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All Reporters → cal → Volume 202

Opinions in cal Volume 202

This action was instituted by a citizen and taxpayer of the city of Stockton against the city auditor and his surety, the city treasurer and his surety, C.O. Smith, Madeline Fotheringham and her husband, John Doe Fotheringham, to recover certain amounts of money which said officers had paid to the said C.O. Smith and Madeline Fotheringham, respectively, as salaries during the time said Smith and F...
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Certain of the defendants in this proceeding have appealed from the judgment of the superior court closing the Ventura Hotel, in the city of Ventura, for four months, under the provisions of the National Prohibition Act. [1] Section 949 of the Code of Civil Procedure providing for the stay of proceedings in the court below upon the judgment or order appealed from, as amended, declares that the per...
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This is an application for a writ of mandate to compel the respondent Superior Court and the judge thereof to dismiss an action pending in said court for the foreclosure of a mortgage on real estate and entitled Frank Freeman v. Charles L. Donohoe, Charles L. Donohoe Company, a Corporation et al. The Charles L. Donohoe Company, the petitioner herein, presented a motion in the trial court to dismis...
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The petitioners, consisting of a considerable number of the employees of the department of public works of the city and county of San Francisco, have applied for a writ of mandate whereby they seek to have this court direct the board of supervisors of said city and county and the members thereof to adopt a tax rate and levy a tax for the fiscal year ending June 30, 1928, sufficient to pay the sai...
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THE COURT. A hearing in this court was granted after decision by the district court of appeal in and for the third appellate district (53 Cal.App. Dec. 813), for the reason that, while satisfied with the reasoning of said opinion, we arrived at the conclusion that the order of reversal and direction to the trial court with which the same concludes should be modified. We therefore adopt the opinion...
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Plaintiffs brought this action to enjoin the defendants from diverting the waters of a stream known as "Johnson's North Canyon," and from interfering in any way with the flow of said waters to plaintiffs' lands through ditches thereon. Plaintiffs' land does not border on the stream and their rights have been acquired by appropriation. From the judgment of the trial court to the effect that plainti...
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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 49 This is an appeal from a judgment of the superior court of Lassen County, which enjoins defendant and appellant from conducting the water of Bagwell Springs through a pipe-line constructed by appellant in 1924 from Bagwell Springs to its mill-pond on the s...
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The purpose of this action is to settle and determine the respective claims of plaintiff and defendant to the waters of Fall River in Shasta County. By its second amended and supplemental complaint plaintiff claims a right to the first continuous flow of said stream as against defendant to the extent of 240 cubic feet per second, basing said claim upon the provisions of two permits issued by the d...
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THE COURT. The hearing by this court was granted herein after decision by the district court of appeal in and for the third appellate district, wherein the judgment of the trial court was affirmed, in order that further consideration might be given by this court to the question presented upon this appeal. Upon such further consideration this court is satisfied with the correctness of the decision ...
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Appellant was convicted and sentenced to pay the death penalty for murder of one Andrew Pashuta. In support of his appeal from the order denying a new trial he urges insufficiency of the evidence to justify conviction for first degree murder, the elements of premeditation and deliberation being, so it is claimed, wholly unproved; erroneous instructions given by the trial court to the jury, and pre...
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Application for writ of mandate to compel respondents to appropriate for the conduct of the department of elections the respective amounts itemized and set forth in its budget estimate and to adopt and levy a tax rate sufficient to provide for the amount set forth herein. Writ denied. The above causes have been consolidated in the argument presented therein to this court, and as they present the s...
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This action was instituted to recover the purchase price of eight oriental rugs purchased by plaintiff of defendant. The ground upon which said recovery is sought is that defendant falsely and fraudulently represented the quality and character of said rugs at the time of their purchase. The case was tried by the court without a jury, and judgment rendered in favor of the plaintiff for the full amo...
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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 112 [EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 113 This is an original application for a writ of mandate by the Board of Education of the City and County of San ...
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This is an appeal from an order granting motion of respondents for nonsuit and denying the petition of appellant for admission to probate of an alleged codicil to the will of Mathew Kelleher, deceased. *Page 125 Decedent, on February 9, 1914, while visiting in Ireland, made a will in which he named respondent Richard T. Pomeroy as one of the executors and Daniel Kelleher of Boston, his cousin, as...
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THE COURT. This is an appeal from a decree of partial distribution entered by the superior court in and for the county of San Diego. The decedent, Anna Edwards, died intestate, leaving as her estate property which she had inherited from her deceased husband. From the record it appears that the decedent left surviving her certain brothers and sisters, and also certain children of a deceased brother...
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This is an action by plaintiffs under section 749 of the Code of Civil Procedure to determine adverse claims to what is known as lot 13 of the Whitworth tract, county of Los Angeles. The real dispute centers around the easterly 42.1 feet of said lot 13. It appears that on the twentieth day of January, 1883, and for some time prior thereto, one Christopher Greve was the owner of a tract of land ...
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The appellant, S. B. McFarland, filed a petition in the superior court in and for the county of Los Angeles for the probate of a document which he alleged to be the last will and testament of Robert S. Parker, deceased. The petition alleged that the value of the estate was approximately $3,900; that testator left no heirs at law; that at the time the document in question was executed testator was...
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By the complaint in this action it is alleged that on June 29, 1922, plaintiff's assignor, a contractor, entered into a written agreement with defendant whereby said contractor agreed to furnish the necessary labor and materials required for the construction of a one-story brick and concrete garage in San Francisco, and said defendant agreed to pay to the contractor therefor the sum of $3,000; tha...
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This is an appeal from a judgment of conviction of the defendant upon the charge of murder and from the order denying the defendant a new trial. The homicide, if committed as charged in the information, occurred on the twenty-seventh day of January, 1926, in the city of Sacramento, where at the time the defendant resided with his wife and their three minor children the eldest of which was a girl, ...
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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 161 Defendant was charged by information containing a number of separate counts, with the making, forging, altering, and counterfeiting of certain checks and contracts. The jury found him guilty of the crime of forgery and from a judgment entered upon that ve...
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By an information filed in the Superior Court of Alameda County[1] Jesus Prudencio was charged with the crime of murder committed October 14, 1926, as follows: ". . . that he did then and there unlawfully, wilfully, feloniously and of his malice aforethought, kill and murder one Antonio Garcia." The foregoing was an allegation of murder of the first degree and included all the subdivisions and les...
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This action was commenced by plaintiffs to quiet title to certain parcels of real property in the city and county of San Francisco, alleging that they were tenants in common of the same. The city and county of San Francisco filed a formal answer thereto, but no proof was made by them at that trial. Francis J. Sullivan filed an answer asserting that "he has a right, title and interest in the real p...
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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 181 By this proceeding petitioner seeks to have reviewed and annulled a decision and order of the Railroad Commission, designated decision No. 16289, made on March 20, 1926, relating to its water rates, complaint being made of the valuation of its property fo...
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A former judgment of reversal in this case was set aside on petition for rehearing in order that further consideration might be given to the contentions of the defendant. Upon such further consideration we are unable to arrive at a different conclusion. Two actions were brought by plaintiff based on amounts claimed to be due on interest coupons detached from certain bonds of the defendant Irrigati...
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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 207 This is an appeal from an order admitting the will of decedent to probate. The Security Trust and Savings Bank of the city of Los Angeles filed a petition in the superior court of the county of Los Angeles for the probate of the holographic will of Harry ...
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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 217 [EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 218 This is an appeal from judgment in favor of defendants in an action, under sections 3439 and 3442 of the Civil...
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This appeal was taken by the defendant Title Insurance and Trust Company, a corporation, from a judgment entered in favor of the County of Riverside decreeing the foreclosure of a lien upon defendant's real property as security for the payment of a charge of $1,260.71, including interest and costs, on account of expenses and costs incurred by said county in the abatement of a nuisance after notice...
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Proceeding brought to review and annul an award made by the Industrial Accident Commission in favor of Louisa Mosteiro for the death of her husband, Segismundo Mosteiro, who was killed by the falling walls of the San Marcos building in the city of Santa Barbara. Segismundo Mosteiro was employed as a janitor in said building. The walls of the building collapsed during an earthquake which occurred i...
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THE COURT. A hearing of this proceeding by this court was granted for the purpose of further considering it in connection with the case ofLondon Guarantee Accident Co. v. Industrial Acc. Com.,ante, p. 239 [259 P. 1096], in which we have this day filed an opinion affirming the award. We are satisfied with the opinion written by Mr. Presiding Justice Works when this proceeding was before the distri...
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This cause was transferred to the supreme court after decision and judgment in the second division of the district court of appeal of the first district, on petition of the appellant, who. contends that the decision is in error in holding, first, that the representations made by the defendant were merely statements of his opinion, and not of facts, and, second, that the plaintiff treated the answ...
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Maud Wilson Levitt, respondent here, a niece of Anna M. Graves, deceased, and her only heir, filed a contest, after probate of the will of the decedent, alleging unsoundness of mind of the testatrix at the time of the execution of the document, and that the will was procured by the undue influence of John R. Black, appellant, to whom the decedent bequeathed practically her entire estate. After due...
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This appeal is from an order made after final judgment quashing the levy of execution upon the judgment obtained by the plaintiff against the municipality, and which execution had been attempted to be levied on certain real estate of the municipality, which property had, in other years, been used for the purposes of a public jail, but which, having ceased to be used for that specific purpose, was,...
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Claus Albert Clausen died testate April 3, 1925, a resident of the county of Marin, this state. He was unmarried and left neither children, nor father, nor mother surviving him. He left as his sole heirs at law seven brothers, three sisters, and four children of a deceased sister and five children of a deceased brother. By his will he bequeathed and devised to his brothers and sisters and to the c...
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An interlocutory decree was rendered in the court below by which the plaintiff was granted a divorce from the defendant on the ground of her wilful desertion. The custody of the minor child of the parties, a son, of the age of about three years, was, by consent, awarded to the defendant, but no provision was made in the decree for the support of the child. In due course a final decree was entered....
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The respondents move the court for an order requiring the clerk of the superior court of the state of California, in and for the county of Stanislaus, to file herein a supplementary clerk’s transcript setting forth certain proceedings in the above-entitled action occurring in said court subsequent to the taking of said appeal and the preparation and filing of the transcript on appeal herein, and ...
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This is an appeal from a judgment in favor of the plaintiff on three promissory notes dated December 11, 1920. Each note was signed by the defendant as maker. The first one sued on was made in favor of Anna Nulty, wife of the plaintiff, in the sum of $6,225, and was assigned to the plaintiff before the action was commenced. The second and third notes were made in favor of the plaintiff in the sums...
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This is an appeal from an order denying in part a petition for partial distribution. The decedent, John D. Daly, died testate on the first day of January, 1923, at the age of eighty years. His will, of date September 8, 1912, and codicils thereto dated June 2, 1922, and November 17, 1922, were duly admitted to probate. On January 25, 1923, the son and a son-in-law of the decedent qualified as exec...
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[1] Victor L. Jacobsen, an attorney at law, admitted to practice in this state, was duly convicted of a felony involving moral turpitude, and the clerk of the superior court for the county of Los Angeles, the court in which such conviction was had, has transmitted to this court a certified copy of the record of conviction. The defendant did not appeal, and in that regard the judgment of conviction...
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Plaintiff sued as the purchaser for value of over two hundred street bonds issued by the city of Richmond in the year 1917 under the Street Improvement Act of 1911 (Stats. 1911, p. 730). Judgment went for the plaintiff for the amount prayed and also for the foreclosure of separate liens upon the lots involved. The defendant Mintzer Estate Company was the owner of a mortgage upon the property upon ...
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THE COURT. Motion to affirm judgment on the ground of the failure of appellant to print or set forth in his brief or any supplement thereto, in accordance with the requirements of section 953c of the Code of Civil Procedure, any part of the record herein sufficient to justify a reversal of said judgment. The action was instituted for the purpose of canceling two certain deeds of conveyance of real...
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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 301 This is an appeal by the plaintiff from a judgment against her in an action brought to restrain the members of a board of school trustees "from attempting to deprive plaintiff of her position as a permanent teacher in the schools of the city of Napa." *Pa...
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Emma A. Stump, a widow, died, leaving a will by which she gave the sum of one dollar to each of her eight brothers and sisters, and the remainder of her property to a nephew, Roy Zediker, and his wife, in joint tenancy. After the document was admitted to probate, David S. Zediker, a brother, Laura All, Susan Woodward and Carrie Foster, sisters, instituted a contest, alleging as grounds of oppositi...
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This is an action in interpleader instituted by the Metropolitan Life Insurance Company against the appellant, Marietta Gross, and the respondent, Lawrence J. Welch, who were formerly husband and wife. On October 28, 1903, and while appellant and respondent were husband and wife, a policy of insurance was issued by the plaintiff, the Metropolitan Life Insurance Company. This policy *Page 314 prov...
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THE COURT. Plaintiff and appellant herein presents a motion that this court vacate and set aside an order heretofore made which said order authorized the withdrawal of the transcript in this cause from the files of this court for the purpose of correcting and amending the same. The action was instituted to recover damages for injuries suffered by the plaintiff as a result of the defendant's allege...
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This is an appeal from a judgment in an action by the payee against the maker and indorser of a promissory note for four thousand dollars. The maker, L.D. Allen, defaulted in the action, and after a trial of the issues framed by the complaint and the amended answer of the indorser, Mary A. Ruggles, the trial court, sitting without a jury, gave judgment for the plaintiff for the principal *Page 328...
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This appeal is from a judgment rendered and entered by the superior court in and for the county of San Mateo in favor of the plaintiff as the assignee of Archibald M. Johnson and against the defendant, for the sum of $4,911.79 principal, $220.71 interest, and $41.10 costs. The action for the recovery of said sum was founded upon a contract in writing between the defendant and plaintiff's assignor,...
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Petition for writ of habeas corpus by William Wilson, wherein said petitioner, among other matters, alleges as follows: "On or about February 21, 1922, petitioner pleaded guilty to an information filed against him in the superior court of Kings county, charging him with violation of section 464 of the Penal Code, namely, burglary with explosives, and that by reason of said imprisonment (plea) he w...
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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 347 This is an action brought by a taxpayer of the city and county of San Francisco, on behalf of said municipal corporation, to compel the defendants, other than the municipal corporation, to pay into the treasury of the municipality $2,888,537 because of th...
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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 361 [EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 362 [EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE T...
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Plaintiff appeals from a judgment against it after a demurrer to the complaint had been sustained and plaintiff had declined to amend. The complaint, after alleging the corporate capacity of the parties and the nature of their respective businesses, as disclosed by their corporate names, sets out, in the first count, that one of the power lines of the defendant extends from the city of Sacramento ...
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The plaintiffs herein, who, as copartners doing business under the firm name and style of Guy Hyde Chick Company, are real estate brokers, commenced this action to recover the sum of two thousand dollars from the defendant, alleged to be due as commission for the plaintiffs’ services in the matter of the sale of certain real estate in the city of Berkeley. The basis of the plaintiffs’ claim consi...
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Plaintiff and appellant seeks by this action to have a deed executed by him to defendant Walter F. Price declared to be a mortgage, and to quiet his title to the land described therein. The complaint alleges plaintiff's ownership of certain real property valued at $8,000; that about December 3, 1923, as security for an interest-bearing note of $900 he executed a deed of grant, purporting to convey...
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This proceeding comes to us for decision by reason of an order made by this court granting petitioner a hearing herein after decision rendered by the district court of appeal denying petitioner's application for a peremptory writ of prohibition. Prior to the adoption by the people, at the general election held in this state on November 2, 1926, of the constitutional amendments proposed by the stat...
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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 411 [EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 412 The facts of this case are more specifically set out in the opinion of the court of appeal, second district, d...
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This appeal purports to be from two orders or judgments of the Honorable Frank H. Dunne, judge of the superior court of the city and county of San Francisco, in the matter of the estate of Johann Diedrich Siemers, deceased. One of said orders or judgments, it is claimed by appellants, is an order and judgment of said court dated January 30, 1925, admitting to probate an alleged will of said deceas...
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THE COURT. This proceeding comes before this court after decision by the district court of appeal, second district, first division, Mr. Justice Houser having written the opinion for that court. We are in accord with said *Page 439 opinion in many respects and adopt and approve the following portion thereof: "Certiorari. "The purpose of this proceeding is to review certai...
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THE COURT. This mandamus proceeding arose out of an action entitledTasker v. Cochrane, wherein the petitioner as plaintiff and assignee of a law firm sought to recover attorney's fees for services alleged to have been rendered by her assignor. After trial of said action, the jury returned a verdict in favor of petitioner and judgment was accordingly entered thereon. Upon motion duly made the respo...
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This is an appeal from a judgment of nonsuit upon the trial of a contest of the last will and testament of Angiola Bacigalupi, deceased. The contest of said will was instituted by Lino Arata, one of the nephews *Page 452 and heirs at law of said decedent, in the form of a petition to revoke the said will of the decedent which had theretofore been admitted to probate. The contestant in his petitio...
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Proceedings in certiorari to review an award of the Industrial Accident Commission in favor of William Shortall, who was employed as a mechanic by the Ford Motor Company. While so employed, and on the twenty-ninth day of July, 1921, he sustained an injury to his back. This injury arose out of and in the course of his employment, and consisted of a fracture of the spine, with a series of sprained l...
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This is a motion to dismiss an appeal from a judgment in favor of the plaintiff rendered by the superior court in and for the county of Imperial. The action is one to recover damages for personal injuries sustained by the plaintiff, which were alleged to have been caused through the negligent operation of an automobile. The cause was tried by a jury and a verdict in the sum of $4,000 was returned ...
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This appeal is from a judgment in the sum of $5,120.25 entered upon the verdict of a jury trying said cause against appellants and in favor of respondent on account of injuries and damages sustained by respondent as the proximate result of a collision between a heavy automobile truck owned and operated by the Shell Company of California and upon which respondent, while engaged in the course of his...
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In November, 1925, Anna Grazide Alvarado and William P. Alvarado commenced action No. 182,980 in respondent Superior Court against A.A. Stanton, Fannie Stanton, his wife, et al., the complaint alleging their ownership of certain real property theretofore leased to defendant A.A. Stanton for oil-drilling purposes; failure of defendants to perform the conditions of such lease and its termination. Th...
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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 492 This is an appeal from a judgment admitting to probate the last will and testament of Fred Phillips, deceased. The proponent and respondent, Mrs. Kathryn Pfeiffer, and the contestant and appellant, George E. Mills, are strangers to the blood of the deceas...
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THE COURT. This is an appeal from a judgment for costs entered March 3, 1926, against the contestant, George E. Mills, following a judgment admitting to probate the will of date February 3, 1922, as the last will of the decedent. The contest was determined in the trial court and on appeal in favor of the proponent of the will. (Estate of Phillips, ante, p. 490 [261 P. 709].) In ordering that said ...
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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 503 This is a suit by plaintiff below, respondent's testate, an attorney at law, against the defendant below for a balance of $1,000 claimed as an attorney's fee. The complaint is in two counts, the first in special assumpsit on the contract of employment, al...
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Plaintiff below, respondent's testate, an attorney at law, was employed by defendant below and one B.F. Culley to perform legal services for said parties in connection with certain criminal charges filed against them. At the time of employment defendant and said Culley each paid plaintiff a fee of $350, but later, and prior to dismissal of the charges against them, they dispensed with his services...
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THE COURT. This action was instituted by the plaintiff to quiet her title to certain real property situate in the county of Los Angeles. The court found the allegations of the complaint to be true and entered judgment as prayed *Page 514 for. From this judgment the defendants prosecuted their appeal. It appears that a mortgage had been executed upon the said real property at a time prior to the c...
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This is an application by an employer and its insurance carrier for a writ of certiorari to review an order of the Industrial Accident Commission awarding compensation to respondent Arthur Eckstrom for injuries which he received in an automobile collision. The Commission found that Eckstrom sustained these injuries in the course of and arising out of his employment; that he was performing services...
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This is a proceeding to review an award of the Industrial Accident Commission in favor of Alexander Michie. Petitioner is the insurance carrier of the employer. The award is sought to be annulled on the ground that the finding of the Commission that the injury arose out of and in the course of the employment is without evidence to support it. Alexander Michie was an automobile repairman in the ...
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Defendant appeals from a judgment imposing upon him the death sentence after a jury had found him guilty of the murder of Joseph J. Patterson in Orange County, California. The information charged the defendant and one Allison Dewey, whose true name appears to be Gaines, with the crime. Separate trials were had, the defendant herein being first brought to trial and the testimony of defendant Gaines...
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THE COURT. This is an appeal from a judgment in favor of defendants in an action brought by plaintiffs to quiet title to some twenty-one lots situate in the city of Stockton and to enjoin the defendants from asserting any adverse claim or interest therein. By way of answer and cross-complaint the defendants admit plaintiffs' title to the lots, but claim and assert certain street assessment liens t...
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Petition for writ of mandate directing and compelling respondent, as assessor of the county of Ventura, to pay to H.R. Vandelinder, as treasurer of said county, the sum of $8.85 now retained by said respondent for his own use, as six per cent of the sum of $147.60 collected by him as taxes on unsecured personal property within the said county belonging to Star Petroleum Company, a corporation. [1]...
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This is an ordinary action in ejectment with a prayer for $10,000 in damages for the unlawful withholding of possession of the premises described in the complaint. The foundation of the action is an allegation of title and the right of possession thereunder and the wrongful withholding thereof by defendants. The defendants admit title in plaintiff and also admit their possession of the premises, b...
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The complaint in this action alleges the execution by defendants to plaintiff of two promissory notes, each for $2,000; a payment of $1,000 on account of the first note and the balance of $3,000, plus interest and attorney fees, due, owing, and unpaid. It appears that in 1923 plaintiff and one Shattuck, owners of Shattuck Nimmo Warehouse Company, a corporation, entered into a written agreement fo...
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This is an appeal from judgment in favor of plaintiff in an action to recover an alleged commission of $3,000 earned by him in the sale of certain real estate owned by defendant. The trial court found in substance that defendant, by written agreement of January 8, 1924, employed plaintiff, a duly licensed real estate broker, to sell his said property for $78,000, payable upon the terms stipulated ...
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This is an appeal from a judgment of nonsuit made and entered in favor of the defendant, J.F. West after the court had granted the said defendant's motion for a nonsuit at the close of the plaintiff's case in an action for damages brought by the plaintiff against said defendant West and certain other defendants for the recovery of damages alleged to have been sustained as the result of an automobi...
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This is an appeal from a judgment in favor of the plaintiff and against the defendant Reuben N. Erickson, in an action to quiet title. The plaintiff based his right of recovery in said action upon a tax deed issued to him in consequence of a tax sale of the premises in question had on the twenty-seventh day of June, 1924, wherein the tax collector offered said premises for sale to the highest bidd...
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This is an appeal from a judgment of the superior court of the county of Los Angeles in favor of *Page 587 the defendants in an action instituted by the plaintiff as assignee of certain claimants to recover upon a bond upon which the defendant The Republic Casualty Company was a surety, and which bond its principal, The National Construction Company, a corporation, caused to be executed in connec...
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This is an appeal by the defendants Dana G. Bing and Anna H. Bing from a judgment rendered against them and each of them and also against their minor son, Gerald Bing, in plaintiff's favor in an action instituted by the latter to recover damages for personal injuries alleged to have been sustained as the result of a collision between two automobiles, one of which was being driven by said minor son...
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The license of petitioner, Dr. W.W. Homan, a duly licensed dentist under the laws of this state and engaged in the practice of dentistry in the city and county of San Francisco during the year 1924, was, on December 4, 1925, by an order made by the Board of Dental Examiners of this state, revoked. The revocation was placed upon the ground that petitioner was "guilty of the acts charged in the accu...
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THE COURT. Action against an estate to recover for services claimed to have been rendered by plaintiff at the special instance and request of the deceased. There were two demands set up in the fourth amended complaint under which the proceedings involved herein were had. One was for services rendered between the years 1866 and 1876 and the other for services rendered prior to the year 1894. For th...
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The court below gave a default judgment for the plaintiff, Hammond Lumber Company, a corporation, against defendants Barth Investment Corporation, Isaac Barth and A. Barth for $3,041.59, the contract price of building materials furnished and labor performed by *Page 603 plaintiff in connection with the construction of a building on premises situate in the city of Los Angeles and owned by defendan...
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This appeal, which is from the judgment-roll, involves some questions of law similar to those decided in Hammond Lumber Co. v. Barth Investment Corp., ante, p. 601 [262 P. 29], and as to such questions that case is decisive. Carl Hellman and Anna Hellman were owners of a lot situated in the city of Los Angeles. C.A. Barth and Barth Investment Corporation contracted with said owners to erect upon s...
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This appeal is from a decree approving the second current account of Mary L. Finch, executrix of the last will and testament of Allen Finch, deceased. Allen Finch died on the thirty-first day of December, 1914, leaving a last will and testament by the terms of which Mary L. Finch, the wife of said deceased, was devised and bequeathed one-half of the entire estate of the testator, and was also appo...
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In this action to quiet title the plaintiff had judgment from which the defendants appeal. The defendants contend that plaintiff offered in writing to put the defendant, William R. Adams, and his family on the *623 land in question for the remainder of plaintiff’s life; that the defendants accepted the offer and that under this agreement the plaintiff was to have one-half of the crops raised on...
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Appeal by plaintiff from a judgment against it in an action to foreclose a mechanic’s lien upon property belonging to defendant J. W. Kennedy. It is *625 alleged that plaintiff delivered to defendant Pile, a building contractor, certain lumber and other building materials to be used in the erection of a dwelling-house on real property in Orange County, California, which was owned by defendant J...
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This appeal is from a judgment in favor of the plaintiff in the sum of four thousand dollars rendered upon the verdict of a jury in an action to recover damages for injuries sustained by the plaintiff, a boy of the age of eleven years, while engaged in riding a bicycle operated by his brother, who was of the age of thirteen years at the time of the accident in question, which accident arose out of...
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At the time of granting a hearing of this cause, after a decision thereof by the district court of appeal, we entertained some doubt as to whether the facts of this case as found by the court did not bring it within the rule announced in the cases of the Denver Rio Grande R.R. Co. v. Robinson, 6 Colo. App. 432 [40 P. 840]; Missouri K. G. Ry. Co. of Texas v.Lovell, 110 Tex. 546 [221 S.W. 929]; In...
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This appeal is from a judgment of the superior court in and for the county of Solano, based upon the verdict of the jury in favor of the plaintiff in the sum of $2,000 and costs, in an action brought by the plaintiff to recover damages from the defendant resulting from the destruction of a dwelling-house of the plaintiff through a fire which was alleged to have been caused by contact with the elec...
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This is an appeal on the judgment-roll alone from a judgment of the superior court of the county of Los Angeles directing defendant, Hammond Lumber Company, upon receipt of $700 from the plaintiffs, or any of them, to reconvey, release, and discharge a deed of trust executed by plaintiffs W.P. Dyer and Katie Dyer, his wife, in favor of defendant as security for the payment of $1,500. The court fou...
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There is no merit in this appeal. Appellant claims that the court erred in denying her motion for judgment on the pleadings.[1] This motion was based upon the ground that the answer admitted the indebtedness set forth in the complaint, and to recover which the action was instituted by plaintiff. The answer denies in apt language the allegations of the complaint. It is contended, *Page 648 however...
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This is an appeal from a judgment in favor of the plaintiff in an action to have it declared that certain real property, title to which stands in the name of decedent, was held by him in trust for plaintiff and to have her title thereto quieted. The sole ground of appeal is that the complaint fails to state a cause of action. In addition to other allegations not necessary to be mentioned, the c...
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The petitioners, who allege that they are "the duly appointed, confirmed, qualified and acting members of the board of trustees of the La Ballona High School District, formerly Union High School District," have instituted an original proceeding in mandate to compel the board of supervisors of the county of Los Angeles to include in the annual levy a special tax on property within certain territory...
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Appeal by plaintiff from a judgment against him in an action in which he sought specific performance of a contract with reference to oil and gas leases upon land in Canada, with a prayer for incidental and alternative relief. The plaintiff acted as the trustee or agent of a syndicate known as the Underwriters of the Consolidated Petroleum Company in making the contract involved herein, and sues...
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This is an appeal from a judgment of the superior court of the county of Los Angeles directing a dismissal of this action after an order of the court sustaining the demurrer of the defendants to the plaintiff's amended complaint. The action was instituted by the plaintiff for the purpose of obtaining an injunction restraining the respondent, City of Burbank, a municipal corporation, and also its c...
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Plaintiff brought this action to quiet her title to certain land in Los Angeles County. The complaint is in the usual form. In their second amended answer the defendants set up as their interest in said land a contract of purchase dated October 25, 1924, wherein the plaintiff agreed to sell and the defendant Simeon Lagasse agreed to buy said land for $7,750 and assume a mortgage of $6,000 on the ...
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Plaintiffs sued as husband and wife to recover damages alleged to have been caused by the negligent treatment of the wife by the defendant, who was a practicing dentist. The cause was tried before a jury, which rendered a general verdict in the sum of six thousand dollars, and from the judgment following the verdict the defendant has appealed. The charge of negligence is based upon the claim that ...
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Leonard Ovid Vaughan died testate, leaving an estate which was subsequently inventoried in an amount in excess of $230,000. By the terms of the will practically the entire estate, all of which was declared by *673 the testator to be his separate property, was divided among the decedent’s children, grandchildren, and other relatives. He bequeathed to his wife, Grace B. Vaughan, “one thousand dol...
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This is an appeal by plaintiff corporation from judgment dismissing from the action certain defendants, following order sustaining general demurrers separately interposed by them, plaintiff having declined to amend. The defendants who had judgment are Frank E. Woods and Nancy E. Woods, husband and wife, and Bank of America, a corporation. The complaint attempts, and we think successfully, to plead...
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Plaintiff recovered a judgment against defendants as damages sustained by plaintiff as a result of an operation alleged to have been negligently performed on plaintiff's face by the defendant, Doctor Foster M. Hull. [1] Defendants ask a reversal of the judgment on the ground that the complaint fails to state sufficient facts to constitute a cause of action for malpractice, and that the evidence is...
Views: 16
This appeal was taken from a judgment decreeing a deed purporting to convey valuable property, wherein appellant was the grantee and his wife, Jean Way Jaequelin, since deceased, was the grantor, to be a forged instrument, for an accounting of rents, issues, and profits, and quieting title to said property described in said forged instrument. Decedent, Jean Way Jaequelin, a resident of the city...
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By this proceeding the petitioner seeks to annul an award made by the Industrial Accident Commission to George Abram in so far as said award applies to the owner of a daily newspaper, of which the petitioner is the insurance carrier. The relationship of employer and employee between the newspaper proprietor and Abram is admitted, but it is contended that at the time of the injury for which compens...
Views: 9
Action by plaintiff to quiet her title to two parcels of real property in the county of Los Angeles. The defendant McMann is a judgment creditor of Warren Gillelen, the husband of plaintiff and her predecessor in title to one of the parcels of property, and the other defendant named is the sheriff, who has levied a writ of execution issued upon said judgment upon the property in question and adve...
Views: 1
This is an appeal by the plaintiff from a judgment in favor of the defendants in an action to quiet title to real property. The complaint was filed in December, 1924, by plaintiff as administratrix with the will annexed of the estate of William Hobbs, deceased, against the defendants *Page 696 as executors of the last will and testament of Anna Hobbs, deceased, to determine which of the two estat...
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Appeal by plaintiff from a judgment against him, in an action in which he sought to enjoin the defendant Dorrington from erecting and operating a “gasoline service station and garage” upon a triangular plot of ground “at the center of the intersection of Irena, Jaspar and Opal streets in the City of Redondo Beach, Los Angeles County, California. ’ ’ Plaintiff alleged that he is the owner of cer...
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THE COURT. This is an appeal by the defendant from a judgment rescinding and canceling a written contract. On February 28, 1922, and at divers times thereafter, the agents of the appellant company are alleged to have represented to the respondent, among other things, that said company had for sale a certain motor-truck and trailer; that said vehicles were in good mechanical condition and available...
Views: 13
Action brought to foreclose a mechanic's lien. The plaintiff and defendant, Joe Siegel, entered into a contract whereby plaintiff was to construct a frame dwelling-house and garage upon a certain lot owned by defendant Siegel situated in the city of Anaheim, county of Orange, and for which said defendant agreed to pay plaintiff the sum of $2,850, $1,000 of which sum was paid. Work under this contr...
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The defendants were the owners of certain real property abutting on Preuss Road, a public thoroughfare along the boundary line between the cities of Los Angeles and Beverly Hills. The defendant owners subdivided the acreage and dedicated for public street purposes a strip of land ten feet in width along the easterly side of the thoroughfare which had the effect of widening the same from sixty to ...
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This appeal is from a judgment in favor of the plaintiff in an action for damages arising out of a gas explosion occurring at San Pedro harbor, whereby the plaintiff was injured, which he alleges occurred through the negligence of the appellant, Southern Counties Gas Company. The facts of the case as shown by the evidence, which is not in substantial conflict, are briefly as follows: The appellan...
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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 719 This is an application for a writ of prohibition directed to the respondents herein, the Superior Court of San Bernardino County and the judges thereof, preventing further action in a proceeding instituted in said *Page 720 court under the provisions of ...
Views: 8
This proceeding in eminent domain was instituted in August, 1924, by the City of Los Angeles under the Park and Playground Act of 1909 (Deering's Gen. Laws 1923, Act 6373). Exceptions to the report of the referees were filed by defendants Peder S. Pedersen and Catherine Pedersen, owners of the land in question, and by defendants T. Ishikata and S. Inouye, doing business under the firm name and sty...
Views: 11
The petitioner applied for a writ of prohibition whereby he sought to have the respondents, the Superior Court in and for the City and County of San Francisco, and the Judge thereof, required to refrain and desist from further considering the contempt proceeding instituted in said court in an action for separate maintenance pending in said court, wherein the petitioner is the defendant and his wif...
Views: 9
Action by plaintiffs to recover for loss by fire of an automobile truck under a policy of insurance issued by the defendant. The court found that the plaintiff Union National Bank of San Diego was the owner of a chattel mortgage on said truck given to secure the payment of a promissory note for $1,500 and interest executed by the plaintiff O.J. Wyman. It further found that the defendant on April 8...
Views: 5
This is an appeal from a judgment for defendant in an action brought by the Manker Shoe Company, plaintiff's bankrupt, on three promissory notes of the defendant, dated September 19, 1922, the principal sums aggregating $5,000. Defendant's answer admitted the execution and delivery of the notes, but as affirmative defenses alleged that the notes were given for 5,000 shares of the Manker Shoe Compa...
Views: 9
Defendants have appealed from a judgment against them for seven thousand two hundred dollars. The action was brought to recover the amount of money paid by plaintiff under an agreement whereby the defendants were to transfer to him the exclusive sales right, in certain territory, of a patented compression inner tube for automobile tires, and to furnish him, at an agreed price, twelve inner tubes a...
Views: 5
Action to quiet title. The complaint is in the form usually employed in an action of that nature. In a second count, however, the plaintiffs alleged that defendant claims an interest in said real property under a deed purporting to have been executed by plaintiffs to one Hester Thompson, but that plaintiffs never executed said deed, and that said deed was false, fraudulent, and forged. Defendant *...
Views: 4
This is an appeal from a judgment for the defendant in an action brought by plaintiffs for a commission alleged to have been earned by them in negotiating a sale of real property for the defendant. The amended complaint alleged that plaintiffs were duly licensed real estate brokers in the county of Los Angeles; that on October 26, 1923, they entered into a contract with the defendant wherein and w...
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This is an appeal from an order of the superior court of the county of Los Angeles made and entered under the provisions of section 1822 of the Code of Civil Procedure, which relate to the appointment of a trustee for the estate of a missing person in order that the property of such person may be given proper care and attention. The appellant disappeared while living in the county of Los Angeles ...
Views: 1
This is an appeal from a judgment enjoining the defendant from maintaining a dam or artificial obstruction in the channel of Logan Creek, sometimes called Rogers Creek, in Santa Cruz County. It was alleged by the plaintiffs and found on sufficient evidence that the plaintiffs Santos Omnes and Elsie Omnes, his wife, are the owners of lands riparian to said stream and have been such owners and have ...
Views: 7
This action was brought to recover damages, which the complaint alleges the plaintiff’s assignor sustained by the breach of a certain contract for the purchase and sale of two lots of wine described in said contract. This contract was dated October 7, 1918, and was signed by Angelo Cassani, the then owner of the wine, who was also the original defendant in this action. Upon his death, subsequen...
Views: 2
Action brought to recover upon a claim against the estate of John D. Spreckels, Jr., deceased. The claim was based upon an agreement whereby, it is contended, the deceased guaranteed the payment to appellant of the sum of £16,500, lawful money of the kingdom of Great Britain (equal to $80,350 in lawful money of the United States), being the cost price of a pearl necklace purchased of appellant by ...
Views: 9
MEMORANDUM CASES. This is one of three motions to dismiss appeal. During the administration of the estate of Leonard Ovid Vaughan, deceased, the court below made an order confirming the sale of real property made by the executor. Edna Vaughan Daniels, a daughter of the deceased, and one of the persons entitled to a specific bequest of one thousand dollars under the provisio...
Views: 2
This is one of three motions to dismiss appeal. During the administration of the estate of Leonard Ovid Vaughan, deceased, the court below made an order confirming the sale of real property made by the executor. Edna Vaughan Daniels, a daughter of the deceased, and one of the persons entitled to a specific bequest of one thousand dollars under the provisions of the will of the decedent, appealed. ...
Views: 0
This is one of three motions to dismiss appeal. During the administration of the estate of Leonard Ovid Vaughan, deceased, the court below made an order confirming the sale of real property made by the executor. Edna Vaughan Daniels, a daughter of the deceased, and one of the persons entitled to a specific bequest of one thousand dollars under the provisions of the will of the decedent, appealed. ...
Views: 0
THE COURT. [1] In this proceeding, while the facts are different from those involved in the decision of the matter of Mojave RiverIrr. Dist. v. Superior Court, etc., et al., ante, p. 717 [262 P. 724], the identical question of law is involved. It follows that upon the authority of the above-entitled case the judgment herein must be and the same is hereby affirmed. Rehearing denied. All the Justice...
Views: 2

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