollars and fifty-...
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Appeal from an order confirming the sale of real estate. The respondent made a sale of certain real estate of the above-named decedent under an order of the superior court authorizing him thereto, and thereafter made his return to the court setting forth that he had sold the same to the appellant herein. At the hearing upon this return the appellant filed objections to a confirmation of the sale, ...
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This action was brought by the surviving wife and minor children, for damages occasioned by the death of Joseph A. Hedge, the husband and father. Defendant appeals from the judgment and order denying his motion for a new trial. The material facts in the case are as follows: Defendant was the owner of a large fruit farm near the town of Porterville. One A.H. Schultz was the superintendent of defend...
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This action was brought in a justice's court to recover the sum of twenty-six dollars license tax for carrying on the retail liquor business in the city of Los Angeles during the months of June and July, 1899. Defendant in his answer raised the question of the legality of the ordinance under which it was sought to collect the license, and the case was transferred by the justice to the superior cou...
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Applications for letters of administration upon the estate of the above-named decedent were presented to the superior court of Kings county by the public administrator of that county, the respondent herein, and also by the appellant, a brother of the deceased. Upon the hearing thereon the court made an order appointing the respondent as such administrator, and directing letters of administration t...
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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 474 The wife is contesting the probate of the will of her deceased husband, Tolman N. Benton. The proponent of the will is Herbert A. Benton, a son by a previous wife. At the trial before a jury, the issues were limited to incompetency, and also fraud practic...
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That portion of the judgment decreeing a lien against the lands of the defendant in the sum of two hundred and thirty-eight dollars and seventy-six cents and directing a sale of said lands in satisfaction thereof is affirmed. The judgment against the defendant for the sum of eleven hundred and forty-six dollars, with interest thereon, for the paving and curbing of Laguna street is reversed, and a ...
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Appeal from an order setting aside a sale of land under a foreclosure decree. The appellants are the defendants C. Bunnell and the Germania Building and Loan Association, and Elizabeth Bunnell, who is not a party to the suit. The defendant Bunnell derived his title from the plaintiff under a deed reserving a lien for certain moneys, part of the consideration, which is the lien foreclosed. The buil...
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This case has been before the court in the past. (Carpy v.Dowdell, 115 Cal. 677.) The facts involved in the litigation are set out in detail in the decision rendered at that time, and we will now only state those which are necessary to a consideration of the questions presented upon this appeal. Defendants are appealing from a judgment of foreclosure rendered against them upon two certain notes an...
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This is an appeal from an order denying defendant's motion for a new trial in cause No. 1670, this day decided upon appeal from the judgment. *Page 500 While the original appeal (Carpy v. Dowdell, 115 Cal. 677) was pending in this court, defendants having given no stay bond, a portion of the personal property mortgaged was sold under foreclosure proceedings. The judgment upon that appeal was subs...
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Appeal from a judgment in favor of the plaintiff for the abatement of a nuisance and for damages, and from an order denying a new trial. The plaintiffs are owners of a tract of land in the city of Modesto, on which, until a short time before the commencement of the suit, they resided with their families. The nuisance complained of is an open wooden trough, passing about three hundred yards from th...
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This is an action against a notary public and his sureties for damages charged to have resulted from the negligence of the notary. *Page 506 As appears from the record, in April, 1891, one Fisher, who was a real estate broker in San Francisco, as such broker offered to sell to plaintiff ten lots of land situate in San Mateo county, then standing in the name of Charles A. Anderson. The lots were p...
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The defendant was charged in the information of the crime of an assault with intent to commit rape, and upon trial was convicted. He appeals from the judgment and order denying his motion for a new trial. *Page 513 1. It is contended that the evidence fails to show that defendant made the assault with the intent to commit rape, but that his intention was to gratify an unnatural desire, which is n...
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This action was tried before the court, findings filed, and judgment entered for plaintiff. Appellant Ganahl has appealed from the judgment on the judgment-roll. The only question necessary to be determined is as to whether the findings entitled the plaintiff to judgment against appellant. It appears from the findings that plaintiff's assignor entered into a written contract with defendant Parsons...
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On the 11th of January, A. D. 1897, the corporate defendant, the railway company, owned and was operating a street railway on Page street, in San Francisco, between Broderick and Devisadero streets. On this block the street is sixty-eight feet nine inches wide, and the sidewalks twelve feet each. From the curb on the southerly side to the nearest rail is eleven feet and four inches. The grade fro...
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Appeal from an order granting the defendant a new trial. The suit was brought to quiet title to lands described in the complaint. The defendant Reid claimed title in himself. Both parties deraigned title from one Thomas O'Donnell, the husband of plaintiff – the plaintiff, by deed of conveyance of date of July 14, 1891; the defendant Reid by a sheriff's sale under an execution against Thomas O'Donn...
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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 532 [EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 533 This is an action by the vendee of certain land and of certain shares of stock in an irrigation company to can...
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The defendant Fay was the district attorney of Kern county from the first Monday of January, 1895, to the first Monday of January, 1899, and the other defendants were sureties on his official bond as required by law. The action is to recover the sum of six hundred and thirty dollars, moneys alleged to have been collected by the defendant Fay as such district attorney, and to have been unlawfully r...
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Suit to quiet title. Each party to the action claims title to the land in controversy under the Eagle Lake Land and Irrigation Company, a corporation – the plaintiff by virtue of a sheriff's deed under two judgments rendered against the corporation, and the defendant by virtue of a sheriff's sale under a judgment foreclosing a mortgage executed by the corporation. Judgment was rendered in favor of...
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An appeal from a judgment against the defendants and from an order denying a new trial. The suit was to quiet title to two mining claims particularly described, and known as the Luella Quartz Mining Claim – and the *Page 563 Extension of the same. The former claim was located January 1, 1896, by the plaintiff; the latter by his wife, who conveyed to him prior to the beginning of the suit – he con...
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This action was brought to foreclose a contractor's lien for work and labor done and materials furnished in supplying all of the concrete and artificial stone work for the building of the defendant known as the "French Hospital" in the city and county of San Francisco. The case was tried before the court, and findings filed upon which judgment was entered for defendants. Plaintiff made a motion fo...
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The plaintiffs seek by these actions to condemn a right of way over a strip of land belonging to the defendants, for the purpose of constructing thereon a levee and canal. The two actions were tried together as a single cause, and have been presented here in a single record and upon the same argument. Certain issues were submitted to a jury and its verdict thereon adopted by the court, and additio...
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Appeal from the the judgment of the Superior court in favor of the defendant, and dismissing the action. The action involves the title to a tract of land in San Francisco held by the defendant for public purposes. The complaint was filed in 1872, and the answer thereto was filed in 1873. In December, 1875, upon the petition of the plaintiff, the cause was removed to the United States circuit court...
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Defendant was convicted on an information charging him with the crime of arson. He appeals from the judgment and from an order denying his motion for a new trial. 1. When brought into court to plead defendant moved to set aside the information, on the ground that no complaint was ever filed against him and that the warrant of arrest was issued without authority of law and the magistrate had no ...
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Emily C. Yoell petitioned for and obtained her discharge in insolvency. Written opposition to her discharge was filed by certain creditors, who had proved their debts, upon the sole ground that the insolvent had concealed a part of her estate. At the hearing no testimony was offered in support of this ground of opposition, but the attorney for one of the contesting creditors opposed the discharge ...
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This action is brought by plaintiff, assignee of his wife, to recover from the defendant, a common carrier, damages for its failure to deliver a trunk and its contents. In its answer defendant denied that the loss of the trunk was occasioned through its negligence, and further as a special defense pleaded a contract for the carriage of the trunk by which the limitation of liability for its loss wa...
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Upon January 22, 1896, A. Anderson, defendant and appellant herein, commenced an action in the *Page 592 superior court of the county of Alameda against one William Schmidt to recover a money judgment. Thereafter, on the twenty-fourth day of January, at the hour of 12:30 P.M., he caused an attachment to be levied upon certain real estate of William Schmidt, a member of the copartnership of George...
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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 599 Action in foreclosure. The appellant, John S. Reed, executed to the plaintiff July 23, 1892, his promissory note for fifteen thousand four hundred and ninety-one dollars, and at the same time, to secure its payment, executed a mortgage upon certain real e...
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Appeal from judgment and order denying a new trial. On the thirteenth day of March, 1896, one *Page 606 Helen M. Atwater was the owner and in the possession of a certain lot in Tiburon, Marin county, and a lease thereof for the term of eleven years from the fifteenth day of February, 1896, at a monthly rental of fifteen dollars per month, with a two-story frame building thereon known as the El Do...
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This is an action in partition in which the complaint alleges that the plaintiff Holt and the defendant Frances M. Holt are tenants in common, each having an estate of inheritance to the extent of one undivided half of the whole of the fee in a certain described lot in the city of Los Angeles; and that defendant Frances Bacon has a mortgage lien on the said interest of Frances M. Holt to the exten...
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This is an action to recover five thousand eight hundred and fifty-one dollars and sixty cents alleged to be due to plaintiff from defendant as taxes for the fiscal year ending June 30, 1897, on solvent credits, admitted to be owned by defendant, aggregating three hundred and forty-eight thousand seven hundred and twenty-one dollars and secured by nontaxable stocks and bonds. Plaintiff had judgmen...
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The defendants in this case appeal from an order denying a new trial. The respondent makes a preliminary motion to correct the record of the proceedings in the superior court. The facts are that the defendants, in support of their application for a new trial, served a draft of their proposed bill of exceptions, which showed that the trial judge, of his own motion, had given a certain instruction, ...
Views: 7
Action for slander of plaintiffs’ title to certain real estate. The complaint, besides stating in detail the facts constituting the slander, alleges the plaintiffs’ ownership of the property described. The answer of defendant Duvall denies all the allegations of the complaint and alleges ownership in her. The prayer of the answer is for costs and that plaintiff “take nothing by reason of his comp...
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Application of a writ of certiorari to review certain orders of said court, Department Nine thereof, adjuding petitioner guilty of contempt. The petitioner was the attorney of one Dora Levy, the executrix of the will of Michael L. Levy, deceased, whose estate was being administered in said court, and also of said Dora Levy, as guardian of the estate of one Marcus Levy, a minor, which was also pend...
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This action was brought by Martha J. Tuers, divorced wife of William J. Tuers, against William G. Tuers, Grace Patterson, his daughter, and her husband, to obtain a judgment declaring null and void a deed and transfer of his property made by defendant William G. Tuers to his daughter. The consideration for the transfer was love and affection, "and that the said Grace Patterson shall afford and giv...
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This case is before us on a motion of respondent to dismiss three appeals of appellant – from the judgment, from an order denying a motion for a new trial, and from an order made subsequently to the judgment modifying the decree as to the care and custody of the minor children of the parties. The action is for divorce brought by the wife against the husband, and was commenced in the superior court...
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Application for a restraining order. The superior court rendered its judgment in this action August 1, 1900, and it was entered of record August 6th. By the judgment the rights of the several parties to the action in certain lands described therein, and in certain waters held to be appurtenant to said lands, were defined and determined. It was also adjudged that no party to the action has any righ...
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Action upon a promissory note for the principal sum of eight hundred and thirty-two dollars, alleged to have been made and executed by James Mack to plaintiff on December 28, 1894. It is also alleged in the complaint "that on or about the twentieth day of June, 1895, the defendant Davis wrote his name upon the back of said note to give it credit, and delivered the same to plaintiff." Judgment is s...
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The respondent moves to dismiss the appeal upon the ground "that after the taking of said appeal the appellant, Tiny Freud, administratrix with the will annexed of the estate of Morris Freud, deceased, voluntarily paid to the respondent, and the respondent accepted, the whole sum of money specified in the decree appealed from, thus effecting a satisfaction of said decree." The motion is made upon ...
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The defendant was convicted of murder in the first degree, and sentenced to life imprisonment. He appeals from the judgment and from the order denying a motion for a new trial. The appellant is an Indian, evidently unlettered and ignorant. He was charged with the murder of one Jacob *Page 649 J. Veitinger, who was a somewhat elderly man, and lived alone in a small house in the country. On July 28...
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The complaint in this case contains two counts. The first declares upon a contract in writing alleged to have been entered into between Harvey J. Lewelling and Stephen W. Van Syckel, partners in business under the name and style of Lewelling Van Syckel, and the defendant gas company, August 20, 1896. It is alleged that by the terms of said contract Lewelling and Van Syckel agreed to build and ere...
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The defendant was, at all times named in the complaint, the owner of lands in Reclamation District No. 536. The assessment list, properly made and certified, was filed with the county treasurer of the county of Solano on December 4, 1891, where it remained for more than thirty days, and the assessments not having been paid, the treasurer of said county returned the same on the eleventh day of Jan...
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Appeals from an order of sale of real estate, an order settling annual account of administratrix, and an order for mortgage of real property. The several appeals will be considered in the order stated. The deceased died seised of two lots of land, described in the petition, which he devised to his widow, Tiny Freud (now administratrix), "to hold the same during her lifetime in trust for (testator'...
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The suit was brought for the foreclosure of an assessment lien on a lot of the defendants in the city of Los Angeles for sewer work. The proceedings for the assessment are set out in detail in the findings. The judgment was for the defendants and the plaintiff appeals. The ordinance for the work requires it to be done "in accordance with the plans and specifications on file in the clerk's office o...
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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 683 This is an action by the assignee of an insolvent corporation to recover from the defendants the unpaid balance of the sum bid by the defendant Ambrose for certain real property of the corporation which was sold under execution by the defendant Saunders. ...
Views: 1

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