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All Reporters → cal → Volume 220

Opinions in cal Volume 220

This is an appeal from an order directing defendant to pay to respondent certain sums for temporary alimony, attorneys' fees and costs in a divorce action. On September 8, 1932, Ludwig Kadello received a decree of divorce from Alma Kadello in Reno, Nevada, upon the ground of desertion, the defendant being served personally in California. On October 7, 1932, Alma Kadello commenced a divorce action ...
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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 5 [EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 6 [EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ...
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By this appeal the controller of this state seeks to reverse an order of the superior court in the above-entitled estate. The order complained of reversed in toto a previous order fixing and requiring the payment of an inheritance tax under the Inheritance Tax Act of California (Deering's Gen. Laws, 1931, vol. 3, p. 4709, Act 8443), and further provided for refund of the tax theretofore paid. The ...
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This is an action to recover money paid under a contract after its rescission. Plaintiff on February 11, 1916, contracted to purchase from the predecessor of defendant company, two lots in a subdivision in Martinez, for $1,000, payable in installments. Plaintiff lived some distance away and had never seen the lots. The contract provided that during the life of the agreement the vendor should pay 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 36 This is a proceeding in certiorari to review certain orders of the Superior Court of Santa Clara County entered in a proceeding brought by A.A. Trippel to obtain custody of his two minor children, a boy and girl, aged respectively twelve and ten years, iss...
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THE COURT. On and prior to December 7, 1929, Kirk H. Prindle was a licensed physician and surgeon of this state, practicing his profession in San Mateo County, and having an association with the Church of St. Matthew Mills Memorial Hospital and also with Dr. Chidester, medical superintendent and director of said hospital, which institution will hereafter be referred to as the hospital. Ann H. MacK...
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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 59 THE COURT. Appeal from a judgment for the plaintiff in an action to recover damages for personal injuries sustained in a collision between two automobiles. The plaintiff was riding as a guest in the rear seat of an automobile driven by her brother, the def...
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It appears that petitioner procured a final decree of divorce from her husband, Marshall Hilmer, on August 10, 1932. The custody of the minor child of the parties was awarded to her, and the father of the child was directed to pay $50 a month for the child's support. Contempt proceedings have been necessary from time to time to compel payment of this award. In March, 1933, petitioner moved the res...
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Action to recover damages for personal injuries received by plaintiff on June 11, 1929, about 11:40 P.M., as the result of a collision between the automobile in which she was riding as guest of defendant Pinney, and a city sprinkling truck driven by defendant Rivera. Defendant Rivera was driving the truck easterly on Seventh Street, Los Angeles. Defendant Pinney was driving westerly on said street...
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This litigation revolves around a contract, between the parties, in the following words: "This agreement, made and entered into this 22nd day of March, 1927, by and between R. Lewis of the City of Madera, County of Madera, State of California, and Shell Company of California, a California Corporation. "That for the term, at the rental and upon the conditions, covenants and agreements hereinafter e...
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THE COURT. The question presented by this appeal is whether or not the trial court should have denied a motion to modify a previous order for alimony and support of a minor child in a divorce case. Certain accrued allowances for such purpose were not paid, and the court below further found that the only income of defendant was his monthly salary, which was less than the amount of the monthly allow...
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The actions entitled as above were commenced by the owners of different parcels of land in Reclamation District No. 784 to enjoin the defendant as Treasurer of the County of Yuba and as trustee of the Bond Fund of the Reclamation District from selling the property and issuing deeds by himself, as trustee, to purchasers after default by the plaintiffs in the payment of installments of assessment on...
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This is an action for damages for the wrongful death of plaintiff's adult son, resulting from a collision between decedent's motorcycle and the rear end of a wagon loaded with farm implements, being driven by the defendant Angels along a public highway in Merced County. The defendant bank held a chattel mortgage on the wagon *Page 94 and its contents. It was plaintiff's theory, in joining the ban...
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After a re-examination of the authorities applicable to the legal issues involved in this cause, we find ourselves in accord with the opinion of the District Court of Appeal handed down by said court when this action was pending therein. The question concerning which we were in doubt when we granted a hearing herein was whether the appellate court had properly applied the doctrine of proximate cau...
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This action was brought to foreclose a mechanic's lien upon the ranch of defendant Stewart, arising out of the construction by plaintiff of a rice elevator and, in connection therewith, of making additions to his barn. The contest is actually between plaintiff and the appellant bank, a subsequent encumbrancee of the ranch. The case was here on a former appeal from that part of the judgment only wh...
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An award was made by the Industrial Accident Commission in favor of William H. Palms and against his employer, the Atascadero Mill & Lumber Company, and against the petitioner herein, the Employers’ Liability Assurance Corporation, and the Indemnity Insurance Company of North America, as insurance carriers of said employer. The Indemnity Insurance Company had issued to the employer a policy of ...
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By this proceeding petitioners seek to prohibit the respondent court from proceeding to the trial of an action pending therein entitled Bank of America National Trust Savings Assn. v.Reidy et al. Petitioners contend that the issues involved in said action already have been *Page 112 tried and determined in a prior action between the same persons who are parties to the second action. In other wor...
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This is a petition for review of the second order of the respondent Industrial Accident Commission denying the application of the petitioner, Fannette Winthrop, for compensation. The claim for compensation grew out of an operation by which an ovarian cyst or tumor was removed from the abdominal cavity of the petitioner. The tumor had become strangulated by its pedicle or stem having become twisted...
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This is the second review in this matter. A petition for a review of the respondent commission's first order was granted by the District Court of Appeal. The order of the commission denying any compensation to the widow and dependents of the deceased employee was annulled by that court and the application was remanded for further proceedings and findings. (Nielsen v.Industrial Acc. Com., 125 Cal.A...
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THE COURT. This is a proceeding to review an order of the respondent commission denying compensation to the petitioner. In January, 1932, the petitioner applied to the bureau of county welfare of the county of Los Angeles for assistance. After due investigation he was found to be a resident of the county and entitled to the relief sought. His requirements were fixed at $41.60 per month. From that ...
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The original plaintiff died during the pendency of this appeal. His executor has been substituted in his place. All references herein to the plaintiff or appellant are intended to relate to the original plaintiff. Plaintiff brought this action to quiet his title to certain real property situated in the city of Stockton. Defendants answered, and the defendant M.M. McFarland set forth in his answer ...
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Plaintiff appeals from an interlocutory decree of divorce, from an order denying her counsel fees and costs on appeal and support money pending appeal, and from an order denying her motion for a new trial. [1] The latter order is nonappealable and the purported appeal therefrom must therefore be dismissed. The remaining two appeals will be considered presently. The action was instituted by appella...
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This is an appeal from a judgment for the plaintiff in an action to foreclose a mechanic's lien. The claim grew out of the construction of the Covell Hotel in Modesto. The plaintiff was employed by the general contractor to furnish the labor and materials to complete the mason work on the structure. The building was completed and accepted. No question is raised as to the due filing of the claim of...
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Petition for review and annulment of the order of the respondent commission which denied any compensation to the petitioner. *Page 144 The petitioner claims compensation as a dependent widow of Glenn MacArthur, who met his death on April 1, 1932, at Wilmington, California, from injuries sustained while he was employed as a loftman by the respondent Raymond Concrete Pile Company. The respondent Em...
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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 154 THE COURT. Plaintiff is a corporation organized under the laws of this state. It is the owner of the Clearing House Mine situated in Mariposa County some considerable distance from the city of Merced, where the principal place of business of the company i...
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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 168 Defendant appeals from a judgment of conviction carrying the extreme penalty and from orders respectively denying motions for new trial and in arrest of judgment. We have exhaustively examined the record in this case and unhesitatingly declare that the ev...
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The defendants herein, Z.R. Sistrunk and his wife, Cora Sistrunk, have appealed from a judgment decreeing that the agreement, whereby the plaintiff had agreed to sell to the defendants the lands described in the complaint, be canceled; that plaintiff be restored to the full possession thereof and the defendants be ejected and enjoined from asserting or claiming any right, title or interest therein...
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Action for an accounting upon sale of land by a surviving trustee pursuant to the provisions of a deed of trust. Plaintiff alleged that the money received by defendant trustee at the time of sale was $15,000 in excess of the sum required to discharge the indebtedness under the trust deed, together with advancements and expenses, including costs of sale. Defendant answered, alleging that he sold t...
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In this action the trial court, sitting without a jury, found that the injury for which plaintiff sought to recover damages was proximately caused by her negligence and failure to exercise ordinary care for her own safety. Plaintiff struck her head with great violence against a projecting rafter of defendant's garage, which rafter she failed to observe, and thereby sustained injuries to her neck a...
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This appeal involves the ownership of property not exceeding in value the sum of $150. *194 •Sam Gordon was the owner of a lot in the city of Napa upon which a one-story trade building was erected. Jack Fortney was a month-to-month tenant. During his occupancy for a period of something like a year, he covered the front area of the store with linoleum, amounting to fifty-two square yards, whic...
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THE COURT. This action was commenced by plaintiff for declaratory relief involving its asserted rights under a contract with defendant and, as incidental to that relief, for a money judgment in the sum of $15,664.50. Judgment was rendered in plaintiff's favor and the defendant prosecutes this appeal therefrom. On February 21, 1924, the parties to this litigation entered into a contract whereby 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 205 THE COURT. Plaintiff brings this action for personal injuries alleged to have been suffered by him while working for the Pacific Gas Electric Company as the proximate result of the negligence of the defendant Dean Wilson, who at the time of the accident ...
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THE COURT. A hearing was granted in this case, after decision by the District Court of Appeal, Second Appellate District, Division Two, in order to give full consideration to the contention of appellant Dulin that the verdict as to him was contrary to the evidence. Upon a careful examination of the whole record, we have reached the conclusion that the evidence was sufficient to sustain the verdict...
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This is an action by the father of a minor to recover for the wrongful death of said minor. The deceased, a child nine years of age, was a guest in an automobile driven by defendant, his uncle. The accident occurred on May 17, 1931. At that time section 141 3/4 of the California Vehicle Act provided that an action based upon injuries or death of a guest in a motor vehicle could be maintained upon ...
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THE COURT. This is an action to enjoin an execution sale. H.M. Kurtz made a promissory note to plaintiffs and appellants for $1700, and to secure payment executed on May 18, 1932, a chattel mortgage on certain automobiles, among them the Buick sedan involved in this action. The mortgage was recorded in Yolo County, where the property was situated, on May 27, 1932. On May 28, 1932, a certified copy...
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THE COURT. Plaintiffs bring this action on behalf of Eureka Fishermen's Union, an unincorporated association of commercial fishermen comprising about 150 members, against respondents as members and deputies of the California Fish and Game Commission, to restrain them from enforcing the provisions of Penal Code section 634, as amended in 1931. The lower court gave judgment for defendant. The facts ...
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THE COURT. A hearing was granted in this case after decision by the District Court of Appeal, First Appellate District, Division Two. Upon further consideration, we are satisfied that the opinion of Mr. Justice pro tem. Dooling properly disposes of the issue, and we therefore adopt said opinion as the opinion of this court. It reads as follows: "The petitioner seeks by certiorari to have annulled ...
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THE COURT. We hereby adopt the following portions of our former opinion as a statement of the facts and issues presented in this case: "This appeal is from a judgment in favor of plaintiffs declaring that a contract employing the defendant Edwin P. Stoll was terminated by the incompetency of his father and employer, John T. Stoll, and restraining the defendant Edwin P. Stoll from interfering with ...
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Respondent, plaintiff below, to secure the fruits of a rescission in pais on a contract to purchase shares of stock of the appellant corporation, sued the said corporation and its stock sales manager, J.G. Tavares, for the sum of $6,000, representing the value of securities exchanged by respondent for said stock, which transaction was alleged to have been induced by fraudulent representations. 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 273 Reclamation District No. 730, one of the defendants in these consolidated cases, was organized in 1902 under the provisions of the Political Code applicable to the formation of reclamation districts. In 1907, an assessment (the first) was levied under a p...
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The plaintiff, a co-operative marketing corporation, organized under the laws of California for the purpose of securing the benefits of the Federal Agricultural Marketing Act, caused to be grouped together in the year 1930, a large percentage of the grape acreage of California, by securing the signatures of the owners of such acreage to a uniform marketing agreement constituting it their selling a...
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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 284 This is an appeal by the defendants, upon the judgment-roll and a bill of exceptions, from the final judgment in favor of the plaintiff, in an action at law to recover a deficiency judgment in the sum of $28,474.83, claimed to be the balance due the plain...
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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 297 THE COURT. A rehearing was granted in this case to give further consideration to two points discussed in our former opinion. The first point has to do with the proper interpretation of the case of Joerger v. Mt. Shasta Power Corp., 214 Cal. 630 [7 P.2d 70...
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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 316 The county of San Mateo, acting under the authority of section 7 1/2 of article XI of the Constitution of this state, framed a charter for its own government, which was approved by the legislature at its session in 1933. By this charter the office of coun...
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J.E. Oliver, the surviving husband of Harriet A. Oliver, deceased, brought this action to partition *Page 329 certain real property in San Joaquin County owned in part by the deceased wife in her lifetime. An interlocutory decree was entered which determined the right of the respective parties and ordered partition as follows: One-fourth interest to J.E. Oliver; one-fourth interest to Charles Elm...
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THE COURT. Defendants Gouverneur Morris and Ruth J. Wightman Morris, his wife, appeal from a judgment decreeing foreclosure of mechanics' and materialmen's lien on property in the city of Monterey, this state, record title to which stands in the name of Mrs. Morris. By said judgment the court decreed that defendants were indebted to plaintiffs S.H. Hooke and W.E. Hooke, building contractors, in 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 342 The petitioner, as state director of finance, seeks a writ of mandate to compel the respondent state controller to audit and approve six demands transferring certain amounts from the emergency fund to the funds of the departments in whose favor the demand...
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This is an appeal from a judgment based upon an order striking out the answer of the appellant on *Page 363 the ground that the same was sham and irrelevant and granting plaintiff's motion for judgment on the pleadings. The action was to foreclose a mortgage given to secure a promissory note executed by the appellant, the Fraternal Finance Company, in the sum of $100,000, no part of which has bee...
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Motion to dismiss the appeal or affirm the judgment (the third directed to the same point), made by respondents, on the ground that the appellants have not met the requirements of section 953c of the Code of Civil Procedure, which requires the parties to an appeal to “print in their briefs, or in a supplement thereto, such portions of the record as they desire to call to the attention of-the cour...
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[1] The legal question presented by this appeal is: May a municipality, which is the owner in fee of land acquired without restrictions, and set aside for park purposes, devote a portion of the land to public use as a street? Certain findings of the trial court, relating to an opposition to such action by taxpayers and abutting property owners affected by the proposed change of use, have no bearin...
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THE COURT. This is a motion to dismiss an appeal from an order nonsuiting the appellants in a contest of will before probate. The proponents of the will contend that the order is nonappealable in that it is not designated in section 1240 of the Probate Code as one of the probate orders from which an appeal will lie. In opposition thereto the contestants urge that a will contest is "primarily in th...
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Defendant appeals from a money judgment entered in favor of plaintiff. The cause went to trial on an agreed statement of facts which may be summarized as follows: At all times material to this action Gordon L. Eby and Lewis H. Homer were attorneys-in-fact for the Indemnity Insurance Company of North America, which for brevity we will refer to as the Indemnity Company, and each was authorized to ex...
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Defendant appeals from a money judgment entered in favor of plaintiff. The cause went to trial on an agreed statement of facts which may be summarized as follows: At all times material to this action Gordon L. Eby and "Lewis H. Homer were attorneys-in-fact for the Indemnity Insurance Company of North America, which for brevity we will refer to as the Indemnity Company, and each was authorized to e...
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The determination of this appeal rests upon our consideration of the main issue presented, to wit: Whether covenants in restraint of trade, contained in the contract which forms the basis of this action, render said contract illegal and void, in whole or in part, under sections 1673, 1674 and 1675 of the Civil Code. Section 1673, supra, declares that "Every contract by which anyone is restrained f...
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This is an appeal by the defendants from a judgment foreclosing a mortgage on real property. It is first urged that the trial court erred in denying defendants’ motion for a continuance of the trial. This motion was supported by an affidavit of defendants’ counsel to the effect that the principal office of the defendant corporation was in the city of Newark, New Jersey, and that the president o...
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The defendant was prosecuted for the murder of his wife, Sally Shorten. From a judgment imposing the death penalty and from an order denying his motion for a new trial the defendant appeals. The defendant and his wife, the deceased, with two children, formerly resided at Port Arthur, Texas. The wife with the children removed to Los Angeles in August, 1931. The defendant followed them in December o...
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THE COURT. After a further consideration of the questions involved in this proceeding, we find ourselves in accord with the conclusions reached by the District Court of Appeal in its opinion rendered therein and written by Mr. Presiding Justice Conrey. We have therefore incorporated the major portion of said opinion in our opinion, indicating the same by quotation marks, and have followed it with ...
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Appeal from an order denying a motion to vacate an interlocutory decree of divorce. The appellant commenced an action against the respondent for divorce. She alleged in her complaint that there was certain community property, both real and personal. The respondent filed an answer and a cross-complaint in the divorce action, and also instituted an action against the appellant for partition of the r...
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Cross-appeals from a judgment for the plaintiff in an action for damages for breach of contract. On April 1, 1930, the parties entered into a written agreement for the sale and delivery by the plaintiff to the defendant of approximately eighty gallons of milk daily f.o.b. Fresno. The defendant agreed to pay for butter fat content of the milk at eighty-five cents per pound for all milk less two cen...
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THE COURT. This is an original proceeding in mandamus to compel the respondent Superior Court to entertain jurisdiction and to proceed with the hearing of a petition for removal of the respondent Lowell L. Middlecoff as trustee, and to settle his account. In 1909 and 1910 judgments in two partition proceedings were entered in the Superior Court in and for the County of Los Angeles, wherein W.W. Mi...
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This is an appeal from judgment of non-suit entered pursuant to motion of defendants at the close of plaintiff’s ease. Plaintiff asked an accounting of moneys received by defendants from the distribution and sale of motion picture films in which the plaintiff corporation claimed an interest by reason of the assignment to it of the beneficial rights of one of the parties, and the asserted ratifica...
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Petitioners, the Southern California Edison Company, Ltd., a corporation, and the San Joaquin Eastern Railroad Company, a corporation, filed herein their petition asking for an alternative writ of mandate requiring respondent, the State Board of Equalization, to grant certain credit on future payment of taxes to become due from petitioners, and to issue the certificate to the State Board of Contr...
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Action to quiet title to a 40-acre tract of land in Glenn County, upon which a pumping plant and well are situated. In 1908, the plaintiff Moniz and one Pimental, predecessor in interest of defendant Peterman, and one Fulton, as partners in a dairy business in Glenn County, purchased a tract of land consisting of 130 acres from David Hughes, situated in the north half of section 3, township 19 nor...
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The record shows an action by plaintiffs Swarzwald and a cross-action by defendant Cooley, both in form to quiet title and to locate the oceanward extremity of a common boundary line. The bank and the other defendants are only nominally interested in the result of this litigation, the former being the trustee and the latter beneficiaries under a real estate subdivision trust, of which the lands in...
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Defendants appeal on the judgment-roll from a judgment entered in favor of the plaintiff. The action was instituted to recover money damages for injuries incurred as the result of a collision between plaintiff's bicycle and an automobile operated by the defendant Henry W. Hand with the knowledge and consent of the defendant-owner, Dora B. Hand, his wife. It is not contended that the car at the tim...
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THE COURT. A hearing was granted in this case after decision by the District Court of Appeal, Second Appellate District, Division Two. We hereby adopt the following statement of facts and review of the evidence by Mr. Justice pro tem. Archbald as part of the opinion of this court: "Appeal by defendants from a judgment against them for one-half of certain commissions and profits earned by them in e...
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THE COURT. Appeal from a judgment entered on a jury's verdict for the plaintiff in an action to recover damages for personal injuries. On August 28, 1933, the plaintiff was employed by Grunewald Tudor, who were under contract to do excavating work at 114th Street and Budlong Avenue in the city of Los Angeles. The defendant, B.W. Belyea, who conducted a trucking business, was engaged by Grunewald ...
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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 THE COURT. This is a proceeding to review an order of the railroad commission requiring the petitioners to cease their operations as carriers of freight by motor truck between Los Angeles and the San Francisco bay region and intermediate points unless and...
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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 478 THE COURT. Plaintiff Lillian E. Evans owned real property in the city of San Diego which was found by the court to be of the reasonable value of $31,500, and was subject to encumbrances in the amount of $15,500. She was induced to exchange said real prope...
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The defendant United Credit and Collection Company has appealed from a judgment quieting the title of the plaintiffs Romualdo and Caterina Lucci to the premises in dispute free and clear of all encumbrances, except a mortgage held by the San Francisco Bank as security for the payment of a note in the sum of $2,500; decreeing *Page 494 that the defendant has no right, title, interest, claim or lie...
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Defendant, during the years 1923, 1924 and 1925, was engaged in the manufacture and sale of household fixtures and hardware, with home office at Milwaukee, Wisconsin, and plaintiff was sales manager for its western division, or San Francisco branch, under contract to receive a stipulated monthly compensation, plus ten per cent of the net profits of the branch, payable at the end of each year. In ...
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Appeal from order and decree of final distribution, finding the entire estate of Hannah Cronvall, deceased, to be community property and distributing it to respondent Alfred Cronvall, the husband of said decedent and administrator of her estate, thus overruling the objections of appellants, two surviving nieces, who seek to share in the distribution of said estate as separate property of decedent...
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Action by plaintiff, Helen Kemp, to quiet her title to certain land located in Los Angeles County. Defendant answered alleging that he had an interest in said property by virtue of a sheriff’s certificate of sale issued to him pursuant to execution and sale regularly made by said sheriff upon a judgment for costs rendered in defendant’s favor in a will contest entitled: In re the Estate of Ma Rh...
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Motion to dismiss the appeal or affirm the judgment. The appeal is from a judgment for the plaintiffs in an action to quiet their title to certain real property in Alameda County. *Page 509 The plaintiffs based their claim of title on a deed to said property executed and delivered to the plaintiff, Walter Vinzant Allen, by Artee Allen McCrary in October, 1926. Artee Allen McCrary died in October,...
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Appellant was convicted of murder in the first degree and sentenced to suffer the death penalty. He appeals from the judgment of conviction and order denying his motion for new trial. The record is singularly free from error and the appeal presents no ground for reversal of the judgment. [1] Evidence was offered by the prosecution to prove that the murder was deliberate, premeditated and accomplis...
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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 517 This cause was taken over after decision in the District Court of Appeal, First District, Division Two, in order that we might more fully consider certain assignments of alleged error on the part of the trial judge in his conduct of the case. Upon an exam...
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This appeal by defendant from judgment for plaintiff, submitted on motion to dismiss appeal or affirm judgment, presents the main question of sufficiency of the evidence to support the conclusions of the court below. On September 26, 1931, plaintiff and defendant, then husband and wife, executed a property settlement agreement, dividing equally their entire community estate and further providin...
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In this, a judgment-roll appeal by defendants in an action to foreclose a chattel mortgage, they seek to show a lack of jurisdiction in the Superior Court of Los Angeles to enter the decree of foreclosure because at the time the decree was rendered in the action, the sum due was one over which the municipal court alone had jurisdiction. This claim seems to be entirely without merit. The facts nece...
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The appeals by the appellants Brown are from judgments in the consolidated cases above entitled and are presented on one record. The appellants Brown in 1923 applied to Guaranty Mortgage Company of California for and received a loan, the proceeds of which were used in completing the construction of a certain building. Two notes were given to evidence the loan, one for $90,000 and the other for $95...
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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 537 [EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 538 The plaintiff above named is the owner of unimproved lot No. 22 in block 15, tract No. 8235, in Los Angeles Co...
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A rehearing was granted herein because we entertained a doubt concerning whether the order hereinafter mentioned dismissing the action was in fact void. For reasons hereinafter stated we have concluded that it is unnecessary to determine that question. This action, instituted August 2, 1929, was at issue and on for trial on April 29, 1930. It involves a money demand for $1346.08.[1] At the time 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 550 THE COURT. A rehearing was granted in this case in order to give fuller consideration to the difficult questions of constitutionality and statutory construction involved. Upon such consideration, we adhere to and adopt the following part of our former opi...
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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 568 THE COURT. A hearing was granted in this case in order to give further consideration to the question whether the statute imposes a mandatory duty to levy a tax sufficient to cover past due principal and interest on the bonds as well as that to become due ...
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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 580 [EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 581 The petitioner, Joint Highway District No. 13, hereinafter referred to as the "District", was formed in 1928 b...
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Defendants were charged with the crime of assault with a deadly weapon. The jury returned a verdict against defendant Hanson of guilty of the offense charged, and against defendant Tillotson, a verdict of guilty of simple assault. Defendant Hanson appeals from the resulting judgment of conviction and from the order denying his motion for a new trial, contending that the record establishes no more ...
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THE COURT. A hearing was granted in this case to enable us to consider more at length the points made on the respective appeals. After such re-examination we are satisfied with the conclusions reached by the District Court *Page 593 of Appeal and adopt the opinion prepared by Mr. Justice Sturtevant of the First District, Division Two, as the opinion of this court. It is as follows: "While riding ...
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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 603 THE COURT. Upon consideration of this appeal, we hereby adopt as the opinion of this court herein, the following opinion heretofore prepared by Mr. Presiding Justice Conrey for the honorable District Court of Appeal, Second Appellate District, Division On...
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The principal question presented on this appeal may be stated as follows: In a suit by one partner against another, after dissolution of the partnership, upon his individual promissory note, may the defendant partner, in order to diminish or defeat plaintiff's recovery, set up by way of counterclaim a cause of action for an accounting for money of the dissolved partnership collected by the 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 622 We hereby adopt as part of this opinion the following language from the opinion prepared by Mr. Justice Thompson, heretofore rendered herein by the honorable District Court of Appeal for the Third Appellate District: "The defendant Pierre d'A Philippo was...
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This appeal presents the single question as to whether plaintiff Rice or defendant Pacific Bond and Mortgage Company has the prior lien upon a residence lot, and improvements thereon, at 101 Cambridge Avenue, San Leandro, California. Admittedly defendant Taylor was indebted to both these parties and was the record owner of said lot. On October 15, 1925, an encumbrance of some $4,000 existed on sai...
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This proceeding was instituted to annul an award of the Industrial Accident Commission in favor of *Page 639 Lillia E. Winkler, the surviving widow of Mark A. Winkler, who met his death while operating a Diesel gasoline power shovel owned by the Mono Construction Company, which at the time of Winkler's injury was rented to the Department of Water and Power of the City of Los Angeles under a writt...
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This is a companion case to that of Department of Water andPower v. Industrial Acc. Com., No. 14455, this day decided (ante, p. 638 [32 P.2d 354]). The petitioner herein, the National Automobile Insurance Company, was found by the Industrial Accident Commission to be the insurance carrier of the Mono Construction Company, at the time the employee, Winkler, met his death while operating a gasoline ...
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THE COURT. A hearing was granted in this case, on petitions of both plaintiff and defendant Archer, after decision by the District Court of Appeal, Fourth Appellate District. We now adopt, as part of our decision, the following portions of the opinion rendered therein by Mr. Justice pro tem. Morton. "Plaintiff, an elderly woman, without business experience, and of very limited schooling and educat...
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In October, 1913, D. W. Cozad recovered a judgment against defendant Raisch Improvement Company in the sum of $5,898.95 and costs, which judgment was affirmed on appeal. Fidelity and Deposit Company of Maryland had issued a policy of employer’s liability insurance in favor of said defendant in the sum of $5,000, and hence was liable in that amount. The said insurance company also executed an unde...
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I dissent. It is admittedly true: That the plaintiff, a private corporation, is the beneficial owner of the entire Edison Building; that the portion of the building leased to the Edison Company on a 15-year lease from 1918 to 1933, constitutes but 43.27 per cent of the whole building; that for three tax years (1927, 1928 and 1929) the holder of the legal title returned the entire building to the a...
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THE COURT. A hearing was granted in this case after decision by the District Court of Appeal, Third Appellate District. Upon a full consideration of the cause, we are satisfied that the opinion of Mr. Justice Plummer properly disposes of the issues, and we hereby adopt it as the opinion of this court. It reads as follows: "In this proceeding the petitioners seek a writ of mandate from this court d...
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THE COURT. On June 15, 1932, the petitioner was served with an order to show cause in disciplinary proceedings before the local administrative committee of The State Bar for Santa Barbara County. The order contained six charges on account of matters hereinafter discussed. The local committee found true the facts alleged in five out of the six charges, or counts, as they have been termed, and recom...
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Application is made for a review of the-action of the board of governors of The State Bar of California in recommending the suspension of the petitioner from the practice of the law for a period of two years. On October 20, 1932, Frank E. Kilpatrick and Booth B. Goodman, his partner in the practice of law in Oakland, were served with a notice to appear before Local Administrative Committee No, ...
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THE COURT. Application for writ to review the findings of the board of governors of the The State Bar and the recommendation based thereon that petitioner be suspended from the practice of the law for six months for a violation of rule 3 of the Rules of Professional Conduct of The State Bar of California. Rule 3 provides that a member of The State Bar "shall not employ another to solicit or obtain...
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This action was brought by the plaintiffs to recover damages for fraudulent representations made by defendants as to the boundaries of a lot which the defendants conveyed to the plaintiffs in exchange for property owned by the plaintiffs. Plaintiffs and defendants entered into negotiations for the exchange of respective properties owned by each. The property of defendants consisted of lot 49 of tr...
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This cause, submitted upon motion of plaintiffs to dismiss defendants’ appeal or to affirm the judgment, may be disposed of by a brief discussion leading to adoption of the latter course. The word “plaintiff” will refer to plaintiff Hamer, the coplaintiff being his assignee of a part interest in the cause. The word “defendant” will refer to the defendant J. Warren MacClatchie. About July 9, 192...
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The plaintiff sued the defendant for a divorce on the ground of desertion. The complaint alleged that the community property consisted of furniture of the value of about $100 and shares of stock in the Cities Service Company of about $250 in value. The defendant answered denying the desertion, putting in issue the question of the extent of the community property, and filed a cross-complaint for se...
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The petitioner was found guilty by the railroad commission of a violation of an order of the commission and was ordered punished by a fine of five hundred dollars and by five days imprisonment in the county jail of Los Angeles County. It was further ordered that in case of default in payment of the fine the petitioner be committed to said county jail until the fine be paid or satisfied in the prop...
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Appeal from a judgment entered on an order sustaining a demurrer to the plaintiff's complaint without leave to amend. From the complaint it appears that in March, 1928, the plaintiff sued the defendant for divorce on the ground of extreme cruelty; that the parties entered into a property settlement agreement including an agreement for the plaintiff's custody of the seven year old son of the partie...
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This judgment-roll appeal by plaintiff from judgment for defendants, in an action to declare the right of possession of certain real property occupied by plaintiff and his wife, has been submitted on motion to dismiss the appeal or affirm the judgment. The several contentions of appellant appear to be entirely without merit. The word "defendant" will be used to refer to defendant and cross-complai...
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Appeal by plaintiff from judgment for defendants entered on order sustaining, without leave to amend, their demurrer to plaintiff's amended complaint. The action is one to set aside a judgment on grounds of fraud and conspiracy. Although the amended complaint is voluminous in detail, a brief statement should suffice to *Page 740 show that the ruling of the court below was entirely correct, as the...
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Appeal by plaintiff from judgment entered upon order sustaining, without leave to amend, demurrer of defendants to the first and third causes of action stated in plaintiff's amended complaint for declaratory relief, for an accounting, for salary, damages and other and further relief. The complaint is predicated upon, and pleads in haec verba, a written agreement executed September 16, 1931, by pla...
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Plaintiffs, a judgment creditor and two stockholders of defendant corporation, filed herein their *Page 747 complaint, in the nature of a general creditors' bill, setting forth a resume of the financial condition of said corporation; alleging that while its assets exceeded its known liabilities, said assets were not marketable and the liabilities were subject to increase; that current liabilities...
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Plaintiff brought this action to quiet its title to certain real property situate in the county of Butte. The defendant, by way of answer and cross-complaint, set up an interest in the property under a two-year lease by the terms and provisions of which he was given the right to mine for and extract minerals from the property. He prayed that plaintiff take nothing by its action and that the terms ...
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By this application for writ of mandate petitioners seek to ascertain the validity of the recent amendment to section 595 of the Code of Civil Procedure (Stats. 1933, p. 1873), which, so far as here material, provides: "In all cases, the court shall postpone a trial, or the hearing of any motion or demurrer, for a period not to exceed thirty days, when all attorneys of record of parties who have a...
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This is an appeal by the plaintiffs from a judgment in favor of the defendants Edwin and Harriett Jones. The action was brought to quiet the title of the plaintiffs in and to the right to a one per cent of the production under an oil lease executed by the owners of lots 12 and 13 in block A of Mountain Meadows tract in the county of Los Angeles. The plaintiffs sued in their representative capac...
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Petitioner seeks a peremptory writ of mandate commanding respondent, as Registrar of Voters of the City and County of San Francisco, State of California, to omit from the proceedings leading up to the primary election to be held August 28, 1934, all referencé to the office of judge of the Superior Court of the State of California in and for the City and County of San Francisco, designated as offi...
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This is an appeal from a judgment for the plaintiff in an action to rescind and cancel a contract entered into between the parties in October, 1929, for the purchase by the plaintiff of a certain lot in the city of Los Angeles for the sum of $5,700. The claim for cancellation was based on alleged fraudulent representations of the defendant. A copy of the contract is annexed to the complaint as an ...
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This is a proceeding to review an order of the respondent commission denying disability indemnity and *768a death benefit to the petitioners as surviving widow and daughter of Charles H. Daugherty, deceased. Daugherty was employed as a helper at an oil-well plant in Long Beach. On August 24, 1931, in the course of his employment, he was descending a stairway when within a step or two from the bott...
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Plaintiffs instituted this action to recover damages alleged to have been suffered by them as the result of the fraudulent acts of the defendants who, as directors of the defendant Automatic Electrical Machine Company, a foreign corporation doing business in this state, are asserted to have conspired to cause, and actually did cause, the transfer of the entire corporate assets to one of their numb...
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MEMORANDUM CASES. THE COURT. A hearing was granted in this case after decision by the District Court of Appeal, Second Appellate District, Division Two. For the reasons expressed by us in People v. Talbot et al., Crim. No. 3668 (ante, p. 3 [28 P.2d 1057]), we adopt the opinion of Mr. Justice pro tem. Archbald of said District Court of Appeal as the opinion of this court...
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THE COURT. Appeal from a judgment in an action for ejectment after attempted cancellation of an installment contract *Page 780 for the purchase of realty. [1] The record in this case, except for the amounts of the purchase price, the payments made and damages claimed, is practically identical with the record inNevada Land Investment Corporation v. Sistrunk, Sac. No. 4809 (ante, p. 174 [30 P.2d 3...
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