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All Reporters → cal-app → Volume 121

Opinions in cal-app Volume 121

This is an action instituted to establish the claim of appellant to a five per cent “over-riding royalty” clear of operating and maintenance expenses, in the oil, gas *3 or other hydrocarbon substances produced from 120 acres of land described in a government oil lease in Kern County, California. The terms of the lease are similar to those usually found in government oil leases exe...
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THE COURT. On November 15, 1928, the will of Solomon Sandman, deceased, was admitted to probate in the Superior Court in and for the City and County of San Francisco, and letters testamentary thereon issued to I. Levy. The will in question was dated July 18, 1928, and the testator died on October 23, 1928. By its terms there was bequeathed to Henrietta Marks, the daughter of the deceased, the sum ...
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This is an appeal from a judgment sentencing the defendant for the crime of robbery and from an order denying his motion for a new trial. The trial was upon the issue raised by the plea of not guilty by reason of insanity, the defendant having entered the plea of guilty. But two reasons are assigned why we should reverse the judgment, the first being that the court refused consideration of the ins...
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Plaintiff brought two actions, one to quiet title and the other in ejectment. Defendant Clarice Dawson was the sole defendant who appeared and answered. The causes were tried together by the court sitting without a jury and from judgments entered in favor of plaintiff in both cases, defendant appeals. [1] Respondent claims through a deed from defendant Frances E. Dawson, the predecessor in interes...
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This is an action to have canceled and delivered up to the plaintiff, a certain promissory note executed by it in favor of the defendant in the principal sum of $15,023.77. There are three separate counts in the complaint. The first count alleges that said note was given without consideration. The second count alleges that subsequent to the execution of said note the consideration therefor, if ...
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This motion to dismiss an appeal by defendants from an order denying their motion to vacate and set aside an order granting a motion for a new trial (made after entry of a judgment of nonsuit in favor of the defendants) is made upon the ground that "the appeal attempted to be taken is from an order which is not appealable". When this motion to dismiss appeal was first made we denied it (117 Cal.Ap...
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This matter comes before this court on a writ of certiorari to review an order of the Superior Court of Los Angeles County, adjudging the petitioner to be in contempt of court, for having violated a restraining order issued in connection with an order to show cause why an injunction pendente lite should not be granted in the case of Skillington v. Melberg et al., then pending in the Super...
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This is an appeal by the California Trust Company, the contestant below, from a judgment and decree terminating the trusts created by the will of Laura E. Hubbell, deceased, and ordering distribution of the trust estate to Chauncey E. Hubbell, petitioner below and respondent here. The facts, in so far as they are pertinent to this appeal, are as follows: Laura E. Hubbell died on November 15, 1925,...
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On August 1, 1923, appellant was the owner of a tract of land containing approximately fifty-six acres, situate in the county of Los Angeles, lying a short distance easterly from the Torrance oil-field. On that date, appellant made a lease of this property to respondents Wilkes and Titus. This lease granted lessees the exclusive right of prospecting said premises for oil and gas, and of drilling f...
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Motion to dismiss appeal. The grounds of the motion are that no transcript of appeal has been filed by appellants within forty days from the date of settlement of appellants’ bill of exceptions. It is conceded that a bill of exceptions was prepared by appellants and presented for settlement to the judge who presided at the trial. This bill of exceptions was so presented on September 15, 1931, bei...
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The defendants were jointly charged in an information which will be hereafter referred to as the first information, with the crime of grand theft, it being alleged that they wilfully, unlawfully and feloniously took the sum of $10,000, being the personal property of Charles Joachim and Ida Joachim. They were also charged in a second information with the crime of grand theft, this information conta...
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The appellant was charged by an information filed by the district attorney of San Diego with the crime of robbery. To this charge he entered a plea of not guilty, and was thereafter tried by a jury and found guilty of the crime of robbery in the first degree. He thereafter made a motion for a new trial, which motion was by the court denied and judgment pronounced in accordance with the law. The ap...
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The action was to recover a balance claimed due ■ to plaintiff from defendant pursuant to the terms of a written contract, of which hereinafter. 'The proceeding became really one of accounting and after trial the court below awarded judgment in favor of plaintiff and against defendant in the sum of $385.42. The defendant appeals. On the twenty-first day of December, 1928, plaintiff and defendan...
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This is an appeal by a notary public and her bondsman from a judgment for damages caused by her attaching her certificate of acknowledgment to a certain deed of reconveyance purporting to be, but not in fact, signed by one R. Hummel. On October 27, 1925, the title to the real property in question was in Daisy Grisham. On that date Daisy Grisham executed and delivered two deeds of trust of such rea...
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Plaintiff brought this action seeking damages and the rescission of a contract to purchase 500 cases of dates. Defendants answered and filed a cross-complaint seeking damages for breach of the contract. The cause was tried by the court sitting without a jury and from a judgment in favor of defendants, plaintiff appeals. The sale was negotiated by a Mr. Hatton, who had originally imported the dates...
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Plaintiff brought this action to rescind a contract for the sale of real estate entered into with defendant Robert R. Fraser, and for damages in the event that the property conveyed by virtue of said contract could not be reconveyed to her. She alleged that the conveyance of said property was secured from her by the fraud of the defendants, all of whom had entered into a conspiracy *Page 81 to de...
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Plaintiffs had judgment below and defendants appeal. Plaintiffs and defendant Clark were the owners of adjoining lots in the same tract. Along the north line of defendant Clark's lot and the south line of plaintiffs' lot there were installed certain conduits for telephone and power wires. Defendant Clark, being desirous of selling her lot, arranged with plaintiffs to sell the north half of their l...
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Appellant, who was plaintiff and cross-defendant below, in April, 1928, made with respondent a contract to purchase from respondent walnuts to be grown during that season. The terms of this contract are somewhat uncertain, and this uncertainty, it would seem, was one of the causes leading to this controversy. Appellant in his complaint alleged a breach of this contract by respondent in that respon...
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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 94 From a judgment rendered against it and others, in favor of plaintiff, the defendant Ambassador Park Syndicate and certain individual defendants appeal to this court. As far as concerns the complaint in the action, it is based upon a non-negotiable promiss...
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The defendant B. T. Cowgill was charged by an information filed by the district attorney of Merced County with the crime of grand theft. He entered a plea of not guilty and went to trial before a jury. The jury found him guilty of petit theft. A motion was made for a new trial and denied by the trial court. Defendant was thereupon sentenced to imprisonment in the county jail of Merced County for ...
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The district attorney of Fresno County filed two informations in the court below charging Mangal Singh with felonies. One charged the defendant with committing the crime of sodomy upon a fifteen year old boy whom we will hereafter refer to as Vernon. The other information contained two counts, the first of which charged him with attempting to commit sodomy upon a boy whom we will refer to as Boyd,...
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This action was brought to recover for services rendered in preparing preliminary plans and specifications for the erection of a building. In a first cause of action it is alleged that "the defendant employed the plaintiff to prepare the design, drawings, plans and specifications, and estimate the cost of the building hereinbefore referred to, and to do all the engineering, architectural and other...
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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 120 [EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 121 In this case the plaintiff and respondent brought an action against Gus Chambon and State Farm Mutual Automobi...
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This appeal is from a judgment refusing to impose a personal liability upon respondents and refusing to declare and enforce a vendor's lien upon certain real property. Concerning the facts of the case there is, with one exception which will hereinafter be noted, no material dispute. On April 12, 1923, Guiseppe and Emilia Valpreda entered into a written contract with Otis and Ida Vestal wherein the...
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THE COURT. The above action was brought upon a claim for damages to plaintiff's automobile arising out of a *Page 145 collision with an automobile owned and operated by defendant, it being alleged that the damage was caused by the latter's negligence. Defendant denied the allegations of the complaint, alleged that the damage suffered by plaintiff, if any, was due to his contributory negligence, 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 149 [EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 150 This is an appeal from a judgment rescinding the sale of real estate and personal property and canceling the i...
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This is an appeal from a judgment for plaintiff for $779.47, the balance found by the court to be due for services performed under a contract with defendant at the rate of $95 per eight-hour day. The plaintiff contracted to furnish the necessary equipment and with such equipment to transport the salvaged pieces of *163 steel from the wreck of the steamship “Coos Bay” in the Golden Gate in San F...
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This is an action in ejectment. The trial court made findings in favor of the plaintiff and from the judgment entered thereon the defendant Francisca Sepulveda Burrows has appealed, and has brought up typewritten transcripts. On the trial the plaintiff introduced documentary evidence consisting of deeds showing on their face a chain of paper fee title back to Arcadia de Baker in 1897. The plaintif...
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Appellant seeks to recover from respondents, by this action, the amount of certain taxes assessed against its property for the year 1924, and which it paid under protest. Appellant claims that it should have been credited against the assessed valuation of said property with $383,300, unsecured promissory notes owing to residents of this state and $300,000 owing by it to certain banks upon unsecure...
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This action was brought to declare void and annul plaintiff's application for a certificate of membership in defendant's organization, also a contract alleged to have been executed in connection with the said membership, and to cancel a note given in payment of the fee owing defendant for said membership, and to recover the sum of $66.77 paid thereon. Plaintiff had judgment declaring void said mem...
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Prior to the sixth day of July, 1928, the appellant was charged by complaint, and pursuant to a preliminary examination was held to answer to the superior court upon three counts of grand theft. On said date the district attorney of Los Angeles County filed and caused him to be arraigned upon an information charging said three offenses, and, in addition thereto, five other crimes of grand theft sh...
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The respondent has made a motion to strike the transcript and to dismiss this appeal on the ground that the transcript was filed more than forty days after the settlement of the bill of exceptions. And it is true that the transcript was sixteen days late, having been filed on October 9, 1931. However, the notice of motion to dismiss was not given or filed until October 29th and for that reason th...
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This is a proceeding in certiorari to review the question of the jurisdiction of the Superior Court of Yuba County in the reversal and entry of a judgment on appeal from a justice's court which was taken upon questions of law alone. The G. H. Commercial Service Corporation brought suit against K. and C. Osida, husband and wife, in the Justice's Court of Marysville Township, Yuba County, for the v...
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In this action the plaintiff and appellant, Lesser, sued to recover from defendants and respondents, who are real estate brokers, the sum of $1,000 received by such brokers as a deposit or down payment from the proposed purchasers of certain real property belonging to Lesser, under a contract negotiated by said brokers. From a judgment for defendants Lesser appeals. It appears that the property ha...
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This is an appeal by plaintiff from the order of the trial court granting defendant's motion for a new trial upon the ground of insufficiency of the evidence to sustain the verdict. The action was one for damages for personal injuries arising out of a collision between a motorcycle upon which plaintiff was riding as the guest of the driver and an automobile driven by defendant. The accident occurr...
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Respondent, the surviving widow of the deceased, petitioned for an order setting apart a probate homestead claiming that the property was community property. Appellant, a daughter of the deceased by a former marriage, filed her written objections denying that the property was community property. Upon the hearing the trial court found that the property was community property and ordered that it be ...
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THE COURT. This is an original proceeding in mandamus asking that the trial court be directed to grant petitioner's motion to offset his judgment against a judgment for the defendant in an action entitled Layne v. Kirby. In the action referred to petitioner as plaintiff commenced an action for libel in which the demurrer of defendant Kirby was sustained. Plaintiff appealed to the Supreme Court, wh...
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The action was commenced to recover possession of a certain real property operated as a mine, plaintiff claiming possession by virtue of the terms of a written lease from the owner Kremmel, one of the defendants. In the complaint plaintiff sought damages for withholding in addition to his demand for possession. At the trial, however, all claims were abandoned other than the one for possession. The...
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The facts leading up to this case are briefly that on the eighth day of May, 1927, Gilbert Angrimson owned a Buick automobile. This automobile was being driven by one Wilson Parker, who was then a boy of the age of fifteen years, four months and twenty-nine days. While he was driving the car an accident occurred in which the plaintiff and respondent herein, Helen Sears, sustained injuries. The res...
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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 230 The facts leading up to this controversy are briefly: On July 19, 1926, the respondent was operating a freight train in interstate commerce in Riverside County, California, and transporting freight in a westerly direction toward Los Angeles, California. L...
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The petitioner seeks to annul an award of the Industrial Accident Commission in favor of the respondent, Thomas Gum. On September 8, 1930, Gum was employed by the petitioner and was assisting in the repair of a pump upon premises owned by the petitioner, and on that day he sustained an injury to his left hand and forearm causing an amputation thereof about six inches below the elbow-joint. After ...
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The deceased, Della S. Arnold, died on August 25, 1930, and on the same day her brother found in a drawer of deceased's desk a will she had made in 1926, with the last page, which had borne her signature, missing. A carbon copy of the will was found in her safe deposit box and there was also a copy thereof on file with the Citizens National Trust Savings Bank of Los Angeles, which was named in th...
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The deceased, Della S. Arnold, died on August 25, 1930, and on the same day her brother found in a drawer of deceased’s desk a will she had made in 1926, with the last page, which had borne her signature, missing. A carbon copy of the will was found in her safe deposit box and there was also a copy thereof on file with the Citizens National Trust & Savings Bank of Los Angeles, which was named in t...
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On the tenth day of May, 1929, C.D. Atkins was appointed administrator of the estate of Cleveland Atkins, deceased, and thereupon qualified as such administrator, and ever since has been and now is the duly appointed and acting administrator of the estate of said deceased. On the sixth day of September, 1929, C.D. Atkins was appointed guardian of the persons and estates of Roy Cleveland Atkins and...
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Fred R. Coats and Versa Coats, and R.E. Hathorn and Mrs. R.E. Hathorn were husbands and wives. Mr. and Mrs. Coats instituted separate actions in the court below to recover damages from Mr. and Mrs. Hathorn for personal injuries suffered by Mrs. Coats and for actual damages and loss of services of his wife suffered by Mr. Coats, both resulting from an accident in which an automobile driven by R.E. ...
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Fred R.Coats and Versa Coats, and R. E. Hathorn and Mrs. R. E. Hathorn were husbands and wives. Mr. and Mrs. Coats instituted separate actions in the court below to recover damages from Mr. and Mrs. Hathorn for personal injuries suffered by Mrs. Coats and for actual damages and loss of services of his wife suffered by Mr. Coats, both resulting from an accident in which an automobile driven by R, E...
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A jury awarded respondent damages in an action for alleged malpractice and judgment was entered *Page 266 accordingly, from which this appeal was taken. The amount of the award is not questioned, but as grounds for reversal appellants contend that the evidence is insufficient to establish liability on their part, and that the trial court erred in ruling upon the admissibility of certain evidence....
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Plaintiffs sued for damages for the death of Taza M. Hughes. The jury returned a verdict for plaintiffs in the sum of $24,500, and from the judgment on the verdict the defendants appeal upon typewritten transcripts. The defendant railway company operates a main line railway through Contra Costa County which is crossed at a flag station known as Nichols by a private road running to the plant of the...
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Plaintiff sued to enforce a lien for materials. Judgment went for defendants and plaintiff appeals on typewritten transcripts. The defendant Estate of D. F. Hill, Inc., as owner, entered into a contract with a general contractor for the construction of a building, the general contractor entered into a subcontract with defendant Independent Automatic Sprinkler Company for the installation o...
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This is an appeal from a judgment entered upon the rendering of a verdict for damages for personal injuries which were sustained by the plaintiff as the result of an automobile casualty. The negligence of the driver of defendants' automobile is admitted. Liability for the injuries sustained by the plaintiff and for damage to his machine are also conceded. It is contended the plaintiff was only sli...
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The petitioner seeks to set aside an order of the respondent court granting a new trial in an action in which she was the defendant. It is conceded that the original action referred to is one in which the plaintiffs were entitled to a jury trial unless this right has been waived by them. After that case was at issue and on November 28, 1930, the plaintiffs therein served and filed a memorandum of ...
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On June 1, 1925, Arley F. Darnielle and Edna Darnielle executed a promissory note and trust deed on real property securing the same in favor of Robert A. Klein Company. The note was in the sum of $2,650, payable in installments of $35 per month with interest at eight per cent per annum. The note and trust deed were on July 7, 1925, sold to appellants by Robert A. *Page 295 Klein Company for $18...
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An interlocutory decree of divorce was entered in favor of plaintiff and she was awarded alimony in the sum of $250 per month. No appeal was taken by either party from the portions of the decree above mentioned, but plaintiff appeals from the remaining portions of the decree wherein it was adjudged that there was no community property, that certain real property therein described was the separate ...
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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 304 A petition for rehearing herein was granted because we entertained some doubt concerning the correctness of the opinion heretofore filed, but upon further consideration we have concluded that the original opinion was correct, and it is now adopted as 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 312 Appellant sued to recover the possession of certain furniture or its value, together with damages for its detention. After trial by the court, respondent recovered judgment for the value of the furniture, less rent due appellant. Claiming that respondent'...
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This is an appeal by defendants The Owl Drug Company and William E. Smith, an employee of said company, from a judgment upon a verdict awarding to plaintiffs the sum of $25,000 as damages for false imprisonment of plaintiff Smiles Elsie Dowdell. Mrs. Dowdell was employed by The Owl Drug Company as saleswoman, and defendant Smith was employed by said company as an investigator. On March 19, 1928, d...
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This is an action against a notary and the surety upon her notarial bond to recover damages alleged to have been suffered through the making of a false certificate of acknowledgment. A demurrer to the second amended complaint, filed by the surety, was sustained without leave to amend and from a judgment which followed in favor of the surety, this appeal is taken. The complaint alleges that the pla...
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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 327 This is an action for damages for fraudulent representations in the sale of real estate. The plaintiffs exchanged certain real property owned by the defendants Jones, the defendant Stockwell acting as the agent of both parties and also acting as escrow-ho...
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This action was brought by appellant D.B. Rose, Inc., a corporation, as assignee of Canavan Motors Corporation, against Hodge Transportation System, a corporation and a creditors' committee (not necessary to name). F.M. Hodge was made a defendant also, and a large number of creditors of the Hodge Transportation System, a corporation, were also made defendants. The amended and supplemental complain...
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The appellant was charged in the information with the crime of murder and convicted of manslaughter. He appeals from the judgment and order denying his motion for a new trial. At the trial the appellant relied on the plea of self-defense. There is no question on this appeal, and there could not be, as to the sufficiency of the evidence to support the verdict. There was testimony in the record to t...
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THE COURT. An interlocutory decree of divorce was granted to Sophia Willen (sometimes known as Sophie Willen) upon her cross-complaint against respondent Samuel Willen on the ground of extreme cruelty. Appellant was awarded the sum of $40 per month for the support of herself and children of the marriage. Respondent was receiving certain disability benefits amounting to $150 each month from two ins...
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Heretofore the plaintiff and and defendant were partners; an application to dissolve the partnership was presented to the court and a receiver was appointed; after the appointment of the receiver, the plaintiff, who had theretofore been the managing partner, was named as manager under the receiver; while so acting she suffered personal injuries caused by the defendant and commenced an action to re...
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From a judgment in favor of plaintiff, defendant appeals. The accident, which is the basis of the action, occurred at the intersection of Union Street and Venice Boulevard in the city of Los Angeles. Plaintiff Bell, with plaintiff Smith as a passenger, was driving his automobile south upon Union Street, while defendant was driving in an easterly direction on Venice Boulevard. The two streets do no...
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The defendant was charged with a violation of the Narcotic and Drug Act (see Deering's Supp. to Codes Gen. Laws, 1929, p. 3542), and also with a prior conviction of burglary. He admitted the prior conviction, but entered a plea of not guilty to the charge of violating the Narcotic and Drug Act. He was found *Page 363 guilty and sentenced. He appeals from the judgment and order denying his motion...
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Claiming to be a creditor of the respondent corporation, appellant sought by this suit to enjoin the execution of a money judgment theretofore obtained against said corporation by the respondent Turner. The trial court sustained a demurrer to the complaint and dissolved a restraining order previously issued. Appellant declined to amend the complaint, and judgment was entered in favor of respondent...
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The petitioner and contestant were husband and wife and Bernice Louise Smith, the minor, who was eight years of age at the time of the trial, had lived with them since she was about two weeks old. However, she had not been legally adopted. At or about the same time that a complaint for divorce was filed, Mrs. Emme filed her petition to be appointed guardian of the estate and person of the minor, t...
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The record in this cause shows that the above-named Roy Rodgers, a person having suffered three prior convictions for felonies, was on the twenty-first day of June, 1928, found guilty of violating section 2 of chapter 339 of the Statutes of 1923, for which offense he was sentenced *Page 371 to the state prison at Folsom. Thereafter, and on the second day of September, 1931, the state board of pri...
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The recordin this cause shows that the above-named Roy Rodgers, a person having suffered three prior convictions for felonies, was on the twenty-first day of June, 1928, found guilty of violating section 2 of chapter 339 of the Statutes of 1923, for which offense he was sentenced *371to the state prison at Folsom. Thereafter, and on the second day of September, 1931, the state board of prison term...
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Plaintiff brought this action seeking rescission of a contract to purchase real estate and the return of money paid thereunder. The cause was tried by the court sitting without a jury and from a judgment in favor of plaintiff, defendant appeals. The property was located in the city of Burbank and was known as lot 14 in tract No. 9748, as shown on the official map of said tract recorded in the offi...
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This is a proceeding for declaratory relief. Plaintiff had judgment and the defendant Los Feliz Investment Co., Ltd., appeals upon a typewritten transcript. The controversy arises out of a transaction for the sale of oil properties located in the Santa Fe Springs district. On March 1, 1929, the Los Feliz Investment Company, Ltd., sold the property to C.G. Willis for the full sum of $1,000,000, $12...
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This causeis before us upon an appeal from an order of the trial court dated July 22, 1929, filed nunc pro tunc as of May 2, 1929, denying a petition theretofore filed by the appellant on the ninth day of February, 1927, praying that an order be made modifying a decree adjudging water rights and providing for the division of certain waters, dated July 29, 1929, as amended by an order...
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The plaintiff prosecutes this appeal from a judgment rendered against her in an action for personal injuries resulting from an automobile accident. The material facts adduced by respondent and which in opposition to the claim of appellant he now asserts support the verdict of the jury, are as follows: The appellant was accompanying respondent and a Mrs. Shoemaker, on a weekend trip to California H...
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The plaintiff had judgment in an action to abate a nuisance, from which judgment the defendant appeals. The nuisance complained of consisted in the operation of a dairy, breeding and propagating dairy cattle and maintaining hogs in a pen on appellant's property in front of and just across the public highway from the respondent's dwelling-house. The record shows that the appellant and respondent ea...
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Appellant instituted her action in the court below seeking to enforce an alleged trust in all of the property of the estate of Marie Lagier, deceased, of which estate the Security Trust Savings Bank is executor. The respondents, Sarilda Peebles, Louise Baille, Desire Guillemer and Emmanuel Guillemer were the legatees under a will of Marie Lagier which was admitted to probate. Appellant and Marie ...
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THE COURT. An action to quiet plaintiff's alleged title to certain real property described in the complaint as lot 24 in block 131 according to that certain map entitled Resubdivision of Block 131, as per Keller Berger's Map of Oakland, Alameda County, California, filed February 27, 1890, in the office of the county recorder of Alameda county. The action was against M.L. Emerson as trustee under t...
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Heretofore the petitioners were employed as probationary teachers by the Board of Trustees of the Pittsburg School District. Prior to the tenth day of June, 1931, the clerk of the district deposited in the *Page 420 mails of the United States written communications directed to the petitioners advising the petitioners that their services would not be needed during the ensuing year. Said letters we...
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The plaintiff is a corporation engaged in operating a ranch near the city of Los Angeles *Page 424 and is primarily engaged in feeding hogs. Heretofore the defendants were awarded a contract to remove garbage from that portion of the city of Los Angeles designated as the Eagle Rock District and the Lankershim District. After obtaining that contract the defendants and the plaintiff entered into a ...
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The defendant was convicted of a felony, to wit, violation of section 538 of the Penal Code, in that, on or about the thirtieth day of May, 1931, in the county of Merced, the defendant executed and delivered a mortgage upon certain personal property, to wit, Caterpillar-30 tractor No. -5940, of the alleged value of more than $200, upon which property there was, at the time of the execution of the ...
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The action was brought upon an account stated. Defendant denied specifically the allegations of the complaint and in addition to his denials set up other grounds of defense, not necessary to detail. The court below found that the allegations of the complaint to the effect that defendants were indebted upon an account stated were untrue and expressly declined to make any further findings of fact. I...
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This is an appeal from a judgment in favor of respondent for $63,000. Plaintiff's claim is predicated on a charge of usury. The facts, as appear from the complaint and from the transcript of the evidence in the case, are as follows: Respondent and appellant were, and for a number of years had been, friends. Respondent lost his wife in December, 1925, and was in financial straits. This was known to...
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This is an appeal by defendants from a judgment entered against them, respondent having sustained personal injuries in a collision with an automobile, *Page 451 owned by appellant O'Neill, and driven at the time of the accident by appellant Webb. The accident, concerned in this action, occurred in the city of Los Angeles upon Washington Boulevard. At the place where the accident occurred there is...
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The action involved here was filed by the petitioner as plaintiff against Clifford F. Reid, Inc., a corporation, and J.P. Treleven, defendants, in the Superior Court in and for the County of Los Angeles. The complaint was in two counts, the first count setting up a cause of action based upon fraud alleged to have been *Page 454 practiced upon plaintiff by defendants in the procuring from her of a...
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This is an appeal from a money judgment for the contract price of gasoline. The plaintiff claims the gasoline was purchased pursuant to the terms of a written agreement which was executed by the respective parties February 24, 1928. On the contrary, the defendants contend the gasoline was purchased under the terms of a previous oral agreement which entitled them to a discount of six cents a gallon...
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As faras are pertinent to the conclusion reached herein, the facts appear to be that by the terms of an executed written instrument plaintiff leased to defendant and defendant hired from plaintiff for a term of years a portion of a building owned by plaintiff “for the purpose of conducting and carrying on the business of dealing in new and used cars and service same1 ’. At the time the lease was ...
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The appealherein is taken under what is known as the “alternative method”, as provided by section 953a et seq. of the Code of Civil Procedure. No attempt is made by appellants to comply with that part of Rule VIII of “Rules for the Supreme Court and District Courts of Appeal”, which provides that: “The briefs must present each point separately, under an appropriate heading, showing the nature...
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The petitioner herein is the owner of a tract of land comprising some 5,000 acres of land situate within the exterior boundaries of the Madera Irrigation District in Madera County. At the time the proceedings were being taken and had for the organization of the Madera Irrigation District, petitioner filed a protest against the organization of the district, and also a petition for the exclusion of ...
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On this appeal neither the city prosecutor of the city of Los Angeles nor any other attorney qualified to represent the respondents herein has seen fit to file a brief on behalf of the respondents. The facts appear to be that following the conviction of a defendant in a criminal action in the municipal court judgment was rendered to the effect that she pay a fine of $500, or that she serve fifty d...
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The defendants had judgment in the court below and plaintiff appeals therefrom. Plaintiff, the owner of a so-called service station, leased the same, together with equipment, to defendants Merrill and Jessup for a term of years. The lessees at the time of the execution of the lease deposited with the lessor a sum equal to the rent for the last three and one-half months of the lease. Among other pr...
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Petitioner seeks his release on habeas corpus on the ground that he is unlawfully imprisoned by the sheriff of Fresno County. The facts may be briefly stated as follows: On April 20, 1931, in an action then pending in the Superior Court of Fresno County, one W.H.A. Truxaw was appointed receiver and placed in possession of certain real property involved in that action. On December 18, 1931, while s...
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The action is one brought by respondent Anderson, as administrator with the will annexed of the estate of John Quincy Wrenn against Maryland Casualty Company and Joseph T. Wrenn to recover on three surety bonds, wherein the said Casualty Company was the surety and Joseph T. Wrenn was principal. There are three separate undertakings, each given pursuant to the requirements of section 1389 of the Co...
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Plaintiffs brought this action to quiet title to a quartz mining claim known as the "Never Sweat Quartz Mine" in Calaveras County. Defendants answered and also filed a cross-complaint to quiet title to certain lands patented to the defendant Luddy by the United States government as a stock-raising homestead. The mining claim was located on the public domain in 1896 by plaintiffs' predecessors in i...
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The plaintiffbegan this action to obtain judgment against the defendants in the sum of $900, for and on account of expenses incurred in packing lettuce in the county of Sacramento, for and on behalf of the defendants, and shipped to the defendants at their place of business in the city of Chicago; and also for the further sum of $1155 upon an assigned claim of one K. Tomita, for the value of lett...
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This is an action in eminent domain by which plaintiff sought to condemn twelve parcels of land, the properties of various defendants. Plaintiff is a mutual water company engaged in the business of supplying water to the lands of its stockholders for irrigation purposes and to the inhabitants of the city of Corona for domestic use. At the time the action was instituted, plaintiff was engaged in th...
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The petitioner instituted an original proceeding in this court seeking to prohibit the respondent court and judge from taking any further proceedings in the case of Doolittle v. Schaffneret al., bearing number 47505 in the records of the county clerk of Fresno County, alleging the respondents had no jurisdiction to enter an order hereinafter set forth. Respondents filed a general demurrer and answ...
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THE COURT. As the result of negotiations which commenced in February, 1926, plaintiffs in April of the same year purchased from defendants a lot fronting on Washington Street in San Francisco upon which was situated a three-story frame building containing fifteen two-room apartments, and paid therefor the sum of $55,000. Previous to the transfer to plaintiffs the premises had been leased by defend...
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At the time of filing the amended complaint in this action (March 31, 1928), the defendant William Diller was a stockholder and director of plaintiff corporation, and also was a creditor of plaintiff. As such creditor he held several notes of the corporation, some of which were secured by mortgage and others were unsecured. Although Elizabeth Diller is named as a defendant, she had no part in the ...
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Upon a charge of having caused the death of another with a pistol, the appellant was found guilty by a jury of manslaughter, a felony, a lesser offense necessarily included in the charge set out in the information. [1] The ground assigned for reversal consists of asserted error upon the part of the trial court in refusing to grant the defendant permission to file an application for probation and i...
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The plaintiff began this action to obtain a judgment setting aside and declaring void the sale of a certain note and mortgage, and to obtain damages. To this complaint the demurrer of the defendants was sustained, with leave to the plaintiff to amend. The plaintiff having, in writing, declined to amend, judgment was entered in favor of the demurring defendants. From this judgment the plaintiff app...
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This is an action to recover damages for personal injuries sustained by plaintiff arising out of a collision which occurred on July 5, 1927, between an automobile driven by defendant and plaintiff, who was a pedestrian. A jury returned a verdict for the plaintiff and the defendant appeals from the judgment entered thereon and from an order denying his motion for a new trial. The complaint alleged ...
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These actions to foreclose materialmen's liens were consolidated for trial and from the judgment entered therein the defendant Frances Nusewander has appealed. There is no dispute about the facts, and the sole question of law involved is whether, as the trial court held, the liens of the materialmen were superior to a portion of the mortgage lien held by the defendant Frances Nusewander. According...
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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 578 This is an appeal from a judgment which was rendered in favor of the defendants in an action instituted to declare a trust in a joint savings bank account which was deposited by Mary Elizabeth Woolsey, during her lifetime, to the credit of herself and her...
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This action was for declaratory relief and an injunction. Inasmuch as the claims of plaintiff, if established, could be fully settled by the payment of money, stipulations were entered into and approved, the effect of which was to obviate the necessity of injunctive relief. The rights which plaintiff sought to have adjudicated involved the question of lien priority as between herself and the vario...
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This is an original petition filed in this court praying for a writ of mandate requiring respondents to *Page 608 set for trial an action pending in the Superior Court of Tulare County wherein the petitioner here and the plaintiff there is seeking, under the right of eminent domain, to condemn the right to take water from within the boundaries of the Consolidated Peoples Ditch Company to lands ly...
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Plaintiff sued for damages for the death of his minor son, a child nine years of age. The jury returned a verdict for defendant and plaintiff appeals on typewritten transcripts. The child was standing at the curb in front of plaintiff's automobile which was parked at the easterly curb of Bayshore Boulevard, about 160 feet south of Thornton Avenue. Defendant was operating a Chevrolet sedan southerl...
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This is an action brought to foreclose a mechanic's lien. While the action was pending, the real property sought to be charged with the lien was sold under a prior trust deed. A supplemental complaint was thereupon filed, seeking to impress a lien upon the surplus from said sale remaining in the hands of defendant Bank of America of California. A personal judgment was rendered against the owners o...
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This is an action to recover a share of commissions from a real estate transaction. Judgment *Page 631 in the sum of $5,812 was rendered for plaintiffs. The appeal is from the judgment. One S.A. Kenoyer was the owner of a hotel in Oklahoma. He was the client of respondents, who were licensed real estate brokers. Appellant was also a licensed real estate broker, representing Joseph Schenck, who wa...
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The respondent's intestate was injured while performing the duties of a brakeman upon a freight train operated by the appellant, in Los Angeles County, as a result of which he lost his life. In an action instituted under the federal Employers' Liability Act by said representative, judgment was rendered upon the verdict of a jury, from which judgment the employer appealed. During a dark, rainy morn...
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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 641 THE COURT. An appeal from a judgment in favor of plaintiff in an action to set aside a transfer by defendant Robert Salzberger of his undivided one-fourth interest in the estate of Julius Salzberger, deceased, to defendant Sophia Salzberger. On October 19...
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From a judgment awarding the plaintiff damages in the sum of $7,500 for injuries sustained in a street-car accident the defendants have appealed. They contend (1) the verdict and judgment are excessive and wholly unsupported by the evidence; (2) counsel for plaintiff *Page 649 was guilty of prejudicial misconduct in his argument to the jury; (3) the court erred in its instructions to the jury; an...
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This action was instituted by the sellers to compel specific performance of a contract to purchase certain real property. It was thereafter dismissed as to the defendant bank, which was the escrow-holder. From a judgment in favor of plaintiffs and against defendants C.J. Roberts and C.A. Draper, said defendants appeal. Escrow instructions were signed by plaintiffs and defendant C.J. Roberts on Mar...
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The plaintiff commenced an action against the defendant municipal corporation, the members of the city council and the chief of police, to obtain a judgment enjoining the defendants from enforcing against him the provisions of a certain ordinance on the ground as he claimed, that the ordinance was unreasonable and violated provisions of the state Constitution and the Fourteenth Amendment of the fe...
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THE COURT. This is a petition for a writ of prohibition. The principal contention of respondents seems to be that the record made is insufficient to support the proceeding. To some extent this contention has merit. However, by a somewhat equivocal return to the alternative writ and more expressly at the hearing upon said return, the facts were agreed upon and the record supplemented sufficient to ...
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Plaintiffs sued for damages for personal injuries to Louise Rohner. The jury returned a verdict for plaintiffs in the sum of $5,416 and the defendants appeal upon typewritten transcripts. The injuries resulted from a collision of an automobile driven by Louise Rohner with one driven by defendant Helen Cross at a street intersection in the city of Palo Alto. The Rohner car was struck on the left re...
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Plaintiff and appellant brought an action against Henry Porter and Louis Graham, the executors of the estate of Bettie Johnson, deceased, to quiet title to certain real property situated in the city of Los Angeles, California. Henry Porter died pending the trial, and Louis Graham is the surviving executor and respondent herein. The amended complaint was in the usual form of such action. The answer...
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The material facts leading up to this appeal are briefly: Robert J. Heustis and Anna *Page 677 Heustis, defendant and appellant herein, were married in the year 1919. This marriage has never been dissolved. In the month of August, 1928, the appellant, Anna Heustis, brought an action against Robert J. Heustis in the Superior Court of San Diego County, and obtained a judgment against him for her su...
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This is an appeal by defendant from a judgment in favor of plaintiff in the sum of $2,402.87. We need only consider the count of the complaint alleging the indebtedness of defendant upon an open book account for goods sold and delivered to defendant by plaintiff's assignors. By way of defense defendant pleaded the statute of limitations. Upon the trial defendant further urged the defense of accord...
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The estate of the deceased inventoried at a little over $4,000. Appellant filed a claim, evidenced by a promissory note signed by the deceased, in the sum of $15,000, which claim was allowed. Thereafter United States National Bank, payee of the said note and appellant herein, brought an action upon the note against Mary E. Connell, who also happens to be the administratrix of the estate herein, as...
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Plaintiff had judgment against the defendant in the sum of $430. From this judgment the defendant appeals. Three hundred and thirty dollars of said judgment represents the value of certain sows taken by the defendant, found by the court to belong to the plaintiff, and $100 of said judgment represents the damages caused the plaintiff by the act of the defendant just stated. The record in this ...
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The petitioner was convicted of vagrancy December 22, 1931, in the Justice's Court of Township Number Two, Merced County. He was sentenced to six months' imprisonment in the county jail. His sentence was suspended and he was thereupon released on probation on condition that he would leave Merced. He failed to do so. Without warrant or formal charge of violating his parole, he was re-arrested Decem...
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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 721 This is an action by plaintiff to recover damages for personal injuries sustained by him. Plaintiff's complaint set out a cause of action against the following defendants: Sun-Maid Raisin Growers Association, a corporation, Sun-Maid Raisin Growers of Cali...
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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 732 These two actions were brought by Harry Siskin, doing business as the Angeles Furniture Manufacturing Company, to recover the possession of certain furniture in the possession of defendant Dembroff in the one case, and certain other furniture in the posse...
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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 748 This is an action to quiet title. It was filed by respondents on June 20, 1929. Appellants asserted and defended upon the grounds of an interest in and the right to the possession of the property in question under a contract of purchase and sale made with...
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THE COURT. This is an appeal from a judgment entered upon a verdict against defendants and in favor of plaintiff. The action was for damages alleged to have been sustained by plaintiff while a passenger in a jitney bus, operated by defendant Larussa, which came into collision with a truck operated by the City and County of San Francisco. The municipality claims that the implied finding that its em...
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MEMORANDUM CASE. This is a companion case to Campbell v. Title Guarantee Trust Co. (No. 8218), ante, p. 374, [9 P.2d 264], the opinion in which has been this day filed. This action was instituted by plaintiff to quiet title. By way of defense defendant alleged in her amended answer the same facts which she set forth in her amended complaint for rescission in the other actio...
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