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All Reporters → cal → Volume 204

Opinions in cal Volume 204

THE COURT. [1] Upon a careful examination of the record herein, we are satisfied that the plaintiff's complaint failed to state a cause of action; that the demurrer thereto was properly sustained, and that the judgment in favor of the defendants thereon was correctly given and made, and that this appeal is without merit. The judgment is affirmed....
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Upon a careful examination of the record herein, we are satisfied that the plaintiff’s complaint failed to state a cause of action; that the demurrer thereto was properly sustained, and that the judgment in favor of the defendants thereon was correctly given and made, and that this appeal is without merit. The judgment is affirmed....
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Upon a careful examination of the record herein, we are satisfied that the plaintiff’s complaint failed to state a cause of action; that the demurrer thereto was properly sustained, and that the judgment in favor of the defendants thereon was correctly given and made, and that this appeal is without merit. The judgment is affirmed....
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plaintiff commenced this action to recover a judgment for damages for personal injuries and *3 for damages to his automobile and for the loss sustained by reason of his deprivation of it in his business, occurring as a result of a collision between the defendant’s and plaintiff’s automobiles at a street intersection in the city of Fresno, alleged to have occurred through the defend...
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On the evening of August 2, 1925, respondent, Frank Cooney, his wife and child and William Aspe and wife, respondent’s stepfather and mother, respectively, and Mr. and Mrs. William Schnorr, father-in-law and mother-in-law, respectively, of respondent, were occupants of a Stephens seven-passenger automobile returning from a trip to Stanislaus County to San Francisco. When near Livermore, Alameda C...
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This case and Cooney v. Pirrelli, S.F. No. 12274, ante, p. 4 [266 P. 273], and Aspe v. Pirrelli, S.F. No. 12274a,post, p. 14 [266 P. 275], are companion cases as to the cause of and the circumstances attending the accident which, it is claimed, resulted in inflicting injuries upon respondent. The facts are fully set out in the first of said cited cases. One or two important propositions of law ari...
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This case, by reason of having been tried with case No. S.F. 12274, was not given a number. For purposes of identification it will be numbered S.F. No. 12274a. William Aspe, respondent herein, was an occupant of the automobile driven by Frank Cooney, on August 2, 1925, which was struck from the rear by a Moon sedan driven by said A.O. Pirrelli. The facts are described in the case of Cooney v.Pirre...
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The plaintiffs commenced this action for damages for the death of their minor son, a boy of a little over twelve years of age, caused by his coming in contact with a high-voltage cable located upon and passing through an electric tower within the limits of the city of Oakland, which cable and tower were being maintained by the defendant for the purpose of the transmission of an electric current of...
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This is an action to enforce a mechanic's lien for a balance claimed for extras due upon the construction of a building. The complaint alleges the furnishing of materials and the performance of labor in connection therewith under a contract for the construction by plaintiffs for defendants of a combined residence and garage. It also alleges the completion of the work, the filing of a notice of com...
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This is an appeal by the defendant from an order denying its motion for change of place of trial. The action was brought in the county of Fresno, state of California, the residence of the plaintiff, to recover for per *22 sonal injuries alleged to have been sustained by reason of the negligence of defendant. The defendant appeared by demurrer and at the same time served and filed an affidavit o...
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This is an appeal from an order made after final judgment discharging a receiver and directing the payment of the balance of moneys in his hands to the defendants. The action was brought to foreclose a mortgage on real property given to secure a promissory note in the sum of $8,750 executed by defendant Mrs. H. Benneyan, in favor of the plaintiffs. The mortgage by its terms also covered the rents,...
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This is an appeal by defendant from a judgment against it in an action to recover for personal injuries alleged to have been caused by the negligence of the agent of the defendant copartnership, in driving an automobile. The driver is also made a defendant. Plaintiff was crossing Green Street, in the city and county of San Francisco, from the north to the south side, about fifty feet east of its i...
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THE COURT. This action was instituted to establish as county charges several claims theretofore rejected either in whole or in part, by the board of supervisors of the defendant county. From the judgment entered upon a directed verdict the defendant appeals. The complaint consists of six separate causes of action, each for personal services alleged to have been performed and expenses incurred duri...
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This record presents but two questions: (1) May the People appeal under the facts here shown? and (2) if they may so appeal, does the information state a public offense over which the court below had jurisdiction? As we have been led to the firm conclusion that both questions must be answered in the affirmative, they will be considered in the order stated. On January 24, 1927, the district attorne...
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Prior to October 20, 1920, the plaintiff was a partner to the extent of a one-eighth interest in the partnership of Otis, McAllister & Co. The other partners, to wit, the defendants Otis and Bee, desired the plaintiff to retire from the partnership, to which the plaintiff consented. To that end the plaintiff entered into an assignment and retirement agreement with the defendants under date of ...
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Petitioner herein seeks by writ of mandate to compel the respondents, Superior Court and the judge thereof, to hear and determine an application filed by her as executrix of the estate of the above-named decedent, for an order authorizing the execution of a deed of trust, which is to serve as security for a promissory note sought to be executed to pay off and discharge a certain note, and mortgage...
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This is an appeal from a judgment in favor of defendants, sustaining their rejection of a claim presented by plaintiff against the estate of Abraham Loane, deceased. The facts as found by the court follow: Upon the death of one John Loane there was distributed to Abraham Loane, for the full term of his natural life, with remainder to his two daughters, Alice A. Salles and Mabelle Donahue, share an...
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Respondent, as a subcontractor, furnished material and performed labor which was utilized in the construction of a portion of the state highway in San Mateo County. The item here in dispute relates to what is known as an "overhaul charge" – a charge of so much per cubic yard for hauling material for "shoulders" or elevated borders along said highway when finished, such hauling being from a place w...
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THE COURT. In this action the respondent's petition for a hearing in this court after decision by the district court of appeal, first appellate district, division one, was granted and the appeal was considered by this court. The case is unique in this jurisdiction and we have given careful attention to the matters urged by respondent for an affirmance of the judgment of the trial court in favor of...
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Appeal from judgment in favor of plaintiff in an action in unlawful detainer. The sole question is whether, under the circumstances shown by the evidence, defendants held possession of plaintiff's property under a month to month tenancy after surrender of lease by operation of law, as found by the court, or whether they held under an assignment of lease by operation of law, as contended by said de...
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Action to quiet title to lot 93 in tract number 909, situated in the city of Los Angeles. The statement *Page 80 of the case, as here quoted, is taken from the decision of the first district court of appeal, division one, rendered prior to the order for hearing in this court, and is adopted as part of this decision. "The complaint alleged title in the plaintiff with right to possession. The averm...
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In the county of Riverside the defendant was charged by information with having intoxicating liquor unlawfully in his possession. He pleaded guilty to conviction of a similar prior offense, and pleaded not guilty to the offense charged in the information. On the trial the jury returned a verdict of guilty as charged. The trial court pronounced judgment that defendant pay a fine of $1,000 or be con...
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On November 30, 1923, Thomas Frazier, while engaged as a miner in the employ of Visalia Masonic Mining Company, operating in Mono County, this state, suffered injuries from a blast unintentionally set off, which resulted in the permanent destruction of the sight of his right eye and a sixty per cent loss of hearing of the right ear. Said Frazier had, about 35 years prior to sustaining the injuries...
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Plaintiffs, as the assignees of one L. J. Brown, brought an action against E. V. Lacey and Veronica E. Lacey on two counts for the recovery of the sum of $2,000. The first count stated a case for money had and *95 received growing out of the same statement of facts specifically pleaded in the second count. 'Said facts are substantially as follows: On June 5, 1924, defendants E. V. Lacey and Ver...
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This is an appeal from a judgment for ,defendants based upon an order sustaining both general and special demurrers to the amended complaint, plaintiff having declined the opportunity offered by the court to amend his pleading a second time. The so-called amended complaint is an anomaly, being in reality but a jumble of conclusions. No one word or phrase would properly characterize or serve to ...
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Defendants appeal from a judgment rendered for plaintiff in an action to recover damages for personal injuries received when an automobile in which she was riding, and which was being driven by her husband, was struck by an automobile operated by defendant E.C. Kellogg. Defendant Chanslor Lyon Company, a corporation, was the owner of the automobile operated by defendant E.C. Kellogg, whom it empl...
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The plaintiff commenced this action for damages for the death of his minor daughter of the age of eight years, who was killed at the intersection of Guerrero and Seventeenth Streets in the city of San Francisco hy being struck by an automobile driven by the defendant De-Mandel while in the act of crossing the street at said intersection, and in so doing in going around a laundry truck owned by 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 111 Defendant and one Eugene Gentile were jointly charged by information with the murder of John J. Driscoll, a police officer of the city and county of San Francisco. A joint trial was had which resulted in a verdict convicting defendant of murder in the fir...
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This proceeding had its inception in an application filed in the superior court, in and for the county of Los Angeles, by one Herbert O. Reed and ten other applicants, among whom was the respondent herein, Frederick S. Shooter, to have their and each of their respective titles to certain lots or parcels of land registered and certified under the provisions of the initiative law adopted by the peop...
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This proceeding had its inception in an application filed in the superior court, in and for the county of Los Angeles, by one Herbert 0. Reed and ten other applicants, among whom was the respondent herein, Frederick S. Shooter, to have their and each of their respective titles to certain lots or parcels of land registered and certified under the provisions of the initiative law adopted by the peop...
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This is an action by plaintiffs, owners of certain lands lying at the mouth of a watercourse situated in Yolo County known as Willow slough, seeking to enjoin defendant Yolo Water Power Company, a corporation, and about 80 other defendants, from unlawfully draining into said watercourse after use for irrigation water theretofore conducted into this watershed from Cache Creek. Appellants have pres...
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This is an appeal by the defendant from a judgment on a verdict in favor of the plaintiff in an action for damages for personal injuries resulting from an automobile accident. On the evening of September 26, 1922, the defendant was driving his six-passenger Haynes automobile from San Jose to San Francisco for the purpose of attending a wrestling match to take place the same evening. With him in th...
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MEISNER v. McINTOSH. Rehearing granted May 31, See final opinion 205 Cal., page 11. This is an appeal by the defendant from a judgment against her for $2,361.56 in an action for damages for fraud. The facts as found by the trial court are: That on the twenty-seventh day of March, 1924, and at the time of the transfer thereof to defendant Margaret McIntosh, plaintiff was the owner and in the posses...
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This appeal is from a judgment in the plaintiff's favor in an action for damages for personal injuries alleged to have been suffered by him while riding upon a certain freight elevator or sidewalk hoist connected with certain premises owned by the defendant Marian Realty Company in the city and county of San Francisco, and within which there has been conducted and operated for the past several yea...
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This appeal is by the plaintiff, alleging himself to be a taxpayer, from a judgment of the superior court, in and for the city and county of San Francisco, refusing to enjoin the board of public works of said municipality from entering into a contract for the construction of *Page 152 certain municipally owned railway lines therein, and also to restrain the auditor from certifying that there are ...
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This is an appeal from a judgment of dismissal upon sustaining defendant’s demurrer to the complaint without leave to amend. The complaint, filed December 17, 1924, alleges that “defendant is a resident of Los Angeles county, California, and that during all the time herein mentioned said defendant was a resident of the state of Colorado and during said time the plaintiff was and still is a resi...
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The issue of law here before us is presented by a petition for writ of mandate, with general demurrer thereto. Petitioner is a property owner in a disputed area which is either in or near the city of Long Beach, county of Los Angeles, state of California. Respondents are the City Council of the said city and the individual members constituting said council. The petition recites proceedings in due ...
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Appeal by plaintiff from a judgment against him entered upon sustaining a demurrer to the first count of his amended complaint. He was given leave to amend the second count of said complaint, but declined to do so and withdrew the claim made thereunder. [1] The action was brought upon the following letter, written by Simon L. Selling to the defendant, his niece, and handed to plaintiff in a sealed...
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In a proceeding in habeas corpus the court below awarded the custody of Agnes Patterson Bruegger, *Page 170 a minor, to her father, the petitioner for the writ. A motion is now made to dismiss the appeal taken by the maternal grandparents, respondents in the court below, upon the ground that there is no right to an appeal in a matter of this character, for which reason, it is contended, the court...
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[1] Respondents have made two motions to dismiss appeals. The appellants, as plaintiffs in the court below, instituted two actions against respondents, as defendants, one in ejectment (No. 182,980), the other to quiet title (No. 191,794). Judgment in each case was entered for the defendants. Motions for new trial were denied, but on motion of the plaintiffs the trial court vacated and set aside th...
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Respondents have made two motions to dismiss appeals. The appellants, as plaintiffs in the court below, instituted two actions against respondents, as defendants, one in ejectment (No. 182,980), the other to quiet title (No. 191,794). Judgment in each case was entered for the defendants. Motions for new trial were denied, but on motion of the plaintiffs the trial court vacated and set aside the ju...
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Respondents have made two motions to dismiss appeals. The appellants, as plaintiffs in the court below, instituted two actions against respondents, as defendants, one in ejectment (No. 182,980), the other to quiet title (No. 191,794). Judgment in each case was entered for the defendants. Motions for new trial were denied, but on motion of the plaintiffs the trial court vacated and set aside the ju...
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Respondents move to dismiss appeals from two original judgments. The actions and the parties are the same as those referred to in the decision dismissing two appeals from the substituted judgments. (Alvarado v. Stanton, L.A. No. 9787,ante, p. 172 [267 P. 313].) [1] Judgment was originally given in each action in favor of the defendants, now the respondents here, and notices of entry of judgment we...
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I dissent. I find myself unable to concur in the order fixing the punishment just made by the court majority. I am of the opinion that in this matter the penalty should be either the maximum provided by law—five hundred dollars fine and five days’ imprisonment in the county jail—or, it should consist of an admonition or, at most, a reprimand. If this unwarranted interference with the due administ...
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This action was brought to recover on a life insurance policy issued by defendant to Emil Lesser, plaintiff's intestate. From a judgment entered on a verdict in plaintiff's favor for the sum of $1,950.40, defendant has appealed. Defendant issued the life insurance policy on February 12, 1894, upon the life of Emil Lesser in the sum of $3,000. Lesser paid the annual premium up to and including the ...
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On further consideration, we are of the view that, notwithstanding the rather persuasive arguments *Page 186 of the petitioner, the decision of the district court of appeal, affirming the action of the respondent Commission denying an award, should stand. Although we might disagree with the Commission as to the weight of the evidence before it, as an appellate tribunal we may not overturn a findi...
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This appeal is from a judgment of dismissal of this action given and made under section 583 of the Code of Civil Procedure for want of prosecution. The action was commenced on August 5, 1921, and was an action for the specific performance of an agreement in writing entered into between the parties on September 6, 1913, by *Page 192 the terms of which the defendant herein agreed to build and const...
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This appeal is from a judgment of the trial court denying a divorce to either of the parties to this action. The plaintiff commenced her action for divorce upon the ground of extreme cruelty, with numerous *194 specifications as to wherein such alleged cruelty consisted. The defendant answered, denying a number of the averments of the plaintiff as to his specific acts of cruelty, and as to the ...
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This appeal is prosecuted by the defendants from an order of the superior court of the county of Stanislaus denying their motion for change of place of trial to San Joaquin County, where at the time of the institution of the action the defendant corporation had its principal office and place of business, and where also the defendant Ross resided. The plaintiffs commenced this action in the coun...
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This is an appeal by the defendant Maryland Casualty Company from a judgment for $5,434 against it upon a surety bond. The appeal is upon the judgment-roll alone and the contentions made are that the complaint does not state a cause of action and the findings do not support the judgment. [1] The facts, as disclosed by the findings, are, briefly: That prior to December 17, 1924, defendant E.L. Smit...
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In this action a hearing was granted by this court after decision by the district court of appeal in order that the case might be considered with another one growing out of a similar controversy in which a decision had been rendered by the district court of appeal and which latter decision was inharmonious with the decision in the instant case. (West Glendale M.E. Church v.McClellan, L.A. No. 8432...
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This is an application for a writ of mandate to compel the respondent, Secretary of State, to disregard and take no further action with reference to certain referendum certificates heretofore filed in his office and to notify the county clerks and registrars of voters throughout the state of the offices of members of the legislature to be nominated at the primary election to be held in August, 192...
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The plaintiff sued the defendants on a promissory note for $1,935.48. Judgment by default was rendered against the defendant Foothill Finance Corporation, as indorser and guarantor, for the full amount of the note, and from this portion of the judgment no appeal has been taken. After trial the court also rendered judgment in favor of the plaintiff and against the defendant Davis for the sum of $19...
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This is an appeal by the defendants from an order denying their motion for a change of the place of trial without prejudice to a renewal of the motion at the time of trial. The motion was made on numerous grounds, two of which need now be considered, to wit: (1) That there is reason to believe that an impartial trial cannot be had in the county of Calaveras wherein said action was commenced, and (...
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This is an appeal from judgment in favor of plaintiff in an action for damages because of failure of defendant buyer to accept full delivery under a written contract between the parties for the sale and purchase of green grapes. Said contract provided that the grapes were to be delivered "f.o.b." a shipping point near plaintiff's vineyard. At the same time the parties also agreed orally, as allege...
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This appeal is from a judgment for defendant in an action for damages for personal injuries. The plaintiff, Joseph T. McMahon, was at the time of the accident about fourteen years of age. On the evening of September 3, 1925, on Mission Street, in San Francisco, he hailed Charles Raleigh, who was at the time passing on a motorcycle, and asked him for a ride. When the two had proceeded for about six...
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A hearing was granted by this court after decision by the district court of appeal in and for the first appellate district, reversing the judgment and directing the trial court to enter judgment in favor of the defendant. Upon a further consideration of the questions involved in this appeal, we are of the opinion that the district court of appeal was correct in its opinion reversing said judgment....
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This is an appeal from a judgment of the superior court of San Joaquin County, sentencing defendant to imprisonment in the state prison at San Quentin, on his plea of guilty when arraigned on an information, the charging part of which is as follows: “The said George Ball is accused by the District Attorney of the County of San Joaquin, State of California, by this information of the crime of ta...
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This appeal is by the plaintiff from a judgment in defendant’s favor upon an order of the court granting a nonsuit at the close of the plaintiff’s case. The *245 action was .one to recover damages for personal injuries sustained by the plaintiff from a fall which occurred as he was about to enter the defendant’s branch bank in the city of Marysville between the hours of 10 and 11 o’clock A. M. ...
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This is an appeal by the defendant Frank Spry from a judgment against him for $571.50 in an action brought to recover money wrongfully converted to the use of defendants. The plaintiff, a copartnership, employed the defendants as manager and clerk, respectively, in its Turlock branch. The complaint charged that the defendants, while so employed, "wrongfully and without the assent of said plaintiff...
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Hearings in this action and the two companion actions ofHaley v. Bloomquist, L.A. No. 9584, post, *Page 252 p. 253 [268 P. 365], and Bloomquist v. Haley, L.A. No. 9585, post, p. 258 [268 P. 364], were granted by this court after decision thereof by the district court of appeal, in and for the second appellate district, second division. The hearings were granted mainly for the reason that we were ...
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THE COURT. As stated by us in the memorandum of opinion in action L.A. No. 10253, Bloomquist v. Haley, ante, p. 251 [268 P. 367], this day filed, we are in full accord with the opinion of the district court of appeal in and for the second appellate district, second division, written by Mr. Justice Craig, in this action, and we adopt the same as the opinion of this court, which said opinion reads a...
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A hearing was granted by this court after decision by the district court of appeal in and for the second appellate district, second division, reversing the judgment in favor of respondents, and directing the entry of the following order: "It is directed that the order of the trial court granting a new trial be vacated, that said court enter a new judgment for the plaintiffs that they have possessi...
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On October 19, 1921, the defendant, Antonio Lagna, entered into a written contract with one J.J. Rue, whereby Rue agreed to erect and build for Lagna four bungalows at Eagle Rock, Los Angeles County, on lots 4, 5, 6, and 7, block 5 of a certain subdivision, for the sum of $2,400 each according to certain plans and specifications, to be paid as follows: $300 when each bungalow is ready for plasteri...
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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 269 This is an original application for a writ of mandate to compel the respondent, as city attorney of the City of Pasadena, to institute condemnation proceedings pursuant to an order of April 28, 1927, of the board of directors of the petitioner, City of Pa...
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THE COURT. This is an appeal by the defendant Wood from a judgment declaring forfeited a lease on the McNeece building in the city of San Diego. By written instrument dated November 1, 1920, the plaintiff leased to the defendant Wood the building in question, which is a business block in said city. On February 17, 1923, Wood subleased the upper four floors to Mrs. Jennie H. Hipwell. Mrs. L.E. Geog...
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This is an action by the People against the defendant to recover the two cent per gallon license or excise tax provided by the Gasoline Tax Act (Stats. 1923, chap. 267, p. 571) upon 2,041,922 gallons of motor vehicle fuel sold by defendant to five different concerns under five different executory contracts of sale made prior to May 14, 1923, the completed sales being made during the first quarter ...
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The state in this action sues defendant for the two-cent tax levied under the provisions of the Gasoline Tax Act of 1923 (Stats. 1923, chap. 267, p. 571), and measures the amount of the claim by the sale during the second quarter of the year 1924 by defendant of 6,945,356 gallons of motor vehicle fuel, the sum demanded being $10,749.10, together with interest and costs. The record is presented upo...
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On the authority of People v. Ventura Refining Co., ante, p. 286 [268 P. 347], the judgment in this case must be affirmed. [1] The contracts here involved are summarized by appellant as follows: "Class A agreements, where the purchaser agrees to purchase and the Richfield Oil Company agrees to sell the entire requirements of the purchaser in his business for a period of one or more years, and dail...
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This is an application for a writ of review. The petitioner, The Golden Gate Ferry Company, alleges that it was and now is engaged in the business of operating a public ferry for which tolls are charged for the transportation of passengers and self-propelled and other vehicles on, over, and across the waters of the San Francisco Bay; that it is the owner and in the possession of a franchise *Page ...
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This is an action in equity for the rescission of a written agreement entered into between the parties for the sale by defendant and purchase by plaintiff of an electric violin piano for the sum of $1,600 and to obtain cancellation and surrender of forty promissory notes of $40 each executed by plaintiff and delivered to defendant to provide payment in monthly installments for said instrument. The...
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Action brought by the administratrix of the estate of Conrad Flach, deceased, under section 377 of the Code of Civil Procedure to recover damages from defendant by reason of the death of said deceased, alleged to have resulted from the negligence of said defendant in the operation of the latter's automobile. The trial was had before the court without a jury and resulted in a judgment in plaintiff'...
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This appeal is prosecuted by certain of the defendants herein from a judgment rendered against them upon the pleadings in an action wherein the plaintiff sought to recover certain sums of money, with interest, claimed to be due her on account of a certain agreement in writing which proved, for reasons hereinafter to be stated, to have been illegal and void. The plaintiff's complaint was in three c...
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This action was one commenced by the plaintiff, purporting to act as the assignee of a number of labor claimants who are alleged to have performed work and labor upon certain real property owned by the defendant Hensen, which consisted in and contributed to *339 the construction, alteration and repair of an oil-well upon the defendant’s property and for which the persons performing the same cla...
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Action to recover the purchase price of a certain used autotruck sold under a written agreement. Defendant by his answer admitted the sale, but by way of defense alleged that he was induced to make the purchase by means of fraudulent representations. Judgment was rendered for defendant and plaintiff appeals. The facts, briefly stated, are as follows: On the fourteenth day of December, 1925, plaint...
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This appeal is from a judgment of the superior court in and for the county of Los Angeles, setting aside and annulling an order of the Board of Medical Examiners of the State of California revoking the license of one Robert W. Renwick, the petitioner and respondent herein, which license entitled him to practice medicine and surgery in this state. The order of said board was made after a hearing be...
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This action is one for the foreclosure of a mechanic's lien upon certain real property in the county of Los Angeles, the plaintiffs and lien claimants therein being copartners doing business under the firm name of Flora Mahedy. In the month of December, 1923, the defendant and appellant, Sarah Holzberg, being the owner of said real estate, rented the same to her co-defendant Robert Hankins upon a...
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Action for damages for death of plaintiff's son from injuries sustained by reason of the negligent operation of an automobile by appellant. On the 14th of September, 1922, Herbert O'Meara, plaintiff's son, then the age of seven years, while running across East 12th Street in the city of Oakland, was struck by an automobile driven by defendant B. Henderson, the agent of the defendant, G.P. Haiden. ...
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This is an appeal in the above-entitled proceedings from an order refusing the motion of one G.M. Harwell to recall and annul a writ of assistance theretofore issued and still outstanding in said proceedings, the same being in foreclosure. Respondent received the sheriff's deed and sought and secured the writ complained of, the command of which is as follows: "Therefore we command you that immedia...
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Action to recover damages as a result of injuries sustained in a collision between plaintiff's motorcycle and defendant's automobile. The plaintiff being a minor, the action was instituted and is being prosecuted by his guardian ad litem. The jury before whom the action was tried rendered a verdict in favor of the plaintiff, and from a judgment entered thereon the defendant has appealed. The first...
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Appeal from judgment for plaintiff in an action to rescind the purchase of ten acres of land upon the ground of fraud and misrepresentation and to recover the purchase price of $1,000 paid therefor. The several contentions made by appellants involve only questions primarily for the trial court, and as, in our opinion, the evidence warrants no conclusion other than that reached by said court and am...
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This is an appeal from a judgment dismissing the action after an order sustaining a demurrer to a second amended complaint without leave to amend. The plaintiff appears in propria persona and he attempts to state a cause of action for damages for illegal restraint and also to recover certain sums which he claims were unlawfully ' expended on his behalf by defendant while acting as the guardian ...
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Appeal from a judgment after the sustaining of demurrers to an amended complaint without leave to amend in an action for damages for malicious prosecution. The plaintiff appears in propria persona and by his complaint he attempts to allege that all the defendants entered into a conspiracy to imprison him in a California state hospital for the insane, such conspiracy being without reasonable or ...
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Action for damages for personal injuries. The complaint alleges, in substance, that on July 13, 1925, plaintiff was riding with her husband in an automobile truck which was being driven in a careful and prudent manner in a northwesterly direction along and upon a public highway in the county of Orange; that when the truck had reached a point directly opposite to the home of plaintiff, her husband ...
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This is an appeal by one defendant from a portion of an interlocutory decree in partition. The contest is really a claim of priority between appellant and respondent Driscoll in and to a portion of the fund arising from a sale of the property for partition. The story opens with the death, intestate and without issue, of Sabina A. Lanon, leaving a considerable estate in Los Angeles County. A contes...
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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 401 Ella McCray died on February 19, 1925, leaving an estate consisting of both real and personal property. A holographic will, executed by her and bearing date August 20, 1924, was admitted to probate upon the petition of the respondent Citizens Trust Savin...
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This is an application by Veronica C. Baird, Benjamin H. Baird, and Thomas R. Baird, who are named as devisees and legatees in the will of David J. Baird, deceased, against the Superior Court of the City and County of San Francisco to restrain further proceedings by one David Jennings Baird, by his guardians, on a petition filed by him on the twenty-eighth day of August, 1926, asking for final dis...
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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 417 [1] Plaintiff, while crossing East 12th Street near its intersection with 22d Avenue, in the city of Oakland, was struck by an automobile driven by the defendant. As a result of the collision she received bodily injuries, and thereafter instituted this ac...
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This is an action, to establish and enforce a trust in a renewal lease of a hotel in favor of a partnership existing between the plaintiff Minnie Mabelle Wing and the defendant. The partnership was formed on May 25, 1921, solely for the purpose of conducting the hotel under said lease. The lease, by its terms, would expire on May 31, 1925. On March 1, 1925, the defendant procured in her own name ...
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This is an appeal from a judgment for the plaintiff in an action wherein the plaintiff sought to cancel certain agreements to purchase real property and to recover partial payments on the purchase price made thereunder. On January 18, 1924, the plaintiff entered into two agreements in writing with the defendant T. J. Lawrence Company, whereby the latter agreed to reserve for the plaintiff, at a...
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This is a proceeding to review an award of the Industrial Accident Commission in favor of Mrs. Minnie Jaynes, the mother of John Jaynes, who met his death while in the employ of the Page Modern Garage. The petitioner was the insurance carrier of the employer. The award was based upon the finding of the Commission that said John Jaynes left surviving him his mother, who was wholly dependent *Page 4...
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The petitioner for a writ of review herein was at the time of the injuries for which he sought an award an employee of the respondent San Francisco Bridge Company of which its co-respondent, Federal Mutual Liability Insurance Company, was at said time the insurance carrier. The petitioner's injuries were caused by his being struck by a plank on the head while in the course of his employment and on...
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This is an action to recover upon a promissory note and to foreclose the mortgage securing it, default having been made in the payment of both principal and interest. The terms of the note, so far as here material, are as follows: ". . . I promise to pay . . . three thousand . . . dollars with interest from date until paid, at the rate of twelve per cent per annum; payable quarterly. *Page 440 Sh...
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The plaintiff is the daughter and the defendant is the sister of Charles A. Parkinson, who died testate on April 7, 1921, in the county of Los Angeles. The will of the decedent, bearing date March 18, 1921, was admitted to probate on the ninth day of the following May. The decedent left as heirs at law his widow, who resided in Michigan, two sons and the plaintiff. The will acknowledged the marita...
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This action was instituted by the plaintiff to recover damages from the two corporations, defendants, for personal injuries sustained by him on August 13, 1924, as a result of a collision between a truck of the defendant San Diego Consolidated Gas & Electric Company, of which corporation plaintiff was an employee, and upon which truck he was riding, and a street-car operated by and on behalf of...
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The action in which this appeal is prosecuted was instituted for the purpose of quieting title in the plaintiff to the real property described in the complaint. The plaintiff purchased the property at a constable's sale held in December, 1922, pursuant to execution issued in January, 1922, to satisfy a judgment theretofore and in December, 1921, rendered against the defendant Harry F. Ulrich. The ...
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This is an appeal from a judgment of dismissal after order made sustaining, without leave to amend, a demurrer to the second amended complaint. The plaintiffs are the sons and sole heirs of Elisa Jacob, deceased. By their complaint they sought the entry of a decree impressing a trust upon certain described real property, situate in Trinity County, title to which appeared in the names of Henry and ...
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This appeal is taken from a judgment entered against appellant after an order made sustaining a demurrer to appellant's complaint without leave to amend. [1] The facts herein considered are taken from the complaint, it being the only record by which the question of the sufficiency of the facts as stating a cause of action may be judged. The plaintiff and appellant herein asserts the right to maint...
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Respondents move to dismiss the appeal. The judgment appealed from was entered on October 19, 1927, in a proceeding brought under section 1664 of the Code of Civil Procedure to determine heirship. A motion for new trial interposed by the defendants was denied December 16, 1927, and on December 24th the defendants filed their notice of appeal, together with a notice and request to the clerk for the...
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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 472 [EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 473 The defendant was charged with having kidnaped and murdered Marion Parker, a twelve year old Los Angeles schoo...
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[1] Action for damages for breach of promise to marry. Trial was had by jury which resulted in a verdict in favor of plaintiff in the sum of five thousand dollars. Motion for new trial was made and denied. This appeal is prosecuted from the judgment and order. It is claimed as ground for reversal that the evidence shows the alleged promise to be void because of the fact that plaintiff knew at the ...
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Plaintiffs had judgment in the court below against defendant P. IT. Weibel for the sum of $1,900, which sum the court found to be the value of certain poultry and poultry-raising equipment destroyed by a fire found by the court to have been negligently permitted to *489 escape by said defendant Weibel from premises owned and occupied by him and his wife, Mary Weibel, to the adjoining property o...
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This action against the defendant, the City of Sacramento, was filed in the county of Yolo. Said defendant appeared therein and moved the court for a change of the place of trial of said action upon the ground that the plaintiff was either a resident of or was doing business in said county of Yolo. The motion was granted and an order made changing the place of trial of said action from said county...
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[1] Plaintiff instituted this action against the defendant to quiet his title to seven lots in the city of Tulare. Plaintiff held a tax title to said lots and employed intervener, who is an attorney at law, to act as his attorney in the prosecution of this action under a written agreement that "Middlecoff will render the necessary legal services to determine the title to said lands, and in cases w...
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Appeal by plaintiff from judgment in favor of defendants. The complaint was in the usual form of a quiet title suit, but upon the filing of answer and cross-complaint by defendants it was amended to declare a trust in real property, and under such pleadings, upon request of the parties, the question of title to the property was tried. The appeal is utterly without merit and the various contenti...
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This suit was commenced by C.W. Dorris. He subsequently died, and defendant's appeal is therefore *Page 505 prosecuted against his executor. The action is one to recover upon a creditor's claim filed against the estate of Henry D. Meyer, deceased, based upon an alleged promissory note dated November 26, 1923, executed by decedent to said C.W. Dorris, payable six months after date, in the principa...
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This appeal is from a judgment in favor of the defendants after a directed verdict given and made by order of the court on motion of the defendants at the close of the trial. The action was one to recover damages for injuries sustained by plaintiff while walking upon a wooden driveway superimposed upon the sidewalk in front of the property owned by the defendant Mary J. Claasen, and at the time of...
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We are satisfied with the conclusion of the learned district court of appeal in this cause and adopt a part of its opinion herein: "This is an action in damages for deceit. Judgment was entered against defendant for $3,958.33 and costs on the verdict of a jury. Defendant moved for a new trial, his motion was granted and plaintiff appealed. "In his second amended complaint plaintiff alleged that he...
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This, the third appeal in the above-entitled cause, is from an order made on July 10, 1925, on motion of plaintiff, appointing a receiver pendente lite. The order confers power upon the receiver to collect what is termed "mesne profits," which is therein interpreted to mean a conferring of power upon said receiver to substitute himself for the defendant and secure and keep, pending further order o...
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This action was brought to recover damages growing out of the sale on March 24, 1922, by defendant to plaintiff of a used 80-horsepower return tubular boiler. The complaint, as finally amended, in substance alleged that prior to March 10, 1922, plaintiff informed defendant that he was about to enter into a contract with a customer, viz., Leal Sons Lumber Company, for the sale to said company of o...
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In 1921 and 1922 the plaintiff was the lessee and in possession of 120 acres of land in Reclamation District No. 1000. In the latter part of the year 1921 he seeded the land with barley. On the ninth day of February, 1922, the crop was about two inches high. On that day a heavy rainstorm started and continued for three or four days. On February 12th one of the drainage ditches of the district loca...
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The appeal is by defendant, as seller, from a judgment for plaintiff, as a buyer, for seven hundred dollars, the amount paid on the purchase price, in an action to rescind the purchase under formal written contract dated May 6, 1923, of a second-hand Packard automobile. As finally amended, count one of the complaint is denominated a cause of action to rescind for fraudulent misrepresentations touc...
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This is an appeal from a judgment of dismissal following the sustaining of a demurrer to the complaint without leave to amend. The complaint is one for damages for loss of a crop of rice resulting from the defendant's alleged refusal to deliver irrigation water to the rice lands of the plaintiff. Briefly and in substance it is alleged that the defendant is organized and existing under the Californ...
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This is the second appeal in this action. Our decision of the first appeal will be found reported in 199 Cal. 318 [249 P. 197], where the facts of the case are fully stated, and for that reason it will not be necessary to repeat them here. At the first trial of this action judgment was rendered in favor of plaintiff, which judgment was reversed by this court. On the going down of the remittitur th...
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A rehearing of this case was granted for the reason that this court desired to consider, before the final determination of this appeal and in connection with it, the case of Stewart v.Stewart, then pending on its second appeal to this court, and in which many of the same questions were involved as are presented by the appeal in the *Page 559 present proceeding. The decision of this court on the s...
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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 572 THE COURT. This action to quiet title and to set aside a trustees' sale and deed covering certain real property was instituted in March, 1924, approximately five years subsequent to such sale. The trial court found all material issues in favor of the defe...
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THE COURT. The petition for a hearing in this court after decision by the district court of appeal, second appellate district, division two, was granted. Further consideration of the record and of the points involved has persuaded us of the correctness of the conclusions expressed by the district court of appeal. We therefore adopt the opinion of the district court of appeal, of which Mr. Justice ...
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This is an appeal from an order dismissing, for want of prosecution, an action to enforce a mechanic's lien. *Page 596 The defendant Woulfe is the owner in fee of certain lots in the Vista Del Mar Tract, in the county of Orange. On June 1, 1921, he entered into an oil and gas lease with the defendant Robert M. Pease. By assignment this lease came into the hands of the defendant Malis Aldahl Syndi...
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This is an appeal from a judgment of conviction and from an order denying a motion for a new trial. In January, 1927, the defendant was indicted on twelve counts, four for grand larceny, four for obtaining property by false pretenses and four for embezzlement. Four transactions only were involved, each one of the four being pleaded three ways and charging a different offense. The trial court susta...
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Action in equity to establish the provisions of a joint and mutual will made by husband and wife. The case was before this court upon a former appeal taken from a decree of distribution in the matter of the estate of John Rolls, deceased. Two questions were there involved – one as to whether the assets of the estate were separate or community property, the other concerned the revocability of the j...
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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 611 This is an appeal by the defendants from an order granting the plaintiff's motion for a new trial. The motion was made on the usual statutory grounds and was based on affidavits purporting to set forth newly discovered evidence. The order did not specify ...
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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 620 The plaintiff herein appeals from a judgment rendered and entered after a directed verdict in the defendant's favor. The action is one for the recovery of both general and special damages for the breach of the *Page 621 implied covenant of quiet enjoymen...
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This is an appeal by the plaintiff from a judgment against him in an action in which he sought damages for breach of an alleged implied warranty of title and of quiet enjoyment, made by his lessors, the defendants herein. Plaintiff leased from defendants a certain piece of real property, for a term of ten years, at a stated consideration of $25 per month for the first seven years of the term and $...
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Suit to enjoin and to restrain defendant corporation from disposing of certain shares of stock in a water system and the water and water rights represented thereby. *Page 648 [1] The complaint is somewhat voluminous. The facts show that in 1902 defendant, Empire Water Company, hereinafter designated as the Water Company, acquired certain water rights and a system of irrigation and diverted from ...
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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 655 This is a proceeding wherein the City of Pasadena, a municipal corporation, applies for a writ of mandate directed to the respondent, as the city clerk of said City, requiring her, in her official capacity, to certify to the passage and content of a certa...
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THE COURT. [1] Petitioners filed an application for a writ of mandate to compel the respondent to settle a proposed bill of exceptions preparatory to an appeal from a judgment against sureties on an appeal bond entered on motion after the affirmance of the judgment appealed from. (Code Civ. Proc., sec. 942.) From the facts alleged in the petition for the writ it appears that, on timely motion, the...
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Petitioners filed an application for a writ of mandate to compel the respondent to settle a proposed bill of exceptions preparatory to an appeal from a judgment against sureties on an appeal bond entered on motion after the affirmance of the judgment appealed from. (Code Civ. Proc., sec. 942.) From the facts alleged in the petition for the writ it appears that, on timely motion, the appeal of the ...
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Petitioners filed an application for a writ of mandate to compel the respondent to settle a proposed bill of exceptions preparatory to an appeal from a judgment against sureties on an appeal bond entered on motion after the affirmance of the judgment appealed from. (Code Civ. Proc., sec. 942.) From the facts alleged in the petition for the writ it appears that, on timely motion, the appeal of the ...
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Certiorari to review an award of the Industrial Accident Commission in favor of Ida M. Dracket and against Fred S. Moody. Briefly, the facts are that petitioner, Fred S. Moody, while suffering from an infection, which caused a high fever and delirium, was ordered sent to the hospital by his physician, who requested the hospital to assign petitioner a room, to prepare the operating room, and to cal...
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On April 30, 1925, under the trade name of Aristocrat Distributing Company, one J.B. Vallen entered into a contract in writing with Chas. A. Merritt and Chas. A. Parlier, a copartnership, doing business under the *Page 674 name of Merritt and Parlier, with reference to the sale and delivery by the former to the latter of a certain number of dishwashing machines. The contract need not here be set ...
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Motion to dismiss appeal for alleged failure to file, within the time required by Penal Code, section 1247, statement of grounds of appeal. *Page 679 [1] Judgment was imposed on defendant on November 16, 1927. On November 21, 1927, the court gave and made an order directing the preparation of clerk's and reporter's transcripts, which recited therein that the required statement above referred to ...
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Action by plaintiffs to recover damages for the death of their minor son, Dan Marchetti. The defendants Duree and Adair were the engineer and fireman, respectively, in charge of the train of the defendant the Southern Pacific Company at the time of the collision which resulted in the death of plaintiffs' son. The deceased at the time of his death was eighteen years of age, and was then and for som...
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Action against the City of Sacramento and its officers by a property owner of said City to enjoin the enforcement of a zoning ordinance enacted by the city council of said City. A general demurrer to plaintiff's complaint was sustained by the trial court, and upon her refusal to amend said complaint the court entered its judgment in favor of defendants. From this judgment plaintiff has appealed. T...
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MEMORANDUM CASES. THE COURT. [1] The appeal in this action involves the same matters discussed and decided in the case of Citti v. Bava, ante, p. 136 [266 P. 954], and is presented on the same briefs. On the authority of that case the judgment herein is reversed....
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This is an appeal from a judgment for defendants entered after a demurrer to the complaint had been sustained without leave to amend. Plaintiff sought a writ of mandate directed to the supervisors, auditor and tax collector of Los Angeles County, to compel the cancellation of a tax assessment for the year 1923, against property alleged to be used exclusively for religious worship by plaintiff and ...
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The appeal in this action involves the same matters discussed and decided in the case of Citti v. Bava, ante, p. 136 [266 Pac. 954], and is presented on the same briefs. On the authority of that case the judgment herein is reversed....
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The appeal in this action involves the same matters discussed and decided in the case of Citti v. Bava, ante, p. 136 [266 Pac. 954], and is presented on the same briefs. On the authority of that case the judgment herein is reversed....
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[1] Upon the authority of People v. Ventura Refining Co.,ante, p. 286 [268 P. 347], and People v. Richfield Oil Co.,ante, p. 301 [268 P. 353], the judgment in this cause must be affirmed. The contracts here are identical with the contracts considered in the case last above cited. The only reason for separate appeals in the two cases was that in one of them the question arose as to when the appella...
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THE COURT. [1] The appellant's petition for a hearing in this court after decision by the district court of appeal for the first appellate district, division one, was granted chiefly for the reason that one of the main questions presented upon this appeal was under submission before this court in the case of People v.Scofield, 203 Cal. 703 [265 P. 914]. The judgment and order in that case were rev...
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THE COURT. [1] The order granting defendant's motion for a change of venue in this action is affirmed on the authority of Finance Construction Co. of California v. City of Sacramento, ante, p. 491 [269 P. 167]. The only difference in the two cases is that in this case the plaintiff is a private person, while in case No. 3996 the plaintiff is a corporation. This difference is not material to any qu...
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