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All Reporters → cal-app → Volume 101

Opinions in cal-app Volume 101

The purpose of this proceeding is to review an order of award of compensation made by the respondent tribunal, known as Department of Industrial Relations, Division of Industrial Accidents and Safety, to one Tyler for injuries sustained by him in the course of his employment. From the petition for a writ of review and the return thereto, briefly, but so far as are here essential, the facts which s...
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Defendant appeals from a judgment of conviction upon an information filed by the district attorney of Los Angeles County, charging him with the crime of "possession of a still," and from an order denying his motion for a new trial of the action. In urging a reversal of the judgment, appellant presents the following grounds: 1. That the evidence is insufficient to support the verdict. 2. Errors com...
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This action was instituted by the plaintiff to obtain a declaratory judgment determining the respective rights of the parties hereto under the terms and *Page 13 conditions of a lease entered into between said parties on the first day of February, 1924. On and prior to the date referred to the defendants were the owners of certain pier rights at Venice and Santa Monica in the state of California....
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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 22 This action was commenced to declare a trust in favor of plaintiff and to enforce an accounting thereof. In the court below plaintiff prevailed and after accounting had it was found that a large sum of money was due to the plaintiff and judgment entered ac...
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Mandate to compel the Superior Court of the County of Fresno to hear and determine a motion for an order to vacate and set aside a previous order, admitting the will of one Bessie M. Ball to probate, and appointing an executor thereof. The petition in substance alleges that the court had no jurisdiction of the estate for the reason that the deceased was not a resident of the county of Fresno at th...
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Respondent brought this action to recover the value of certain shares of stock which she claimed had been secured from her by fraud on the part of the appellant corporation. Appellant's chief contention is that the evidence does not support the finding of fraud. We have examined the transcript with care, and while the evidence is conflicting there is abundant evidence to support the court's findin...
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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 60 This appeal is from a judgment for the plaintiff for attorney's fees. The complaint set up three causes of action, the first alleging the performance by plaintiff of legal services of the reasonable value of $2,145.42, of which sum $319.75 had been paid, t...
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The plaintiff, as the assignee of Meyer Cloak Suit Company, instituted this action to recover judgment against the defendants upon a written guaranty signed by them, in the words and figures following, to wit: "We hereby guarantee payment for all merchandise purchased from Meyer Cloak Suit Company, and Granada Knit Mills by Mrs. N.L. Stucky of Red Bluff, California, up to the amount of Fifteen H...
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Various parties plaintiff in this proceeding, claiming to have furnished services and materials at the instance of the Economy Home Builders, a corporation, for the construction of buildings upon real property alleged to have been owned by several persons who had contemplated selling the realty to the corporation, filed mechanics’ liens thereon, and thereafter instituted this action against the o...
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The action which gives rise to this appeal is one wherein the plaintiff and respondent brought suit against the defendant and appellant upon an accident policy, issued by defendant corporation to one Robert Smith, deceased husband of the plaintiff. The policy in question provided for monthly payments to the insured in the event of partial or total disability caused by an accident, and the payment ...
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The defendants J.F. Bryant and E.I. Bryant were convicted on six counts of an indictment charging them and Marion R. Bryant with obtaining money by false pretenses, and acquitted on one count. The jury found the defendant Marion R. Bryant not guilty. Since this appeal from the judgments pronounced upon the verdicts and the order denying the motion for a new trial was perfected the appellant E.I. B...
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In this action to recover damages for personal injuries a motion for nonsuit was granted, and the *Page 93 defendants recovered judgment for costs in the sum of $122.80. Plaintiff appealed from judgment, which appeal is now pending in this court. Plaintiff now applies for writ of supersedeas to stay enforcement of the judgment. In addition to the facts above noted appellant states in her petition...
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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 96 This is a rehearing of an appeal from a judgment in an action for damages for the breach of a contract and for partial failure of the consideration therefor. The plaintiffs were the owners of an ice-cream business in Merced, called the Castle Ice Cream Com...
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J. — The defendant Alfonso Mesa was tried by the court sitting without a jury and found guilty of the crime of robbery. He prosecutes this appeal from the judgment pronounced against him and from the order denying his motion for a new trial. The sole ground relied upon for a reversal is the insufficiency of the evidence. The evidence is amply sufficient to justify the finding that Mrs. Mabel Mo...
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This is an appeal from a judgment in a proceeding in eminent -domain. The appellants owned 1.510 acres fronting on Alhambra Road in the San Marino City School District. The respondent sought by the action to condemn 1.308 acres thereof for school purposes, leaving as the remainder a parcel with a frontage of 471/2 feet on Alhambra Road and 186.37 feet deep. The court made a finding as follows: “T...
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This appeal is from an interlocutory decree of divorce granted to plaintiff, and from an order denying the defendant's motion for a new trial based upon the ground that the decision is contrary to the evidence. There was evidence introduced proving or tending to prove the following facts: The plaintiff and defendant intermarried on the twentieth day of December, 1910, at Victoria, Texas. In the sp...
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[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 112 The appellant, Ada Johnson, is the mother of Frankie Johnson, known in theatrical circles as Frankie Darro, a minor under the age of fourteen years. It is admitted that she and the respondent Frank Johnson intermarried at Los Angeles on January 15, 1923, ...
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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 124 While this cause is presented to us upon two separate appeals, one by the Hartford Accident Indemnity Company and E.P. Smith, upon a reporter's transcript prepared under the provisions of section 953a of the Code of Civil Procedure, and one by the Globe I...
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THE COURT. The defendant was convicted in the Superior Court of El Dorado County of a misdemeanor, to wit, the crime of driving a vehicle on a public highway *Page 144 while under the influence of intoxicating liquor, to wit, violation of section 112 of the California Vehicle Act. (Stats. 1923, p. 553.) [1] The transcript on appeal was filed in this court September 10, 1929. No brief has been fil...
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The defendant was convicted in the Superior Court of El Dorado County of a misdemeanor, to wit, the crime of driving a vehicle on a public highway *144while under the influence of intoxicating liquor, to wit, violation of section 112 of the California Vehicle Act. : (Stats. 1923, p. 553.) The transcript on appeal was filed in this court September 10, 1929. No- brief has been filed in behalf of app...
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Application to amend the record on file herein. It appears from the affidavit in support of the motion that in the preparation of the bill of exceptions to be used on appeal certain evidence was inadvertently omitted, which evidence is necessary to present to this court the alleged error of the trial court in making its findings that plaintiff was entitled to recover the amount of judgment rendere...
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Plaintiff sued to recover storage charges paid to defendant under protest. Defendant had judgment, from which plaintiff has appealed upon typewritten transcripts. Plaintiff stored with defendant a large quantity of copra under a written contract in which defendant agreed to weigh and store the copra in its elevators and to make “prompt and efficient deliveries” when called for. The plan of stor...
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The plaintiff sued for damages for personal injuries. The cause was tried before a jury and resulted in a verdict in favor of plaintiff for two thousand five hundred dollars. From the judgment following the verdict the defendants have appealed upon typewritten transcripts. The injuries, which are the basis of the action, were caused while the plaintiff was riding in an automobile operated by the d...
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This is an appeal from a judgment upon a contract for the sale and delivery of electric energy. The respondent is an irrigation district organized and operating under the California Irrigation Act. The appellant is a public utility corporation organized for the purpose of supplying consumers with electric power and light. In February, 1924, the respective parties executed a written contract by the...
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Plaintiff, a judgment creditor of the defendant, had levied execution upon "real property of the defendant upon which defendant had filed a homestead. *163 Plaintiff then instituted this proceeding under sections 1245 to 1261 of the Civil Code for the appointment of appraisers to appraise the homestead property. The trial court denied plaintiff’s petition and she has appealed from the order o...
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Claiming that one of defendants’ buildings encroached on their lot, the plaintiffs sued to abate an alleged nuisance. From a judgment in favor of the defendants the plaintiffs have appealed. The defendants’ deed contains a description by metes and bounds and it also contains the following description, “ ... all of lots 6 and 7 as said lots are shown and delineated on that certain map entitled M...
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The three cases noted in the title were all instituted against the defendants to recover damages in trespass for cutting and removing timber from lands claimed by each plaintiff. The cases were consolidated for trial, were tried before the court sitting without a jury, and in each case judgment went for the defendants. The plaintiffs have joined in an appeal on typewritten transcripts. The cont...
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This is a motion to dismiss the appeal on the ground that appellant's opening brief is not in the form required by the rules of the Supreme Court and of the District Courts of Appeal. A motion was formerly made on the same ground and this court, in disposing of it, ordered appellant's opening brief stricken from the files and granted him leave to file another in lieu thereof (Barnes v. Cocke, 99 C...
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Petitioner obtained a judgment for damages after verdict by a jury in an action for malicious prosecution, and subsequently the trial court granted a new trial. Petitioner now seeks, by this proceeding in mandamus, to compel the issuance of an execution, claiming that the order granting the new trial was not made within the period of time allowed therefor by section 660 of the Code of Civil Proced...
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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 176 This action was brought by plaintiff and respondent Lim Ben as the administrator of the estate of Lim Sing Pong, deceased, to recover damages for the death of said decedent, due, it is alleged, to the negligence of the defendant corporation, appellant her...
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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 188 This action was brought by plaintiff (respondent herein), as the assignee of one James H. Hardy, to secure a balance due upon the purchase price of *Page 189 certain promissory notes which the General Mortgage Company, defendant below and appellant herei...
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This is an action for an accounting and partition of certain property described in the plaintiff's complaint. The record shows that on and prior to the fourteenth day of July, 1923, the plaintiff Clara E. Deacon and the defendant Daniel A. Deacon were husband and wife; that on said date an agreement settling and adjusting their property rights was executed and acknowledged. This agreement recited ...
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The plaintiff had judgment against R.E. Whittiken and Mayme B. Whittiken, his wife, for the sum of $985.75, and also for the foreclosure of a mechanic's lien on certain property described in the complaint. From this judgment said defendants appeal. The action was originally begun for the collection of $1750 and the enforcement of a lien to secure the payment thereof, on account of work and labor p...
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Two actions and two appeals, numbered respectively in this court 3906 and 3907, are involved herein. The two actions were tried together in the court below, are presented here upon one transcript, and will be decided as though only one action were involved. Both actions were brought to quiet title, one to quiet title to lots 5 and 6 in block "E," and the other to quiet title to lot 7 in block "E,"...
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The defendant was convicted of manslaughter for the negligent driving of an automobile which resulted in a collision and the death of John Browning. At dusk on the evening of May 31, 1929, the defendant, who is a Filipino, was driving a large Chrysler sedan car containing four other countrymen at a high rate of speed along the Thornton Road in San Joaquin County. At the same time the deceased with...
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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 220 [EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 221 [EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE T...
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Appellant, together with two co-defendants, Nick Boreoffi and William Durakoff, were charged in a joint information with the commission of the crime of burglary. The offense was alleged to have been perpetrated in a building located at 1161 Mission Street, San Francisco, commonly known as the Beecher Furniture Company. Appellant, together with the other defendants, pleaded not guilty. After trial...
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This is an appeal by plaintiff from a judgment of nonsuit. The complaint alleged that defendants took possession of certain vacant store buildings on Third Street of which plaintiff was lessee, and posted upon and inside of said stores and buildings circus bills, posters and advertisements. It alleged that such possession and use was fraudulent and forcible; that it injured and disfigured the buil...
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This is an action to quiet title. Judgment was entered in favor of the defendants and the plaintiff has appealed. June 6, 1905, J.G. Schaefer was the owner of a tract of land adjacent to and "southeasterly of the Ballona Road No. 2" (now Washington Boulevard) in Los Angeles County. On that day he executed a deed conveying to A.M. Squire 100.44 acres of the land "lying southwesterly of a line descr...
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This action was brought by plaintiff against defendant for divorce and to secure the custody of and support for Marcelle Mills, the daughter of the parties, of the age of three years. The plaintiff was given an interlocutory decree of divorce, with the custody of the child and twenty dollars ($20) a month for the support of the minor. The complaint was filed by plaintiff in the Superior Court of S...
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The petitioner, William McBride, was convicted in the Circuit Court of the state of Oregon, for Washington County, under four indictments charging him with larceny and grand larceny, after pleading guilty to the charges, and was on the ninth day of June, 1928, sentenced to be imprisoned in the state penitentiary of the state of Oregon for indeterminate periods, not to exceed five years each, upon ...
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Plaintiffs, as stockholders of the defendant corporation, sought an adjudication that an assessment levied upon their stock and a subsequent sale of such stock for nonpayment of that assessment were void. The court found that the assessment was valid; that, while there were irregularities in the proceedings leading up to the sale, yet plaintiffs were not entitled to relief because of noncompliance...
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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 276 The plaintiff herein appeals from a judgment for the defendants in an action for damages for personal injuries sustained by reason of a collision between the automobile in which she was riding as a guest and a truck and trailer owned and operated by defen...
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THE COURT. [1] The petition for writ of prohibition is denied. (Williams v. Chadbourne, 6 Cal. 559; Crocker v. Conrey, 140 Cal. 213 [73 P. 1006]; Bar Association v. Superior Court, 64 Cal.App. 590 [222 P. 185].) *Page 290 ...
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The petition for writ of prohibition is denied. (Williams v. Chadbourne, 6 Cal. 559; Crocker v. Conrey, 140 Cal. 213 [73 Pac. 1006]; Bar Association v. Superior Court, 64 Cal. App. 590 [222 Pac. 185].)...
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This is an action for specific performance of a contract for the sale of land. Judgment was entered in favor of the plaintiff and the defendant has appealed. [1] A careful examination of the record shows that there is no allegation, proof or finding on the question of the adequacy of the consideration which the plaintiff agreed to pay for the property. The judgment, therefore, must be reversed. (C...
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This appeal, taken to the Second District Court of Appeal from the judgment of the Superior Court of Orange County, has been transferred to this court *292 for decision, and is submitted, by stipulation of the parties, on the briefs on file. The appeal is from a judgment for plaintiffs for the recovery from the defendant Southern California Investment Company the sum of $930.63 by way of cont...
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Defendants were engaged in manufacturing, rebuilding and retreading automobile tires at Colton, California, with various branch stores. The plaintiff paid to the defendants $1500 in cash for the privilege of becoming the manager of their branch store at Santa Ana, California. He entered upon his duties as such branch manager, under a written agreement which provided, among other things, that defen...
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Mandamus to compel respondent to expunge the entry of an order with reference to the payment of alimony pendente lite from the "Judgment Docket Book." The facts show that on November 16, 1922, petitioner filed a complaint in an action for divorce; on February 14, 1923, defendant therein filed a demurrer to the complaint. On November 1, 1923, the court made an order directing petitioner to pay his ...
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The district attorney filed an information against the defendants charging them with robbery. The defendants appeared and each pleaded not guilty. They were tried together before the trial court sitting with a jury. It returned separate verdicts finding each defendant guilty of robbery in the first degree. The defendants made a motion for a new trial. The motion was denied. From a judgment entered...
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The appellant was charged by information filed by the district attorney of Los Angeles County with statutory rape, alleged to have been committed upon a female person of the age of fifteen years, on or about December 1, 1928, December 15, 1928, and March 30, 1929. Having been convicted upon all three counts, a motion for a new trial was presented, which was denied, and the defendant appeals from t...
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Plaintiff corporation, the appellant here, brought this action in claim and delivery to recover an automobile. The complaint alleges that plaintiff and defendants, other than defendant-respondent Frost, had, on January 27, 1926, entered into a written agreement for the purchase by said defendants from plaintiff of a Jordan sedan for the agreed price of $1723.70, payable in cash on January 27, 1926...
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Plaintiffs, who are the surviving widow and minor children of one Robert Fulton Sweatman, appeal from a judgment rendered in favor of respondent corporation upon the sustaining of its demurrer to the second amended complaint without leave to amend. Respondent was the sole defendant upon whom process was *Page 319 served. The action was to recover damages for the death of Sweatman resulting from a...
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The plaintiff and respondent in the instant case filed a suit in replevin against J. T. Milligan, also including several fictitious names, and praying that upon discovery of the true names of other defendants they be substituted therefor. J. T. Milligan and the appellant Edwin S. Milligan were both served, the return of the sheriff showing that he had served John Doe, whose true name was Edwin S....
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The complaint alleges that the defendant is engaged in the general banking business under the banking laws of this state; that in the year 1907 it became the owner of a tract of land described in the complaint; that in the year 1911 it conveyed the land to the plaintiff, reserving and excepting all minerals and mineral rights therein; that its title to and ownership of such minerals and mineral ri...
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This action was brought by plaintiff against defendant to recover the sum of $800, on an insurance policy written by defendant on the property described therein. Plaintiff recovered judgment for $746.91 and defendant appealed. It appears from the record before us that on April 11, 1923, appellant issued its policy of insurance in the sum of $800 on the building involved, for the term of three year...
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The plaintiff began this action to recover of and from the defendants, and especially from the Taft Realty Company, the sum of $6,266.50, based upon an instrument in writing which is in the words and figures following, to wit: "Hollywood, Calif. 6/6/23. "It is understood and agreed that Frank H. Greve is to receive 2% of the gross sales made by us in the Greve Tract at the S.W. intersection of Pic...
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This is an appeal from a judgment of divorce which was awarded the defendant upon her cross-complaint and confirming a previous agreement settling the property rights of the spouses. The sole question is the validity of this contract. The plaintiff filed an action for divorce against the defendant on the ground of extreme cruelty. The complaint alleged that she was possessed of certain communit...
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The action which gives rise to this appeal was brought in the Municipal Court of the City of Los Angeles for the purpose of recovering judgment for $1,000, the complaint being drawn in the form of a common count, alleging the rendering of services by the plaintiff to the defendant, Hettie Reese, at her instance and request, and the reasonable value thereof. From a judgment rendered in favor of the...
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In this proceeding petitioner seeks to prevent the enforcement of an order made by the Superior Court in a supplementary proceeding brought under section *Page 364 717 of the Code of Civil Procedure, in aid of an execution issued pursuant to an order for the payment of alimony in a certain divorce action commenced by Julius Robbins, plaintiff, against Pauline Robbins, defendant. After the suppleme...
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This appeal is taken from a judgment entered in favor of the defendants upon the failure of the plaintiff to amend her complaint after demurrers sustained and therefore the only question before us is as to *Page 367 the sufficiency of the facts stated to constitute a cause of action against the defendant sheriff and his deputy. An understandable presentation of the points involved in the discussi...
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The plaintiffs have appealed from a judgment of nonsuit rendered against them in the court below. Their opening brief is all contained under one heading, to wit: "Statement." Some of the pleadings are set forth and then appellants tell us in the most general way about some testimony which was excluded, whether erroneously we cannot judge because sufficient to enable us to say is not printed either...
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A complaint seeking to enjoin twenty named defendants and a large number sued by *Page 375 fictitious names from violating certain restrictions, alleged to have been imposed by agreement upon about 100 lots in Hopper Sons Western Avenue Tract in the city of Los Angeles, was filed in the court below. Eleven of the defendants interposed a general and special demurrer, which was sustained without l...
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Two informations, both of them charging the offense of violating the State Poison Act (Stats. 1907, p. 124), were filed against the defendant. One of them alleged the crime to have been committed on March 24, 1929, and the other on March 25th. The cases were consolidated and he was found guilty of both offenses. This was on May 20, 1929. Time for sentence was fixed by the court for May 23d. On thi...
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The plaintiff had judgment against the defendants for the principal sum of $3,000 and interest in the sum of $630, upon an action instituted to compel payment of the reasonable value of work and labor performed by the assignor of the plaintiff at the instance and request of the defendants. The complaint is in two counts, but as a nonsuit was granted as to the first count it is only necessary to co...
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Appellant, who as plaintiff in the court below recovered judgment on a verdict for $300 as damages for the death of a son eight years and eight months old, appeals from said judgment on the sole ground *Page 390 that the recovery is inadequate. It is contended that since the special damages for hospital, medical and funeral expenses total $235, the balance of the judgment, or $65, as general dama...
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Since the appeal from the judgment and an order denying the defendant's motion for a new trial was perfected the appellant has died. The question now under consideration is: What is or should be the effect of his death upon the proceedings? Counsel for appellant argues that this court should proceed to a determination of the merits of the appeal in order that the reputation of the deceased may not...
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[1] The determinative question upon this appeal has recently been decided, and we need not here for the purposes of a ruling thereon discuss the facts involved. Appellant was charged by information with grand theft, the pleading consisting of eight counts or separate alleged offenses. His counsel at the opening of the trial announced that "the defendant consents and requests that the case be tried...
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This is an appeal from a judgment of dismissal of an action for libel, which was rendered upon motion at the death of the accused. *Page 400 The appellant commenced an action for libel against George H. Greenfield. His answer was filed controverting the essential allegations of the complaint. The defendant then died. Upon proceedings duly had, his widow, Eva K. Greenfield, was appointed and quali...
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The complaint alleges that, for a valuable consideration, the defendant agreed to purchase for the plaintiffs the land described in the complaint and to pay the purchase price thereof "for and on behalf of said plaintiffs"; that, thereafter, "without the knowledge or consent of said plaintiffs, the said defendant did procure and purchase said property and . . . obtained, without the knowledge or c...
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The only issue on this, a second appeal from a judgment had in the Superior Court of the county of San Bernardino is as to the amount, if any, the appellant is entitled to recover, on a rescission by the defendant, the vendee under a conditional contract of purchase and sale of an automobile truck, for benefits received by the vendee from use of the truck while in his possession. The action was br...
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This was an action originally brought by the plaintiffs as assignees of one W.C. Gilman to recover a balance of the purchase price of certain hogs, alleged to have been sold by Gilman to defendant. To the complaint the defendant filed an answer and counterclaim based upon allegations that the hogs sold him by Gilman were infected with cholera. He also filed a cross-complaint against the plaintiffs...
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The plaintiff brought this action as a taxpayer, in behalf of himself and all other taxpayers of Orange *Page 419 County, against the defendant as justice of the peace of Santa Ana township, Orange County, seeking a writ of mandamus directed to said defendant, commanding him to pay into the county treasury all money received by him as such justice of the peace from parties to any marriage solemni...
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Certiorari to review the action of the Superior Court in dismissing an appeal taken from a judgment rendered in the Justice's Court. In substance the petition recites that on the twenty-eighth day of July, 1928, the Golden West Credit and Adjustment Company, a corporation, commenced an action in the Justice's Court of the City and County of San Francisco, against J.D. Small and F.L.W. MacDonald, 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 428 [EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 429 This is an action for damages for personal injuries sustained by plaintiff when an automobile milk truck which...
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This is an appeal from a judgment in favor of plaintiff in an action for declaratory relief and for the reformation of a contract. The plaintiff was engaged in business at Los Angeles under the firm name of Pioneer Wall Paper Company. The defendants were conducting an advertising business by means of the use of an automatic electric picture projecting machine. May 14, 1924, the respective parti...
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THE COURT. This is an appeal by plaintiff from an order modifying a final decree of divorce in so far as its provisions relate to the custody and maintenance of two minor children, a girl and a boy, aged six and one-half and four years, respectively, at the time the order in question was made. The interlocutory decree was granted to appellant in May, 1925, upon the ground of extreme cruelty, and i...
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Plaintiff sued for damages, claiming breaches of several covenants relating to real property. Defendant had judgment and the plaintiff has appealed on a bill of exceptions. Plaintiff is the owner of lot 6 and of a portion of lot 8 in what is known as Laughlin Park in the city of Los Angeles. Defendant is the owner of a portion of lot 9 of the same tract. The Laughlin Park Company, a corporation, i...
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[1] Service of summons in an action was attempted to be made upon Security Investors Realty Company by delivery of copies of summons and complaint to Shirley E. Meserve, secretary of said company, more than a year after he had tendered his resignation in writing as secretary and director of said company, which resignation was deposited in the United States mail, directed to the Security Investors ...
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The parties to this action agreed in writing on April 11, 1923, that the appellant should perform the necessary legal work for respondent in connection with the proposed construction of an apartment house, for a fee of seven thousand five hundred dollars. Respondent agreed to pay one-third thereof "when the main contract for the construction of the building is let," one-third "when the *Page 454 ...
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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 458 This is an original proceeding instituted by the petitioner herein praying that a writ of mandate be directed to the respondent as auditor of the city of Stockton, to draw a warrant in favor of the petitioner against the city of Stockton for the payment o...
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[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 472 This appeal was taken by the plaintiff from a judgment of the Superior Court of Orange County denying plaintiff's demand for recovery of $625 with interest, the contract price for services rendered in preparing building plans and specifications. The contr...
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Appellant brought suit against respondent alleging conversion of seven cows of the value of $266 and damage in the sum of $500 from the conversion. Respondent denied the conversion and damage and filed a cross-complaint alleging conversion by appellant of seven of respondent's cows to his damage in the sum of $700. A trial was had before the court without a jury, and judgment was rendered against ...
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[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 484 From a judgment based upon a verdict awarding plaintiffs (the sellers) the price of five carloads of lumber, defendant (the buyer) appeals, claiming (1) that, as title to the lumber did not pass, the verdict erroneously awarded the contract price in accor...
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Appellant brought this action upon an assigned claim of the Fyfe-Wilson Lumber Company to recover damages for the alleged conversion of certain logging equipment located in the state of Oregon. Judgment of nonsuit was entered and the appeal is taken therefrom. The respondent Moore Mill and Lumber Company is an Oregon corporation and the Fyfe-Wilson Lumber Company is incorporated under the laws of ...
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Plaintiff sued to set aside certain deeds conveying real property to defendant. The cause was tried before the court sitting without a jury. Findings and judgment favored the defendant and the plaintiff has appealed on a bill of exceptions. Dr. Kuznik was the mother of the plaintiff, the defendant, and of two other children. She died April 19, 1925, at the age of seventy-three years. About two mon...
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Plaintiff sued under section 3412 of the Civil Code to have a deed which had been recorded through inadvertence and mistake delivered to her and canceled. Plaintiff had judgment and the defendants appeal upon typewritten transcripts. The complaint alleged the execution of a written contract by plaintiff and defendants for the sale of certain real property which in express terms provided for the de...
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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 505 [EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 506 [EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE T...
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The facts upon which this appeal is predicated are that the defendant bought some lumber from a man *Page 527 by the name of Bergman, in payment of which the defendant gave its trade acceptance to Bergman, payable about sixty-seven days from the date thereof. Some years preceding such transaction Bergman, who theretofore had become indebted to the plaintiff bank, was adjudicated a bankrupt. The d...
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The plaintiff and defendant entered into an agreement of exchange whereby the plaintiff agreed to convey to the defendant a contract of purchase of a lot at Clearwater, California, and deliver to defendant a promissory note executed by himself and his wife, Mae Sourisseau, in the sum of $600, and in return to receive title to twelve lots in El Centro, Imperial County, California. Soon after the e...
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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 534 In this action for the recovery of Liberty and Victory bonds and a note and mortgage securing the same from the defendant bank, the action having been dismissed as to the other defendants, the pleadings framed for decision the following issues: (1) The ch...
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This case now comes before the court upon hearing granted after the court had entered an order denying the application for the writ. On both hearings the cause was heard upon notice, and upon demurrer to the petition, and upon the petition and the answer of respondents. The opinion which accompanied said former order reads as follows: "There is pending in the Superior Court an action, number 273-3...
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This matter comes up on a petition by appellants for a writ of supersedeas. The matter before the court was originally initiated in the Superior Court on petition for a writ of mandate. The writ of mandate was issued as prayed for in the said petition, and an appeal was taken from the judgment to the Supreme Court. Thereafter, a petition for a writ of supersedeas was filed in the Supreme Cour...
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The respondent contracted in writing with one James H. Aye, as general contractor, to construct a dwelling-house. The latter obtained appellant's services to construct certain tile work in two bathrooms, which later proved defective, whereupon respondent demanded that appellant perform necessary reconstruction work, which he declined to do. It was done by another, whom respondent paid, and thereaf...
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Marcus Lathrop, as executor, substituted as party plaintiff in place of Edmund E. Katz, deceased, August 1, 1928. This appeal was taken to the District Court of Appeal for the Second Appellate District and transferred to this court for decision. Judgment was for plaintiff in the trial court in the sum of $537.50 and costs amounting to $17.10, on suit for the use and occupation of plaintiff's wareh...
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On April 16, 1927, appellant filed its action against defendants, seeking to foreclose a materialman's lien. Respondent was named as contractor and personal judgment was sought against him. The summons is not in the record, but respondent admits personal service in the county of Riverside. On October 21, 1927, the default of respondent was entered, and on December 3, 1927, a default judgment was r...
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This is an action based upon alleged fraud and deceit. Archibald Andrew, plaintiff in the court below, sought therein to recover the sum of $14,594 paid by him to one E.A. Shouse for eleven automobile sale contracts which plaintiff claims he was induced to purchase by reason of the fraudulent statements, misrepresentations and deceit of the defendants. The contracts were later found to be fictitio...
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On November 19, 1923, the respondent Daly Bank Trust Company of Anaconda, Montana, transmitted to respondent Charles E. Sackett, at Los Angeles, California, its draft on the Wells Fargo Nevada National Bank of San Francisco, California, for $1,000. On November 23, 1923, the payee indorsed the same to respondent N.M. Hayter, who in turn indorsed it to R.F. Ingold, appellant herein, and, after depo...
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This is an action by a broker for the recovery of a commission for the sale of an orange grove, claimed to have been made by plaintiff and one L. L. Hammersley, a salesman in his employ. On March 6, 1926, the defendant executed and delivered to plaintiff a written listing agreement. On April 19th, the said Hammersley, acting for plaintiff, secured from defendant what was apparently a written opti...
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The defendants appeal from an adverse judgment in an action to recover rentals claimed to be due under the terms of a written lease and for damages on account of the alleged loss and conversion of personal property while defendants were in possession of the leased premises. The lease was entered into on December 7, 1925, between plaintiffs, J. D. Grove and wife, and the defendants Morris and In...
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This is an appeal by the plaintiff from an order of the Superior Court in and for the City and County of San Francisco vacating four separate judgments in a consolidated action involving eleven different mechanic's lien cases; also, an appeal from two other ex parte orders of the trial judge. The facts are not in serious dispute and are briefly these: On February 20, 1926, Alexander G. Mattson, a ...
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The plaintiff commenced an action against the defendants to foreclose a mechanic's lien. The owners appeared and answered. A trial was had before the court sitting without a jury. The trial court made findings of fact in favor of the plaintiff and from a judgment entered thereon the defendants have appealed under section 953a of the Code of Civil Procedure. [1] Before any evidence was introduced t...
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The transcript on appeal herein was filed on June 14, 1929, and appellants' opening brief was not presented for filing until September 20, 1929. Theretofore, on the fifth day of September, 1929, a notice of motion to dismiss the appeal was filed herein, it having been served on said day on the attorney for appellants. Section 4 of rule I of the Rules of the Supreme Court and of this court provides...
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Plaintiff sued for injuries received in an automobile collision. The cause was tried before a jury and resulted in a verdict for plaintiff and against the defendants Black and Hazel Reding in the sum of ten thousand dollars. The defendant Reding alone appeals from the judgment following the verdict, upon typewritten transcripts. *Page 611 Two grounds of appeal are advanced – that the evidence is ...
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THE COURT. This is an action by the mother of two illegitimate children to compel the defendant, as father of said children, to provide funds for their support. Defendant appeals from the judgment entered against him. [1] This appeal is presented solely upon the ground that the evidence is insufficient to sustain the finding of the court that appellant is the father of said children. Examination o...
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This is an action by the mother of two illegitimate children to compel the defendant, as father of said children, to provide funds for their support. Defendant appeals from the judgment entered against him. This appeal is presented solely upon the ground that the evidence is insufficient to sustain the finding of the court that appellant is the father of said children. Examination of the record sh...
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Defendant L.L. Baker appeals from a judgment rendered against him and Charles L. Hoffman in an action for the reasonable value of legal services. The first point presented by appellant is that the evidence was insufficient to sustain the finding of fact made by the trial court to the effect that, at the special instance and request of appellant and his co-defendant, plaintiff performed the service...
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On April 8, 1927, one Thomas J. Casey filed an action in the respondent court praying judgment against D.C. Gulick, defendant there and appellant here, in the sum of $150. It appears that appellant incurred an indebtedness in the township of Indio, in Riverside County, to Casey, and on March 30, 1927, in the same township and county, gave him his check in the sum of $150, made payable to Thos. J. ...
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This is an appeal by the defendant Sunset Mutual Life Association from a judgment for $1400, with interest and costs, on a mutual benefit life insurance policy. The insurance was taken out by one Henry Niel Chase, upon an application in writing made by him on the fifth day of April, 1927. The policy bears date of April 11, 1927. The insured had an attack of illness on April 7th, and on account of...
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The action which gives rise to this appeal is one wherein plaintiffs, as huyera of certain real property, sought to recover from the defendants, one of whom was the owner of the property and the other the agent of the owner, a judgment for the sum of $300 paid on account of the purchase price. From a judgment in favor of plaintiffs for the sum of $300, as prayed for, the defendants appeal. On t...
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Petition for a writ of mandate to compel the Superior Court of the State of California, in and for the County of Los Angeles, and J. Walter Hanby, Judge of said court, to order L.E. Lampton, county clerk of Los Angeles County, to issue a writ of assistance directed to the sheriff of Los Angeles County to let petitioner into the possession of certain real property sold under a foreclosure *Page 640...
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This is an appeal from a judgment for plaintiff in an action in replevin. July 10, 1924, the plaintiff and Frederick H. Weber entered into an executory contract by the terms of which certain equipment was purchased for a restaurant in Los Angeles for the sum of $2,136.82, which was partially paid on delivery of the personal property. The balance of the purchase price was to be paid, together with ...
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This is an action for personal injuries suffered by plaintiff Maria Mahoney when an automobile in which she was riding as a guest was struck by a railroad train alleged to have been in the "exclusive possession and control" of the defendant Railway Company. Verdict and judgment went for the defendants and the plaintiffs have appealed from the judgment. The accident occurred near a country crossing...
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This is an appeal on the part of certain defendants from a decree foreclosing a mortgage. [1] In filing an amended complaint the names of Paul G. Moorhead and wife were eliminated and they were abandoned as defendants. They, however, voluntarily appeared and answered without securing permission of the court. On motion duly made their answer was stricken from the record and the action dismissed as ...
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The plaintiff filed a com- plaint to recover the balance of an- account for goods, wares and merchandise sold and delivered] alleging the existence of a copartnership between the defendants. An agreement was introduced in evidence dated October 27, 1923, which it is conceded establishes the fact that the defendants did enter into a partnership undertaking on that date. On this basis, and after ...
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This is a motion to dismiss an appeal. The respondent filed in the Superior Court of San Joaquin County a petition for a writ of prohibition asking that the appellant, Board of Dental Examiners of the State of California, be restrained from proceeding to investigate certain charges of alleged misconduct on the part of respondent in the practice of dentistry. Upon the filing of this petition a temp...
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The petitioner applied to be appointed guardian of Leon Principal, Jr., a minor. Notice of the application was served on the father of the minor and a hearing was had before the trial court. The court made an order granting the petition, and from that order the father has appealed and has brought up a typewritten record. The parents were married October 28, 1922. They were divorced by a final decr...
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The petitioner applied to he appointed guardian of Leon Principal, Jr., a minor. Notice of the application was served on the father of the minor and a hearing was had before the trial court. The court made an order granting the petition, and from that order the father has appealed and has brought up a typewritten record. The parents were married October 28, 1922. They were divorced by a final decr...
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The plaintiff commenced an action on a promissory note. It made a corporation the maker, and two individuals as indorsers parties defendant. L. 0. Foreman, one of the indorsers, was served and appeared and answered and a trial was had in the trial court before the court sitting without a jury. The trial court made findings in favor of the defendant, and from a judgment entered thereon the plain...
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THE COURT. [1] The petitioner's application for a writ of mandate directing the respondent court to dismiss the prosecution of the proceeding first referred to in the petition herein is denied on the ground that said court has no jurisdiction of such proceeding, no information therein having been filed in said court....
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The petitioner's application for a writ of mandate directing the respondent court to dismiss the prosecution of the proceeding first referred to in the petition herein is denied on the ground that said court has no jurisdiction of such proceeding, no information therein having been filed in said court....
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This action was brought to recover the sum of $1514.71 upon an undertaking executed by defendant for the release of an attachment levied in a case wherein appellant was plaintiff and G.V. Pettigrew Company defendant. The complaint alleged the commencement of the action by plaintiff herein against G.V. Pettigrew Company, the issuance of a writ of attachment therein and levy of the same upon moneys ...
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Plaintiff recovered judgment for damages in this action for fraud and deceit practiced upon him by the defendants inducing him to buy twenty-five cemetery lots (called sections) for speculation at the price of $165 per lot. The measure of damages applied by the court was the difference in actual value of the property at the time this action was commenced and what it would have been worth at that t...
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Plaintiff obtained a judgment and decree of foreclosure of a materialman's mechanic lien against the property of the appellants. [1] The sole contention on appeal is that the plaintiff's claim of lien is invalid because of its many faults of description of the appellants' property against which the lien is claimed. The appellants' said property is correctly described as follows: Lot five (5), bloc...
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The plaintiffs commenced an action to recover a judgment against the defendant for money. Thereafter they filed a second amended complaint. The defendant demurred. Its demurrer was overruled and thereafter it filed an answer which, among other things, pleaded an earlier judgment as a bar. A trial was had in the trial court before the court sitting without a jury. The court made findings in favor o...
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In the action which gives rise to this appeal, which was originally filed in the Municipal Court of the City of Los Angeles, the complaint is cast in the form of a common count alleging that the plaintiff had performed certain services "for and at the request of the defendants" and the reasonable value thereof. The title of the action, as it appears in the caption of the complaint, reads as follow...
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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 696 The complaint contains two counts. In the first it is alleged that, pursuant to the terms of a contract between the parties, "plaintiff drilled a well to the depth of 940 feet, and that said well was drilled in a proper and skillful manner and was fully c...
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THE COURT. An appeal by the defendant from a judgment entered in an action to recover the damage due *Page 705 to his refusal to accept and pay for certain coffee purchased by him. The appeal is presented on the judgment-roll. As grounds therefor it is contended that the title to the coffee passed to the defendant; that after his refusal to accept and pay the agreed price therefor the plaintiff, ...
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The plaintiffs commenced an action to recover moneys alleged to be due under a contract of employment. The defendants answered and filed a cross-complaint. The plaintiffs answered the cross-complaint and a trial was had before the court sitting without a jury. The court made findings in favor of the defendants and from a judgment entered thereon the plaintiffs have appealed. On the sixteenth day o...
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The plaintiff commenced an action against the defendant to recover a judgment. The defendant answered and a trial was had before the court sitting without a jury. The trial court made findings in favor of the defendant and from a judgment entered thereon the plaintiff has appealed and has brought up a typewritten record. Heretofore, L.D. Hill and F.E. Hill, copartners, owned a tract of land in Ker...
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Appeal by plaintiff Pacific Electric Railway Company from a judgment for the defendant Petroleum Midway Company, Ltd., in an action brought to recover judgment for $657, claimed by plaintiff as owing from defendant for demurrage charges on certain carloads of freight consigned to the defendant. The record fairly justifies the following brief statement of the material facts necessary to a consid...
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This is an action brought by appellant against respondents as makers of a promissory note dated January 14, 1922, due three years after date, in the sum of $500. A trial was had by the court, without a jury, and judgment was rendered in favor of respondents. *Page 720 The answer admits the execution of the note, pleads the statute of limitations, which plea was afterward abandoned, and sets up th...
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THE COURT. Appellant was charged by an information filed in the Superior Court of Alameda County with the violation of section 470 of the Penal Code, it being alleged that he, with one Elbert Pimental, forged a certain check, and knowingly uttered and passed the same as genuine. He was found guilty, and has appealed from the judgment of conviction and from an order denying his motion for a new tri...
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The plaintiff brought an action against the defendant to recover a broker’s commission, alleging that he produced a buyer ready and willing to buy and who offered to buy the mortgage, which defendant had offered to sell, on terms made by the defendant, and that the defendant’s offer was accepted by the buyer and he agreed to pay two per cent commission to the plaintiff upon consummation of the ...
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Plaintiff obtained judgment for $1,040, which was the amount of a deposit he made with the defendants when signing and leaving with them a proposal to purchase a confectionery store belonging to T.N. Smiley. The complaint was in three counts. The court made findings in favor of plaintiff on the first and third counts. The first was a common count for money had and received, and the third was based...
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Several parties plaintiff filed attachment suits against defendants and levied attachments. Various labor claimants came forward, claiming a preference upon the property and funds attached. Thereafter a judgment was entered pursuant to stipulation. The stipulation was signed by the attorneys for the several parties plaintiff and by the attorneys for the defendants and also by a firm of attorneys ...
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This is an appeal by the defendant, Victoria R. Greenwood, from an order denying her motion to set aside a final decree of divorce entered in her favor. The record reveals the following facts: S.J. Greenwood, the respondent, and Victoria R. Greenwood, the appellant, were formerly husband and wife. On July 29, 1922, they settled their property rights and separated. On March 4, 1924, the respondent ...
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THE COURT. An action to recover damages for deceit in which judgment was entered for the plaintiff. Defendants, who are husband and wife, own a ranch consisting of 320 acres of timber and farm land situated in Humboldt County. The plaintiff alleged that, induced by the oral promises of the defendants to convey to her for its reasonable value a lot approximately one-fourth of an acre in area which ...
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The defendant was convicted of the crime of rape committed upon a girl of the age of nearly nine years. He has appealed from the judgment. The evidence, both direct and indirect, is in substantial and irreconcilable conflict. The testimony of a physician, who examined the girl a few days after the alleged act, is sufficient to show that some person committed the crime. The testimony of the girl, s...
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This is an appeal from a judgment for damages for injuries sustained by the plaintiff as a result of having been struck by a taxicab while crossing a street after leaving a street-car at an intersecting corner in Sacramento. The appellant relies chiefly upon the alleged contributory negligence of the plaintiff as a cause for reversal. The plaintiff failed to look to his right, whence the automobil...
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This is an original petition for a writ of mandate to compel the respondent, as City Clerk of the City of Riverside, to place the name of petitioner upon the *755 ballots to be used at the general municipal election, to be held in the City of Riverside on the third Tuesday of November, 1929, as a candidate for election to the office of member of the council of said city from the fourth ward the...
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The plaintiff commenced an action against the defendants to obtain the possession of a lot and the apartment house located thereon, the same being situated in San Francisco and known as the Kenilworth Apartments. He set forth his rights in two counts. The defendants answered both counts and filed a cross-complaint. The plaintiff answered the cross-complaint, but on the trial the plaintiff introduc...
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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 771 The plaintiff sued for damages for personal injuries resulting from the collapse of a temporary wooden "grandstand" erected for the convenience of spectators at festivities known as the "Tournament of Roses," held in the City of Pasadena. Demurrers to the...
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The plaintiffs brought this action to cancel a deed purporting to convey to the defendant city the canal, water rights and other property of the McNally Ditch Company, a mutual water company. The interveners alleged the same facts and prayed for the same relief as the plaintiffs. The defendant city, which will be referred to as the defendant and respondent, entered into a compromise agreement with...
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MEMORANDUM CASES. Plaintiffs sued for damages on account of personal injuries to Ruth Colclough. The cause was tried before a jury and resulted in a verdict for plaintiffs in the sum of five thousand dollars. From the judgment following the verdict the defendants have appealed upon typewritten transcripts. [1] The issues involved are identical with those considered in Lowmi...
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THE CUURT. – [1] On the authority of McKenzie v. LosAngeles Life Ins. Co. et al., 88 Cal.App. 259 [263 P. 338], the petition for a writ of supersedeas is hereby denied. *Page 1 ...
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On the authority of McKenzie v. Los Angeles Life Ins. Co. et al., 88 Cal. App. 259 [263 Pac. 338], the petition for a writ of supersedeas is hereby denied....
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