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All Reporters → cal-app-2d → Volume 122
Opinions in cal-app-2d Volume 122
The within appeal is taken from a judgment in favor of the respondent executrix, for refund of state income taxes, paid under protest, for the years 1938, 1939, 1940 and 1941. The case involves two different claims for refund, namely, credit on the California tax of a 5 per cent Canadian income tax on dividends paid by a Canadian corporation which neither did business in, nor had an office or age...
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The parties to this action are brothers. The plaintiff, William, alleges in his complaint that he is the owner and entitled to possession of a parcel of realty in Los Angeles; that defendant wrongfully entered and ousted him, took possession of the property and asserts an adverse interest therein which claim is without right.
*8
By his answer, defendant alleges sole ownership of t...
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In an information filed by the district attorney of Los Angeles County, defendant was charged in count I with the crime of burglary and in count II with the offense of forgery. He entered a plea of not guilty to both offenses charged against him. At the request of defendant the public defender was appointed as his counsel. Subsequently, defendant, with leave of court, withdrew his plea of not gui...
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Appeal by defendant from an adverse judgment in an action to recover sums deposited with defendant bank and paid out in the cashing of cheeks on forged endorsements.
Plaintiff, an automobile dealer, maintained two accounts with defendant bank and one with a Bellflower bank. In the ordinary course of business, checks received were endorsed with a stamp bearing plaintiff’s name for deposit o...
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On May 26, 1947, the defendant leased 71 acres of land in the “Pauma Rancho” to the plaintiffs for two years, with an option to buy. The agreement provided for a rental of $15,000 payable in advance and $15,000 payable on December 1,1948, with an option to purchase the property prior to May 31, 1949, by paying an additional $5,000 and giving a note and trust deed for $35,000. It was agreed that t...
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On February 6, 1951, plaintiff and cross-defendant, hereinafter referred to as plaintiff, brought an action against defendant and cross-complainant (referred to as defendant) for separate maintenance, alleging extreme cruelty. Defendant, on March 6, 1951, filed a cross-complaint *37for divorce alleging cruelty. On September 15, 1952, he filed a supplemental cross-complaint, alleging that on Januar...
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William H. Kelley and Jessie B. Kelley married in 1899. They lived together as husband and wife for more than 50 years. Mr. Kelley died March 16, 1951; Mrs. Kelley died February 9, 1952. They came to California from Indiana in 1930, and lived in Glendale for the rest of their lives. By his will Mr. Kelley directed that all of his property, after payment of his debts, be distributed to a testamenta...
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Appeal by plaintiff from an adverse judgment in an action for damages for breach of an agreement of partnership, and for rescission of an agreement dissolving the partnership on the grounds of fraud and mistake. The court found there was no breach of the agreement, and no fraud or mistake. The evidence and the reasonable inferences therefrom will be stated in the light most favorable to defenda...
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Appeal by defendants from an order granting a new trial in an action for damages for personal injuries. The cause was tried by a jury with the verdict for defend *56 ants. The order granted a new trial to “Martin Greenman as Guardian Ad Litem of Benita Greenman only.” It did not specify that the motion was granted on the ground of the-insufficiency of the evidence to sustain the verdict, or t...
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Defendants were charged with violating subdivision 1 of section 337a of the Penal Code (bookmaking) and subdivision 3 of said section (receiving money as a wager on a horse race). In Count I it was charged that Tony F. Ungaro violated subdivision 1 on December 10, 1952. • In Count II it was charged that he violated subdivision 3 on said date. In Count III it was charged that Tony and Michael M. Un...
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This is an appeal from a judgment enjoining and restraining defendants and appellants from enforcing the provisions of an order of the' Director of Agriculture, purportedly issued by authority of the California Marketing Act of 1937, which attempted to prohibit the canning of Saint Agostino olives smaller in size than “Mammoth,” as that size is defined in section 870 of the Agricultural Code. F...
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This is an action to quiet title to an easement over defendants’ property for a
%
inch pipeline, together with the incidental right to enter and maintain the flow of water through said pipeline.
Plaintiffs also claimed damages incurred as a result of defendants’ action in shutting off the water and thereby depriving plaintiffs of household water and for loss of a sale of their p...
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This is an appeal from a judgment for $10,000 awarded to respondent (plaintiff below) as special administrator of the Estate of Louis Valdez Bravo in a wrongful death action brought on behalf of the decedent’s widow and children.
On July 1, 1950, Bravo was riding on the bed of a truck owned and being driven by appellant Galindo. Bravo was then a business invitee of appellant. The truck bed...
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Defendant Robertson Truck-A-Way, hereinafter referred to as “Robertson,” was a common carrier by motor vehicle licensed under the Interstate Commerce Act, and was engaged in the transportation of motor vehicles *83 by means of trucks and trailers or semitrailers. Defendants Harmon and Delaney, hereinafter referred to as “defendants,” were the owners of a three-ton Dodge tractor. By an agreement...
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Appellants Reynoso and Martinez and Luis Romero and Antonio Segura were charged with the crime of robbery. Romero pleaded guilty but Segura and appellants entered pleas of not guilty, and, following a trial before a jury, all three were found guilty of robbery in the second degree. Reynoso and Martinez made a motion for a new trial which was denied, and they have appealed from the judgment entered...
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These are reciprocal divorce actions in which the husband appeals from the adverse judgment in the main action (15445) and from an order awarding the wife fees and costs to oppose his appeal (15444). The husband’s attorney, A. Don Duncan, intervened in the main divorce action to protect his assigned one-third interest in a fund deposited in court in the name of the husband in another action but...
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By stipulation of the parties the above causes are consolidated for hearing and by stipulation are submitted for decision without oral argument. The two appeals are based upon the same grounds—that the trial court abused its discretion in denying appellants relief from their default in failing to file amended complaints within the statu*105tory time, in sustaining defendants’ demurrers to the seco...
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Appellant was employed by respondent city as a member of its Fire Department July 16,1941. While discharging his duties as fireman on September 3, 1950, he
*107
was so affected by poisonous fumes that he became ill and contracted “chronic severe bronchitis.” His condition deteriorated until December 3, 1951, when it was determined to be dangerous for him to continue as a fireman. D...
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On November 10, 1949, respondent, Viola R. Karlein, filed a complaint for divorce against defendant, Ludwig Karlein, in which she alleged that the family residence on Lot 59 owned by them in joint tenancy was community property. A default judgment having been entered January 12,1950, was subsequently set aside on motion of the husband. While the divorce action was still pending, the husband quit-...
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Cross-appeals from particular parts of an interlocutory judgment of divorce. Plaintiff was awarded the divorce without contest. The controversy was with respect to the disposition of property.
Plaintiff appeals from those parts of the judgment which: 1. awards a half interest in certain real property to her; 2. decrees that certain property is the separate property of defendant; 3. orders ...
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Plaintiff appeals from a judgment entered upon a verdict in the sum of $700 as damages for injuries suffered in an automobile accident. She was a passenger in a car driven by John M. Teyshak, with the consent of the owner, John E. Haworth. The car collided with one driven by Cecelia Wekerle, which belonged to John A. Viseóme, and was being driven with his consent. She sued the four named persons;...
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Plaintiffs appeal from an adverse judgment entered on a verdict of a jury in an action for damages for personal injuries arising out of a collision between three automobiles. Plaintiffs’ contentions are that defendants were guilty of negligence as a matter of law, and that the negligence of each was a proximate cause of the accident. On May 11, 1951, plaintiff, Margie Shuberg, referred to as plain...
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122 Cal.App.2d 147 (1953)
Estate of WILLIAM H. CUTLER, Deceased. ROBERT C. KIRKWOOD, as Controller, Appellant,
v.
GEORGE L. WHITE, as Executor, etc., Respondent.
Civ. No. 19795.
California Court of Appeals. Second Dist., Div. Three.
Dec. 18, 1953.
James W. Hickey, Walter H. Miller and Arthur K. Marshall for Appellant.
Catlin & Catlin, Frank D. Catlin, Henry W. Catlin, George L. Catlin an...
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Appeal from an order fixing the inheritance tax. The matter was submitted to the probate court on a stipulation of facts.
Decedent died May 21, 1951, a resident of California. On April 2, 1932, Newton Trust Company, since 1947 known as Newton-Waltham Bank and Trust Company, a Massachusetts banking corporation, referred to as Newton, executed a declaration of trust by which it agreed to accept and ...
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On July 14, 1951, about 5 a. m., Albert J. Shiya was driving his ear (a 1939 Pontiac sedan in which was seated as a guest Victoria Zieda) west on Orangethorpe Avenue, near Buena Park. Defendant Robert Hendrix was driving north on Walker Avenue, an intersecting street (in a 1950 Dodge convertible coupé automobile belonging to defendant Odis Reviea). Orangethorpe Avenue was a through highway, pro...
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This is an appeal from the judgment. Plaintiff’s assignor is an attorney and the action herein is for attorneys' fees. Plaintiff was awarded $2,473.75. Plaintiff’s appeal is based “upon three specific points, to-wit: First, the finding by the trial court that only five and three-fourths (5%) hours were reasonably required by plaintiff’s assignor in traveling to and from, and rendering legal servic...
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122 Cal.App.2d 167 (1953)
Estate of HENRIETTA MORAN, Deceased. SECURITY-FIRST NATIONAL BANK OF LOS ANGELES, as Executor, etc., et al., Respondents,
v.
LILLIAN WAGNER et al., Appellants.
Civ. No. 19844.
California Court of Appeals. Second Dist., Div. One.
Dec. 21, 1953.
Louis Thomsen for Appellants.
W. R. Hervey, Jr., for Respondents.
WHITE, P. J.
More than 30 days but less than six months ...
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More than 30 days but less than six months prior to her death Henrietta Moran executed a holographic will whereby, after a specific bequest of jewelry to Nancy Stromstaedt, she left the “balance” of her estate to the respondents Bensenville Home Society and The Angel Guardian Catholic Orphan Society of Chicago, both charitable institutions in the State of Illinois. Pursuant to directions in the wi...
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In an amended information filed by the district attorney of Ventura County defendant was charged in Count I with the crime of conspiracy to solicit for a prostitute and in Count II with the offense of soliciting for a prostitute. Following the entry of not guilty pleas as to both counts, the cause proceeded to trial before a jury which returned verdicts finding defendant guilty on both counts. ...
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This is an appeal from the judgment and order denying a motion for a new trial. Defendants were charged by information with robbery, kidnapping and grand theft. Prior conviction of a felony as to each was also alleged. A jury was waived. Defendants were adjudged guilty on all three counts. The allegations of prior conviction were found to be true. A motion for a new trial was denied. Probation ...
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Appeal from an order granting plaintiffs’
motion for a new trial in an action for damages allegedly arising out of injuries suffered by defendant’s guests who were riding in her automobile. The order was based upon the grounds that the evidence was insufficient to justify the verdict and that it is against law.**
The accident occurred in Arizona in September, 1951. The road on which the motorist a...
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Page 192
Petitioner was convicted in Los Angeles County in October, 1951, of a felony, to wit, violation of the Health and Safety Code, section 11715. The crime was eom*193mitted in June, 1945, but prosecution was not barred by reason of defendant’s extended absence from the state at the times alleged. Defendant (petitioner herein) appealed after he had been duly sentenced to prison. The judgment of convic...
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By the judgment in this action it was declared that defendants Max Radis, Jean Radis, Martin Goldman and Sylvia Goldman, should credit $3,824 and interest upon the principal of a trust deed note of $65,500, executed by plaintiff's predecessors, Isadore Rosenblot and Dora Rosenblot, in favor of said defendants. The credit was to be made by defendants within 10 days, or in case of default, by a c...
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Defendant was charged with the crime of rape committed with force and violence. Trial by jury was waived. He was adjudged guilty of “Assault with Intent to Commit Rape, a felony, a lesser offense than that charged in the information but necessarily included therein.” He was sentenced to imprisonment in the state prison. He appeals from the order denying his motion for a new trial. Defendant con...
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On a hearing upon petition for settlement of the final account of the administratrix, Rowena Heusner, one of the heirs of the decedent, filed her objections to the allowance of a creditor’s claim on the ground that the
*217
claim had not been filed within six months after publication of notice to creditors. The claim had been approved by the administratrix and by the probate court....
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This is an appeal from an order denying two motions to fix and award reasonable attorneys’ fees to plaintiffs’ counsel and to order such fees paid out of the assets in the hands of respondent Superintendent of Banks (hereinafter called the superintendent) which are available for the payment of interest upon the approved claims of depositors or creditors of The Yokohama Specie Bank, Ltd. (hereinaft...
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By the instant proceeding in mandamus, petitioners sought from the superior court an order compelling the county clerk of Los Angeles County to issue to them a license to marry and a certificate of registry of mar
*230
riage, pursuant to section 69 and 69a of the Civil Code, respectively.
When petitioners applied for the license to marry, they declined to state their color or ...
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Defendant Massie was convicted by a jury of the crime denounced by section 288a of the Penal Code. He appeals from the judgment sending him to state prison. He contends that the evidence was insufficient to support the verdict, and that the verdict was inconsistent and erroneous. Police officers who arrested said defendant and a male companion testified that they actually saw defendant commit t...
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A demurrer to the complaint was sustained without leave to amend. Plaintiffs appeal from the ensuing judgment.
*238
The plaintiffs are a voluntary, unincorporated employers’ association, and certain of its members, who are engaged in the production, sale and distribution of pies (and other bakery products) in Los Angeles and vicinity. They employ drivers who use . company equipmen...
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Defendant was charged in an indictment with grand theft. In one count is is charged that on November 21, 1951, he took more than $200 from Clemens Hinke, and in another count that on November 23, 1951, he took more than $200 from Mrs. Esther J. Evenson. The charges and conviction on each count were based upon claimed false representations made in the sale of stamp-vending machines as a business...
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This case presents another chapter in the turbulent legal history of the historic old Rancho Topanga Malibu Sequit. This rancho lies north and west of Santa Monica, in southern California. Originally it contained over 13,000 acres of land, and fronted 22 miles along the Pacific Ocean. Frederick Hastings Rindge acquired the rancho in 1890. Upon his death in 1905, his widow succeeded to the owner...
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Petitioner was charged with manslaughter and the crime of violating section 480 of the Penal Code. The complaint duly charged that defendant, “while engaged in the driving of a vehicle in the commission of a unlawful act not amounting to a felony, with gross negligence, and while in the commission of a lawful act which might produce death, in an unlawful manner, with gross negligence, kill Robert ...
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Plaintiffs, Walter and Adelaide Barkett, former tenants of Raffaela Brncato, brought this action against the landlord and others for damages for a constructive eviction in violation of the implied covenant of quiet enjoyment, for negligence, for a conspiracy to willfully and maliciously harass the plaintiffs, and for punitive damages. The jury exonerated all defendants with the exception of def...
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Defendant was charged with (count I) violation of section 211, Penal Code, robbery, and (count II) violation of section 217, Penal Code, assault with intent to commit murder. A jury found him guilty of the robbery charge, determined to be first degree, and of assault with a deadly weapon, an offense included within the count II charge. Defendant appeals from the judgment of conviction and from an...
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Plaintiff, who obtained a judgment for damages for personal injuries, appeals from an order granting defendant’s motion for a new trial. The motion was granted upon the ground that an erroneous instruction was given. On March 31, 1951, between 6:30 p. m. and 7 p. m., plaintiff was operating a motorcycle in an easterly direction on First Street in Los Angeles. Defendant, who had been driving an aut...
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Francis Ravel appeals from a judgment convicting him of two offenses of grant theft, and from an order denying motion for new trial. He was denied probation and sentenced to state prison.
The case was tried without a jury on the testimony received at the preliminary examination and additional testimony given by defendant and his witnesses upon the trial. Included also were exhibits consisting of b...
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This proceeding involves (1) the jurisdiction, if any, of a municipal court to allow an amendment of a complaint which increases the amount of the demand beyond the $3,000 jurisdictional limit of that court, (2) the validity of the judgment rendered by the superior court, or of its appellate department, annulling, upon writ of review, the municipal court order which allowed the amendment, and (...
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Defendant was charged with burglary, and with a prior 1938 burglary conviction. At the trial he admitted the prior burglary charge, and also admitted that in 1945 he had been convicted of, and served a term for, a felony under the Deadly Weapons Act. At the trial, although offered the services of the public defender, defendant insisted on representing himself, but the trial court directed the pub...
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The appellants suffered personal injuries when a bus in which they were riding as passengers for hire collided with one of respondent’s trains at a street intersection in the city of Stockton. Their several actions against the driver and the owner of the bus and against the respondent, Southern Pacific Company, were consolidated for trial. The jury returned verdicts in favor of appellants and agai...
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Plaintiffs have appealed from a judgment in favor of defendants Conway and Culligan Development Company, a corporation, and Andrew Conway and Thomas J. Culligan, individually and as copartners doing business under the name of Conway and Culligan. 1 The judgment was rendered upon the sustaining of these defendants’ general demurrer to plaintiffs’ second amended complaint, without leave to amend....
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This appeal was taken from a judgment in favor of Katherine Hagy for $25,000, and her husband Russell Hagy for $5,000, after a new trial was denied.
Appellant Allied Chemical & Dye Corporation owns and operates a plant in Richmond, California, wherein it manufactures sulphuric acid. Appellants Compton and Hicken were joined as its employees.
*363
Respondents sued for personal...
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In April, 1951, plaintiff brought an action for damages against Austin Trailer Equipment Company, a Michigan corporation (hereinafter referred to as Austin), and Callahan Engineering Company, a copartnership, alleging a sale by defendants of a defective Austin “fifth wheel” to plaintiff in January, 1949, and that it broke on a public highway in Arizona in June, 1950, causing injury to plaintiff...
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Action for damages for personal injuries sustained as a result of slipping and falling on the floor of defendant’s bakery and restaurant in Long Beach. The jury was instructed to return a verdict for defendant. Plaintiff appeals from the judgment.
The bakery department, which is 20 feet wide, is in the front part of the building, and the restaurant is in the rear. The building (lengthwise)...
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122 Cal.App.2d 396 (1953)
J. HOWLAND PADDOCK, Respondent,
v.
LEANDRO VASQUEZ et al., Appellants.
California Court of Appeals.
Dec. 31, 1953.
Burke, Williams & Sorensen and Reynolds, Painter & Cherniss for Appellants.
John C. Gillham for Respondent.
VALLEE, J.
Plaintiff brought this action for a declaration of his rights under a mineral deed, and dependent on the determination of his ...
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This is a motion by the state to dismiss defend ant’s appeal upon the sole ground that it was not filed “within ten days after the rendition of the judgment” as provided in rule 31 of Rules on Appeal. At the outset defendant is confronted with the general rule that the time for filing notice of appeal is jurisdictional and cannot be extended by action of the parties or by order of the court. (...
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The defendant herein is appealing from a judgment in favor of plaintiff in the amount of $30,000, of which $29,400 is for loss of profits, and $600 for expenses incurred by plaintiff. In the spring of 1951, the Harvey Machine Company, appellant, entered into negotiations with officials of the Empire Steel Buildings Company, respondent, in reference to construction of a foundry building on appella...
Views: 3
122 Cal. App. 2d 417 (1954)
LOIS GWENDOLYN NETZLEY et al., Appellants,
v.
E. N. HILLSTROM et al., Respondents.
Civ. No. 4727.
California Court of Appeals. Fourth Dist.
Jan. 4, 1954.
William G. Bergman, Jr., for Appellants.
Swing & Gillespie for Respondents.
MUSSELL, J.
The complaint in this malpractice action was filed on January 26, 1948. On November 20, 1952, defendants E. N. Hillstr...
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Plaintiff brought this action to recover for services rendered to defendants in hauling tungsten ore from Fallon, Nevada, to Bishop, California. His original complaint stated a cause of action on a book account and at the
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conclusion of the presentation of plaintiff’s evidence, he was permitted to file an amended complaint to conform to the proof. In the second cause of action ...
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Petitioner, an insurance carrier, seeks the annulment of an award of the Industrial Accident Commission in which respondent Gae P. Moynahan was
*429
found to have suffered an industrial injury and was awarded compensation benefits, including self-incurred medical expenses.
According to the testimony of Mrs. Moynahan she was 39 years of age and was employed as a bookkeeper by t...
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Defendant was charged with grand theft. After trial by jury he was found guilty as charged and sentenced to prison for the term prescribed by law. He appeals from the judgment. Defendant does not deny the commission of the crime. In fact, he admitted the theft from the witness stand. His sole point on this appeal is that he should have been convicted of petty theft for the reason that the evide...
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This is an appeal from a judgment in favor of defendant entered pursuant to a directed verdict, the action being one to recover a real estate broker’s commission. The evidence presented by plaintiff is substantially the same' as that in a former trial of the action in which a jury returned a verdict in favor of plaintiff H. Frank Nelson. A new trial was granted in that action and on appeal the or...
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Defendants were charged with six counts of burglary and one count of conspiracy to commit theft. A jury found defendants Edward B. Decker and Cecil E. Cooper guilty of counts I, II, VI and VII and not guilty as to counts III, IV and V. Defendant Helen Decker was found not guilty on each of the seven counts and the trial court, on motion of defendants, set aside the jury’s verdict as to count VII, ...
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Plaintiffs, husband and wife, brought this action against Robert Donaldson et al., for their alleged negligence arising out of an intersection accident between two cars. Defendant Donaldson and his wife filed a cross-complaint alleging negligence of plaintiffs and prayed for damages. The controlling facts are undisputed.
The accident happened on a clear, dry day at the intersection of Alde...
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A jury convicted defendant of the crime of burglary (second degree) under Penal Code, section 459, in count one of an information charging that on November 14, 1952, he entered the home of Edward N. Petrick with the intent to commit rape. In count two he was charged and convicted of the crime of illegally administering an anaesthetic, under section 222 of the Penal Code, in that he administered e...
Views: 15
122 Cal. App. 2d 466 (1954)
VIVIANE M. FOLLANSBEE, Individually and as Executrix, etc., Plaintiff and Appellant,
v.
PHILIP G. H. BENZENBERG et al., Defendants and Appellants.
Civ. No. 19686.
California Court of Appeals. Second Dist., Div. Three.
Jan. 7, 1954.
Wellborn, Barrett & Rodi, Karl B. Rodi and Owen F. Goodman for Plaintiff and Appellant.
Bauder, Gilbert, Thompson & Kelly for ...
Views: 21
Page 480
Plaintiff brought this action for damages and an accounting of the profits of defendant’s business, and also for an amount alleged to be due him for unpaid salary and money loaned. Judgment was in favor of plaintiff for $225 and he appeals. The action was based upon an alleged breach of a contract by which defendant employed plaintiff to assist him as sales manager and assistant in the conduct ...
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Page 484
On January 7, 1952, the district attorney of Eldorado County filed an information against appellant, and against George Theodore Poulter and Roland Wayne *485Wright, charging them with escape from the state prison at Folsom (count I) and attempted robbery (count II). Appellant was also charged with four prior felony convictions, and Poulter and Wright were each also charged with prior felony convi...
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The appellant was found guilty of violating section 288a of the Penal Code, and he appeals from the judgment and an order denying his motion for a new trial. On September 20, 1952, the appellant and a woman registered at a motel near Laguna Beach and occupied a room there. The next morning the appellant took a number of pictures which clearly disclose a violation of section 288a by these partie...
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Respondent parents brought an action against their son and his wife to have a resulting trust declared in certain real and personal property and for an accounting of the profits derived from said property. The trial court found that the parents owned an undivided one-half interest in the real and personal property, ordered that an account be taken by a referee, and upon the settlement of the refe...
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— On August 30, 1945, plaintiffs, owners of real property in Indio, entered into a written lease of the premises to defendant J. F. Seawell and H. H. Snow. The lease was for five years at a monthly rental of $150, with an option to purchase as follows: “12. Lessees are hereby granted an option to purchase said real property at the expiration of said term or any renewal thereof by giving to the ...
Views: 1
Plaintiff has made a motion in this court for an order to consolidate “appeals and cross-appeal of appellant and respondent companies” from judgment and orders entered by the Superior Court in Case No. 609605. From the certificate of the clerk of the superior court, and the affidavit of plaintiff in support of the original notice of motion, the following facts have been marshaled: *510Plaintiff so...
Views: 0
This is an action for damages arising out of an automobile collision. On October 21, 1951, the plaintiff was driving on Highway 101 when a car driven by the deceased, Edwin T. Smith, entered the highway from an intersecting street. In the resulting collision Smith was killed and the plaintiff suffered injuries to both knees, a back injury, cuts on his chin, chest and head, and injury to the splee...
Views: 0
This is an action for the dissolution of a partnership, for an accounting, and for damages. The defendant appealed from an order approving a report and *517 account filed by the receiver. The plaintiff has moved to dismiss that appeal on the grounds that the defendant failed to pay the estimated costs of preparing the transcripts within the required time, and that the order appealed from is int...
Views: 1
William Ralph Payne, a partner-employee of Mary Len Mine, a copartnership, died as the result of injuries received during the course of his employment. His dependents instituted a proceeding before the Industrial Accident Commission against the employer and against the State Compensation Fund as the employer’s insurance carrier. The commission awarded them compensation to be paid by the State C...
Views: 6
Page 535
This action in declaratory relief concerns the application of a substantial advance payment of principal made on a promissory installment note nearly five years before any of the installments became due. The question of interest is not involved. The point to be decided is how this advance payment is to be applied on the principal amount. Appellant contends that it should be applied to the last ...
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This is an appeal from a judgment of the Superior Court of Alameda County in a quiet title action, decreeing that defendant and cross-complainant Huston convey two parcels of property to plaintiff and cross-defendant Leonard upon receipt of the balance of the purchase price in the amount of $13,853.32 with interest at 7 per cent from entry of judgment, and determining that Leonard as equitable ...
Views: 6
Appellant was convicted by a jury on each of five counts of perjury. The basis of the convictions was that appellant executed five affidavits, each attached to' a petition to submit a proposed amendment to the charter of the city of Santa Cruz, in each of which he falsely stated that he was the person who circulated the petition to which the affidavit was attached and that all of the signatures t...
Views: 2
122 Cal. App. 2d 555 (1954)
JOSEPH RABOFF, Respondent,
v.
CHRISTINE J. ALBERTSON, Appellant.
Civ. No. 19396.
California Court of Appeals. Second Dist., Div. Three.
Jan. 18, 1954.
Albert E. Wheatcroft and Charles Murstein for Appellant.
Paul R. Hutchinson for Respondent.
WOOD (Parker), J.
This action against a wife to recover money lent to a husband (now deceased) is based upon an oral agre...
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Appeal by plaintiff from a judgment entered on an order sustaining the demurrer of defendant Salot to a second amended complaint without leave to amend.
The only matter that may be considered is whether the second amended complaint, referred to as the complaint, states facts sufficient to constitute a cause of action.
The material allegations of the complaint are these:
1. On Jul...
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Appeals by Leslie Gullick Thompson and Rube Lazarus from multiple convictions for violations of section 6200 of the Government Code, and from orders denying their motions for new trial. By section 6200 of the Government Code it is made a felony for an officer, having custody of a public record or paper, to steal, destroy, secrete or mutilate the same.1 By section 6201 of the Government Code any pe...
Views: 0
Page 573
Respondent commenced this action alleging that he and appellant orally entered into a partnership agreement to conduct a horse-racing stable and to train and race horses at recognized tracks; that the parties agreed to share equally in the profits and losses and equally to contribute capital and advances to the partnership; that respondent had contributed more capital and made more advances than ...
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This is an appeal by defendant from a judgment of conviction of the crime of embezzlement. By information, defendant was charged with violation of Penal Code, section 506, in that he wilfully and fraudulently appropriated certain money which was entrusted to him and came into his possession and control for the use of one “Homer Bruce, the Anderson Valley News, and the Anderson Chamber of Commer...
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Caroline R. West, the surviving spouse of J. Howard D. West, deceased, appeals from a judgment in which it was decreed that certain real and personal property standing of record in the names of appellant and her predeceased husband as joint tenants, was nevertheless the community property of appellant and said J. Howard D. West. West, hereinafter referred to as decedent, purchased the real proper...
Views: 6
The court granted a rehearing in this case to give further consideration to appellant’s contention that the jury was improperly instructed as to proximate cause and that the trial court gave an erroneous instruction which brought about the exoneration of the codefendant, Western Pacific Railway.
Here the dangerous condition of the wire had existed for many years. There was a clear duty under the l...
Views: 8
Plaintiff, seller, recovered damages for breach of an oral contract of sale of 14 secondhand automobiles. The sole contention of the appellants—defendants— is that the trial court erred in holding them estopped from asserting the statute of frauds, to wit, section 1973a Code of Civil Procedure, reading in part: “1. A contract to sell or a sale of any goods or choses in action of the value of fi...
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Appellant, East Bay Municipal Utility District, the defendant below, appeals from a judgment against it of $3,360 in a suit for damages to plaintiffs’ property alleged to have been caused by an overflow of San Pablo Creek resulting from defendant utility district’s negligence in the operation of San Pablo Dam and Reservoir. • Judgment upon the jury’s verdict in favor of plaintiffs was entered o...
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Page 624
This is an appeal from the judgment. Plaintiff and defendant were married October 13, 1950. Each had been married before and each possessed separate property. They separated June 9, 1951. As stated in respondent’s brief, “Plaintiff sued defendant, his estranged wife, to quiet title to certain parcels of real estate, which were plaintiff’s separate property owned prior to his marriage to defendant....
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In this case the employee testified that while he was rolling a bale of old automobile tires weighing 200 pounds, he stooped over and tried to lift the bale; that when he stooped over he felt a snapping or pulling sensation in his back. The employee’s doctor diagnosed his trouble as a herniated disc, for which he operated. The Industrial Accident Commission found that the employee suffered an indu...
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Appellant, as beneficiary under a policy of insurance issued by the respondent, brought this action to recover $5,000 payable to her under the terms of said policy in the event of the death of said insured “as the result, directly and independently of all other causes, of bodily injuries caused solely by external, violent, and accidental means.” This appeal is taken from the judgment that plain...
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Respondent Lucero has moved to dismiss an appeal purportedly taken from an order of the Superior Court of Yolo County, by which order that court dismissed an appeal taken to it from a judgment rendered in the Justice Court of the Davis Judicial District. The action was based upon an open book account in the sum of $85.81 and was, therefore, within the original jurisdiction of the justice court ...
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Appellant was charged by information with two violations of section 245 of the Penal Code, to wit: assault with a deadly weapon. The assaults were alleged to have been committed with a pistol upon the persons of Leon Calkins (count 1) and James Shirley (count 2) on October 10, 1952. Following a trial, appellant was found guilty on count 2 and not guilty on count 1. Appellant’s motion for a new tr...
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Page 654
Respondent, Jose Martha, having been convicted and sentenced to jail by a judgment made and entered in the Justice’s Court of Colusa Judicial District, Colusa County, California, petitioned the Superior Court of *656 Colusa County for a writ of habeas corpus. The writ was issued and after proceedings held the court declared that respondent was unlawfully detained under count II of the complaint...
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Respondent, Jose Gutierrez, successfully petitioned the Superior Court in Colusa County for a writ of habeas corpus. The People appeal from the order of the trial, court discharging him from the custody under which he was being held. The record shows that a complaint was filed against respondent containing two counts, by one of which he was charged with disturbing the peace. (Pen. Code, § 415.) T...
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As a result of a jury trial plaintiff Wells Trackways, Ltd., was given judgment for $18,864.32 against defendants for damage occurring to plaintiff’s tractor and trailer when defendant Cebrian’s tractor and trailer, driven by defendant Donahue, collided with it on Highway 99 near Whitewater, about 9:30 p. m. on January 8, 1950, as a result
*669
of which Louis Richter, the driver of...
Views: 13
This appeal presents the following question : Can the state forfeit the interest of an owner of an automobile where the owner rents the automobile to a bailee, who, in turn, entrusts it to a malefactor, who uses the car, illegally, and contrary to the terms of the rental agreement, to transport narcotics 1 The trial court answered this question in the affirmative and forfeited the interest of t...
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Plaintiff, Lawrence G. Mitchell, was driving an automobile south on Grove Street, in San Bernardino County. Defendant, James Thomas Cartwright, was driving another automobile east on Merrill Street.
At the intersection of Grove and Merrill there was a boulevard stop, which it was plaintiff’s duty to observe and to obey. Merrill was a through street.
The intersection was in open farmin...
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An information was filed against appellant charging him with a violation of Vehicle Code, section 502, to wit: operating a motor vehicle while under the influence of intoxicating liquor, and also charging him with three prior convictions under the same section. Upon being ar *700 raigned in the superior court he entered a plea of “Not Guilty” to the offense charged and “Guilty” to the prior con...
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Josephine B. McConnon died December 31, 1949, at the age of 86, leaving as her principal estate a valuable piece of real property on Fell Street in San Francisco, on which two buildings had been constructed. One building consisted of a garage and three apartments, the other consisted of four flats. After her death the plaintiff. Ann Rousseau, grandchild of the deceased, claimed the property by ...
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Plaintiff and appellant John Rodgers filed this action against the administratrix and heirs of deceased Marie A. Rodgers, to enforce an alleged reciprocal oral agreement between plaintiff and his deceased wife to devise property to him by will and to establish a trust thereon.
He alleged that beginning May 28, 1926, to the date of her death on May 28,1951, plaintiff and the deceased acquired prope...
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This is an action for equitable subrogation of a claimed lien to the lien of a deed of trust, or in the alternative to declare an equitable lien upon the proceeds of the sale of the real property formerly covered by the deed of trust. It was brought by plaintiff and appellant Alfred A. Grant III, as executor of the last will and testament of Alfred A. Grant II, deceased, against Donald F. de Otte...
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Plaintiff Lansing K. Tevis recovered judgment upon a promissory note in the principal sum of $5,000 against defendants Brunner Blanchard Manufacturing Company, Inc., a corporation, as maker, and G. Arthur Blanchard as guarantor. Blanchard has appealed from the judgment and from an order denying his motion for judgment notwithstanding the verdict. He claims the note is void either as a security ...
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This is an appeal by Joseph Abrams, an individual, defendant below, from a judgment against him in the amount of $10,876.74 plus interest, arising out of a sale by him to respondent of imported Portuguese brandy. The trial court held that a certain document and transaction of December 11, 1945, constituted an agreed and voluntary rescission by the parties of the purchase orders for the 400 case...
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Page 749
Defendant was convicted by a jury of a violation of section 11500, Health and Safety Code, possession of marijuana. He appeals from the judgment and from an order denying his motion for new trial. Two police officers on January 9, 1953, went to the premises known as 1626 Ellis Street in San Francisco. The premises consisted of a front room used as a shoeshine parlor and a back room containing a...
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The petitioner is a nephew of Dora M. Baldridge. He sought to have her declared incompetent and a guardian appointed for her person and estate. *753 After hearing the evidence, the trial court found that Mrs. Baldridge “is competent to manage her own person and her household affairs and expenses” and denied the petition for guardianship of her person. The court also found that “Dora M. Bald...
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Appellant, as plaintiff, instituted the present action for the purpose of recovering damages for alleged breach of the implied covenant of quiet enjoyment in a lease, and for being fraudulently induced to enter into said lease. The trial court held that no eviction had taken place and gave judgment in favor of the respondent defendants. The property involved herein is the Margent Building, 204 N. ...
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Appeal by defendant Rook from an adverse judgment entered on verdicts of a jury in actions for damages for personal injuries. Rook commenced an action in the municipal court against Ellen Louise Chastain for damages for personal injuries and to property. Ellen Louise filed a cross-complaint in that action for damages in a sum in excess of the jurisdiction of the municipal court. That action was...
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Plaintiff, the former wife of defendant Garrett H. Briggs, brought this action to obtain a judgment determining that certain real property in Orange County is the community property of plaintiff and said defendant. She also seeks damages for the loss of her community property interest therein in the event that it cannot be conveyed to her. On May 17, 1940, an order settling final account and fo...
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On October 2,1951, plaintiff filed this action for divorce in San Bernardino County, California, alleging, among other matters, that the custody of the minor child of the parties had been awarded to plaintiff’s parents by virtue of a decree of divorce rendered in the state of Kansas and that certain real and personal property described therein was community property. The prayer of the complaint w...
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Petition for writ of mandate to compel respondent chairman of petitioner Redevelopment Agency of the City and County of San Francisco
*
to execute certain loan and grant contracts with the United States of America.
Questions Presented
1. Have interveners the right to intervene ?
2. Constitutionality of the Community Redevelopment Law (Health & Saf. Code, pt. I, div. 24...
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On December 2, 1951, at about 9:45 in the evening, Clarence O. Barton was operating his automobile in a southerly direction on Lincoln Boulevard in Santa Monica, California, accompanied by his wife, one of the plaintiffs herein, Happy May Barton. Their automobile was struck from the rear by a tractor and semitrailer operated by the defendant Orval Messmore and owned by defendant Union Truck Compa...
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Plaintiff was employed in a large gasoline and automotive service station on San Fernando Road in Burbank, Los Angeles County. Gasoline and propane pumps were ranged in two rows, parallel with San Fernando Road. Back of the pumps was a building used for changing tires, and for doing other automotive service work. At the rear corner of the building was a wash and rest room for employees. This room ...
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The petition for instructions of Bessie Hirsh and Jeanette Sarno, as coexecutrices of the last will of Max Hirsh, recites that Bessie Hirsh is the surviving spouse of decedent; that the estate consists of community property of decedent and Bessie Hirsh and also separate property of decedent. Under the terms of the will all of decedent’s property was devised and bequeathed to his three children:...
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The complaint herein alleged that on February 3, 1949, and thereafter the plaintiff was the owner and entitled to the possession of $24,990.91; on said *827 day William Simpson, the District Attorney of Los Angeles County, entered the premises occupied by plaintiff and took into his possession said sum of money; the defendant Roll herein, who succeeded Mr. Simpson as district attorney, took pos...
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Appeal by defendants from an adverse judgment in an action by a real estate broker to recover a commission.
Plaintiff was a licensed real estate broker and also was a salesman for Consolidated-Hill, Inc., a concern engaged in selling market fixtures.
*842
On January 31, 1949, the parties entered into a written contract
1
by which defendants employed plaintiff “for ...
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Appeal by defendants and cross-complainants from: (1) an order granting plaintiff and cross-defendant’s motion for reconsideration of the denial of a motion to *854 vacate and set aside a judgment; (2) an order setting aside and vacating an order denying a motion of plaintiff and cross-defendant to vacate and set aside a judgment; (3) an order setting aside and vacating the default of plaintiff...
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This is an action to recover on an insurance policy. The policy, issued on August 1, 1947, insured the life of Joseph E. Wharton, with an additional benefit in the event of death by accidental means. Wharton died on April 4, 1950. The life insurance was paid, but the defendant refused to pay the accident insurance, contending that death was not caused by accidental means within the meaning of the ...
Views: 2
In an information filed by the district attorney of Merced County, appellant John K. Parker and Jesse Jack Wilmoth were jointly charged with two crimes. In count one of the information they were charged with violating section 4534 of the Penal Code, it being alleged that appellant and Wilmoth on or about the 3d day of August, 1952, “did wilfully, unlawfully and feloniously assist a prisoner, to-w...
Views: 9
Defendants and cross-complainants appeal from a judgment and decree quieting title in plaintiffs as joint tenants of certain, real property in Orange County and declaring that defendants and cross-complainants have no right, title, interest, claim or estate therein. Defendants, in their answer to the complaint to quiet title, admitted that the record title was in plaintiffs but claimed title to...
Views: 3
This is an action by depositors for the amount of a check credited to their account, but charged back by defendant bank when it found that the funds were insufficient. The court gave judgment for the bank and plaintiffs, depositors, appeal.
The notice of appeal was filed on October 7, 1952, prior to the rendition of judgment and the filing of the findings of fact and conclusions of law, wh...
Views: 5
Defendants and appellants were charged with and convicted by the court, sitting without a jury, of the crime of manslaughter (involuntary) under section 192 of the Penal Code. Both appealed from the judgment and order denying a new trial. The evidence shows that about midnight on July 4, 1952, three youths, Richard Young, Henry Gonzales and Joe Harmer, were returning home from a café in Colton....
Views: 11
Alfred J. Byrnes, plaintiff, appealed from the order which granted a new trial after entry of judgment in his favor upon a verdict for $30,000 in this action *903 against Miley B. Wesson, physician and surgeon, on account of injuries allegedly caused by negligence of the defendant • in the care and treatment of the plaintiff. The order for new trial stated that it was granted “upon the ground...
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Defendant appeals from a summary judgment in an action on a promissory note.
On November 25, 1952, plaintiff, Don C. Kimber, filed a complaint alleging that he was the assignee and lawful holder of a promissory note executed by defendant Nelson E. Jones in the sum of $12,214.81, running in favor of Lee P. Hill, plain
*915
tiff’s assignor. A copy of this note, dated June 15, 19...
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Appeal by plaintiffs from an order granting defendant’s motion for a change of venue from the county of Los Angeles to the city and county of San Francisco. The suit is for an injunction to restrain the Insurance Commissioner from enforcing the provisions of an order dated June 19, 1952, identified as Ruling No. 67; for a declaration of the rights and duties of the parties with respect to the o...
Views: 1
As the result of an automobile accident which occurred on January 19, 1951, at the intersection of Highway 152 and County Road 10-N in Madera County, Charles Boots received personal injuries and his wife, Mary Boots, was killed. One action was filed by Charles Boots to recover for his own injuries and another by Charles Boots and the children of Charles and Mary to recover damages for Mary’s de...
Views: 5
122 Cal.App.2d 942 (1954)
Estate of MARIA S. HUBBARD, Deceased. STOCKTON SAVINGS AND LOAN BANK (a Corporation), Petitioner; SECURITY TRUST COMPANY OF ROCHESTER, as Trustee, et al., Appellants,
v.
BANK OF AMERICA NATIONAL TRUST AND SAVINGS ASSOCIATION, as Guardian, etc., Respondent.
Civ. No. 8269.
California Court of Appeals. Third Dist.
Jan. 29, 1954.
Smith & Zeller for Appellants.
Mazze...
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This is an appeal from an order of distribution following termination of the trust created by the decedent.
At the time of her death in 1917 decedent was survived by two adult married daughters, Maria Cronise and Eliza Middleeoff, her only heirs at law. Both of their husbands were then living. Following the administration of her estate the court, in its decree of final distribution, stated that th...
Views: 0
122 Cal. App. 2d 948 (1954)
265 P.2d 963
C.A. RICKETTS, Plaintiff and Appellant,
v.
THE MOREHEAD COMPANY, INC. (a Corporation), Respondent; WILLIAM HEATER et al., Defendants and Appellants.
Docket No. 8279.
Court of Appeals of California, Third District.
January 29, 1954.
*949 Goldstein, Barceloux & Goldstein, J. Oscar Goldstein, P.M. Barceloux and Burton J. Goldstein for Plaintiff and Appell...
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This is an appeal by the defendant from a judgment against him in the sum of twenty-five dollars ($25.00) for false imprisonment. The appellant raises two points in his brief: first, he contends that the record fails *959to establish any false imprisonment; and secondly, he argues that the proof does not justify the amount of the award. Findings of fact were waived, through the failure of either p...
Views: 1
Defendant was prosecuted and found guilty in the Municipal Court of San Diego Judicial District under a complaint charging that on or about the 9th day of April, 1953, in San Diego Judicial District in the said County of San Diego, State of California, he did “. . . wilfully and unlawfully use narcotics; . . .,” in violation of the provisions of section 11721 of the Health and Safety Code. A ju...
Views: 15
The defendants appeal from a judgment convicting them of the violation of an ordinance of the city of Fresno, which forbids the conducting of gambling games. Two points were raised on the appeal; first, it is contended that the evidence does not justfy the verdict of guilty; and, secondly, it is urged that one of the instructions was erroneus. The first point is not well taken, for the evidence am...
Views: 1
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