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All Reporters → cal-app-2d → Volume 28

Opinions in cal-app-2d Volume 28

28 Cal. App. 2d 1 (1938) THE PEOPLE, Respondent, v. LEO EKSTRAND, Jr., Appellant. Crim. No. 3111. California Court of Appeals. Second Appellate District, Division One. July 28, 1938. Fred G. Sutherland and William W. Larsen for Appellant. U.S. Webb, Attorney-General, and Alberta Belford, Deputy Attorney-General, for Respondent. White, J. In an information filed by the district attorney, de...
Views: 11
28 Cal. App. 2d 8 (1938) In the Matter of the Estate of WALTER V. PIERCE, Deceased. L. B. PIERCE et al., Appellants, v. H. A. PIERCE et al., Respondents. Civ. No. 6098. California Court of Appeals. Third Appellate District. July 28, 1938. Johnson & Curtright for Appellants. Albert L. Wagner, R. G. Lenske, Butler, Van Dyke & Harris, Henry & Bedeau and E. G. Funke for Respondents. ...
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28 Cal. App. 2d 14 (1938) A. B. BIAS, Respondent, v. Ohio Farmers Indemnity Co. (a Corporation), Appellant. Civ. No. 10487. California Court of Appeals. First Appellate District, Division One. July 29, 1938. Leslie C. Gillen and P. R. McEnerney for Appellant. Harry J. Bias and W. A. Deans for Respondent. Knight, J. A judgment for damages in the sum of $1250 was obtained by Florence Wilson ...
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28 Cal.App.2d 18 (1938) W. T. DOYLE et al., Respondents, v. RICE RANCH OIL COMPANY (a Corporation), Appellant. Civ. No. 11477. California Court of Appeals. Second Appellate District, Division One. July 29, 1938. Richard J. O. Culver and Felix H. McGinnis for Appellant. C. Douglas Smith and Fred A. Shaeffer for Respondents. *19 Doran, J. This is an appeal from an order vacating a default ju...
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This is an appeal from a conviction of the crime of violation of section 337a, subdivision 2, of the Penal Code, a felony, and from the court’s order denying a new trial. The contention of the defendant is that one who is found guilty of conducting a pari-mutuel method of wagering and not a banking or book-making game outside the enclosure where the racing takes place cannot be convicted of the vi...
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This is an appeal from a judgment for damages in another automobile collision case. The first contention of the plaintiff (appellant) is that the deliberate misconduct of defendant’s counsel prevented plaintiff from having a fair trial in the following respects: Cross-examination : “Q. (By Mr. Parker) Now, did you [Murchison] as their attorney—you knew did you not that they paid Mrs. Engelbrecht ...
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This is an appeal from a judgment quieting plaintiff’s title to certain real property. The complaint is in the usual form, paragraphs IV and V thereof alleging ownership and right of possession in the plaintiff and the invalidity of any claim of interest asserted by the defendant. The answer makes no general denial of these allegations but with respect thereto “Denies the allegations of paragraphs...
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28 Cal. App. 2d 31 (1938) THE PEOPLE, Respondent, v. BYRON LEE FITCH, Appellant. Crim. No. 1632. California Court of Appeals. Third Appellate District. July 30, 1938. Hardin Barry for Appellant. U.S. Webb, Attorney-General, and Gordon S. Hughes, Deputy Attorney-Genaral, for Respondent. Thompson, J. The appellant shot and killed Earl C. Smith at Tule Lake in Modoc County, July 21, 1937. He ...
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This is an action wherein plaintiffs sought to recover damages from the County of Los Angeles, alleged to have resulted from floods following a heavy rain. A verified claim for damages in the following words and figures was duly filed on April 2, 1,935: "The undersigned hereby makes claim and demand for the payment of the sum of $1475.00 being the amount of damage due said claimant for damages to...
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28 Cal. App. 2d 50 (1938) THE PEOPLE, Respondent, v. L. P. LORRAINE, Appellant. Crim. No. 1635. California Court of Appeals. Third Appellate District. August 5, 1938. Robert W. Huston and Horace E. Frye for Appellant. U.S. Webb, Attorney-General, and Gordon S. Hughes, Deputy Attorney-General, for Respondent. Thompson, J. The defendant was convicted of the crime of abortion under the provis...
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28 Cal.App.2d 55 (1938) ALMA JOLLEY et al., Respondents, v. WALLACE CLEMENS, Appellant. Civ. No. 2057. California Court of Appeals. Fourth Appellate District. August 8, 1938. Wright, Monroe, Thomas & Glenn and Wright, Monroe & Harden for Appellant. Sloane & Steiner and John W. Holler for Respondents. Haines, J., pro tem. Between 1 and 2 o'clock in the morning of February 10, 19...
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Plaintiff took an appeal pursuant to the provisions of section 953a of the Code of Civil Procedure from an order granting defendant’s motion for a change of venue, and in furtherance of the appeal and in conformity with statutory requirements requested the preparation of a transcript, which in due course was filed in this court. Thereupon plaintiff served and filed its opening brief, which was fol...
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Plaintiff, Pearl Edwards Eddy, a minor of the age of 17 years, by and through her guardian ad litem, commenced this action against the City of Los Angeles and E. L. Vinsant to recover damages for personal injuries received by the minor plaintiff, a pedestrian, while crossing York Boulevard, a public street in the City of Los Angeles, in the lane marked for pedestrians, when she was struck by an...
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This is an appeal from an order extending a previous order postponing a sale under a deed of trust. The Bank of America National Trust and Savings Association held a trust deed on certain real property and on October 21, 1935, caused a notice of default to be recorded. On November 12, 1935, Anna L. Hartman, the owner of the property and payer of the note secured by the trust deed, filed a petition...
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Wesley S. Campbell died on October 4, 1935, leaving a will containing the following clause: “All the rest, residue, and remainder of my estate, of whatsoever kind and nature and wheresoever situated, I give, devise and bequeath to the four chair officers of San Diego Lodge No. 168 Benevolent and Protective Order of Elks, being the four chair officers in office at the time of distribution of my ...
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28 Cal. App. 2d 106 (1938) In the Matter of the Estate of JOSEPH C. MALLON, Deceased. MARY A. MALLON, Appellant, v. MARY KNOLL MISSIONARY SOCIETY et al., Respondents. Civ. No. 2081. California Court of Appeals. Fourth Appellate District. August 10, 1938. Gray, Cary, Ames & Driscoll for Appellant. Marcus L. Roberts for Respondents. *108 Barnard, P. J. This is an appeal from an order con...
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28 Cal. App. 2d 112 (1938) DONNER FINANCE COMPANY (a Copartnership) et al., Respondents, v. THE MUNICIPAL COURT OF THE CITY AND COUNTY OF SAN FRANCISCO et al., Appellants. Civ. No. 10537. California Court of Appeals. First Appellate District, Division One. August 11, 1938. J. A. Seaman and Morris M. Grupp for Appellants. Leon Samuels, Dreher & McClellan and Edgar C. Levey for Respondents...
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This is an appeal from a judgment notwithstanding the verdict, after verdict had been rendered in favor of plaintiff in a suit against the defendant theatre for injuries which plaintiff sustained by being kicked in the back by an intoxicated patron, while plaintiff was attending a motion picture show in defendant’s theatre. The facts are not in serious dispute. The plaintiff entered the theatre...
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The respondent has moved to dismiss this appeal on the ground that no application wa¡s filed by the appellant setting forth the grounds of the appeal, the points relied upon and designating what portions of the reporter’s notes it was necessary to have transcribed in order to fairly present the points relied upon, as provided for in section 7 of rule II of the Rules for the Supreme Court and Distr...
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The defendants were convicted by a jury of eight counts of burglary in the second degree and have appealed from the judgments and from the orders denying their motions for a new trial. A general store, known as the Tatum General Store, in the town of Nuevo, Riverside County, was entered on the 19th day of November, 1937. The cash register was opened, with about $25 in small change missing. In a...
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The complaint in this action is in two counts. In the first a cause of action is alleged against defendants and respondents other than the Abstract and Title Insurance Co., to which we will hereinafter refer as “the abstract company”, for damages claimed to have been sustained through their failure and refusal to discharge of record a crop mortgage made to secure a note executed to them by plainti...
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This is an appeal by plaintiff from a judgment in an action based upon a judgment obtained in a foreign state. The defendant and respondent herein, B. G. Wallace, was the defendant, and made an appearance as such, in an action brought in the District Court of the United States for the District of North Dakota, southwestern division, in which action judgment was for plaintiff and against defenda...
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This is a motion to dismiss the appeal on the ground that no transcript has been filed. It appears from the certificate of the county clerk that judgment was entered on March 8, 1938; that notice of appeal was filed on March 17, 1938; that a request for a transcript was filed with the clerk on March 31, 1938', and communicated to the court reporter; that on June 28, 1938, the respondents filed not...
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The plaintiffs brought suit to cancel two promissory notes executed and delivered to the defendant bank March 24, 1930, secured by a deed of trust on lot 6, block 27, of the town of Colusa. The first-note was for the principal sum of $1,000 and the second one was for $800. It is alleged the plaintiffs received no consideration for the $800 note and that the $1,000 note was fraudulently altered ...
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Raymond Peterson and one John Spahn were charged in an information filed by the district attorney of San Bernardino County with the crime of robbery perpetrated by means of a deadly weapon, to wit, a pistol. A trial was had before a jury and a judgment of conviction rendered against Peterson. It is not contended by appellant Peterson, who alone prosecutes this appeal, that the evidence was not suf...
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The defendant was convicted in the Superior Court of the State of California in and for the County of Marin of a felony, namely forgery. The defendant plead guilty to the offense as charged in the information and judgment was entered April 18, 1938. Defendant gave notice of appeal. The transcript was filed in this court on May 9, 1938. The cause was regularly placed on the calendar for oral argume...
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The defendant was convicted on two counts of an information charging him with grand theft in defrauding the owner of certain shares of securities, and of another count accusing him of dealing in and selling securities without having procured a permit therefor from the commissioner of corporations, contrary to the Corporate Securities Act of California. From the judgment which was accordingly rend...
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Petitioner seeks a writ of prohibition to restrain the respondent court from enforcing the alternative provisions of the sentence imposed upon petitioner by the respondent court in a criminal action. The minutes of said court show that petitioner was convicted of the crime of conspiracy to violate section 17 of an act known as the General Cemetery Act (Stats. 1931, p. 2443), and that after he w...
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Plaintiffs sought to enjoin defendants from diverting water from a certain irrigation ditch and to recover damages. The cause was tried by the court sitting without a jury and from a judgment in favor of defendants, plaintiffs appeal upon the judgment roll. The plaintiffs may be hereinafter referred to as the Dierssens; the defendants Thomas H. McCormack and Clara H. McCormack as the McCormacks; ...
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This appeal by the widow- of Marion A. Lewis, deceased, has been transferred by the Supreme Court to this court for decision pursuant to the provisions of article VI, section 4, of the Constitution of the state of California. It is from the portion of a decree of distribution declaring a trust in certain real property hereinafter described after trial before the court without a jury. *1...
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From a judgment in favor of all defendants except defendant MacDougall after trial before the court *177 without a jury in an action to recover damages for the alleged conversion by respondents of a building and loan certificate and passbook of the value of $8,020 plaintiff appeals. The essential facts are: December 22, 1930, L. W. Evinger, brother of plaintiff . purchased from defendant Am...
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This appeal by petitioner, the widow of George H. Allan, deceased, has been transferred by the Supreme Court to this court for decision pursuant to the provisions of article VI, section 4 of the Constitution of the state of California. It is from a decree determining heirship to the real property hereinafter described after trial before the court without a jury. Viewing the evidence most f...
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This is a motion to affirm a judgment in favor of respondents after trial before a jury in an action to recover damages for personal injuries. The motion is made in accordance with the provisions of rule V, section 3, Rules for the Supreme Court and District Courts of Appeal (213 Cal. xliii), which reads in part as follows : “At any time after the filing of the opening brief of an app...
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Emile Grossman, an attorney licensed to practice in the state of California; Louis Kameny, a physician and surgeon likewise licensed to practice in this state, and Adrienne Udstone were indicted by the grand jury of Alameda County on July 30, 1937, for the following offenses, charged in six counts, in this order: 1. Conspiracy to commit grand theft. 2. Attempt to commit grand theft. 3. A violat...
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Defendant, who was charged in an information with the crimes of burglary and robbery, was found guilty of both offenses by a jury. The appeal herein is from the judgment and from the order denying defendant’s motion for a new trial. It appears from the evidence that a cafe in Los Angeles known as the “Hill Street Five and Ten” was entered in the early morning by an intruder who mounted the fire es...
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Plaintiff seeks to recover from defendants upon their statutory liability as directors of a corporation under the laws of the state of Montana. The trial court sustained the demurrer of defendants without leave to amend and plaintiff has appealed from the judgment thereafter entered. Defendants were directors of Tweedy Brothers Corporation, which was duly organized as a corporation under the la...
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This action was commenced by the heirs of Walter S. Sweet to recover damages resulting from his death, which occurred when a truck driven by defendant Thole collided with a truck driven by defendant Sager near the city limits of Santa Maria. The jury rendered a verdict in favor of plaintiffs against Sager and his employers and also against defendant Thole and the County of Santa Barbara. A judgmen...
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Plaintiff appeals from the judgment in favor of defendant City of Pasadena in an action to recover damages for personal injuries, entered after the trial court sustained the city’s demurrer to the third amended complaint without leave to amend. According to plaintiff’s allegations, she was riding as a passenger in an automobile being driven in an easterly direction on Walnut Street in the City ...
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This is an action to recover taxes paid by appellant Bandini Estate Company, a corporation, upon twenty-four parcels of real property in the County of Los Angeles. On the first Monday in March, 1931, and for several years prior thereto this property had belonged to the Laguna Maywood Land Corporation. In July, 1931, the Laguna Maywood Land Corporation filed with the Los Angeles County boar...
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The defendant was convicted of failing to render reasonable assistance to a guest who was injured while riding in his automobile when the machine ran over an embankment. He was indicted and prosecuted under the provisions of section 482 of the Vehicle Code of California. It is contended the verdict and judgment are not supported by the evidence; that the statute applies only to the driver of an...
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The plaintiff sued to recover damages for injuries suffered in an automobile collision. The jury returned a verdict in favor of the plaintiff and from the judgment entered thereon the defendant has appealed. His first point is that the plaintiff failed to prove by a preponderance of the evidence that there was any negligent act of the defendant which was a proximate cause of" the injury suffere...
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Phyllis Freund, a minor, by her guardian ad litem, commenced this action to recover damages for injuries sustained when struck by a locker which toppled over in the gymnasium building on the school grounds. The complaint alleged in substance that the plaintiff was a student at Claremont Junior High School, Oakland; that a locker room was maintained for the convenience of the students; that ce...
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At the time the above-entitled matter was called for hearing on oral argument it was made to appear to the satisfaction of the court that the questions raised in the petition for a writ of habeas corpus had become moot. Therefore, the writ is discharged and the bond heretofore filed in this matter by petitioner is exonerated. Grail, P. J., and Wood, J., concurred....
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This case comes before the court on motion of respondent to dismiss the appeal for failure of *253appellant to file a transcript of the record or brief, although the time therefor is long past due. The motion is good and it is granted. Appeal dismissed....
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This is an action to cancel and set aside a sale of real property under a trust deed and to declare a grant deed to be an equitable mortgage securing an indebtedness which had previously been secured by the trust deed. The defendant held a note for $4,500 secured by a trust deed, both executed by the plaintiff on September 16, 1926, the note being payable three years after date. On January 28, 193...
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The defendant was charged with the crime of escape, a felony, and with two prior convictions of felony. After a plea of not guilty and a denial of the prior convictions he was tried with a jury on May 2, 1938. The jury returned a verdict finding him “guilty of escape as charged in the information”, but was unable to agree on the prior conviction charges. The jury was discharged, the time for pron...
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This is an appeal by Lottie Keller, formerly Lottie Bradley, from a decree of the probate court construing the will of the decedent. Said decedent left an holographic will which contained numerous provisions. Among said provisions was the following : “To my sister Mrs. Lottie Bradley sometimes called Mrs. J. R Bradley I have deeded my property at the South West corner of Hopkins St and Dimond...
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This is an appeal from (1) an order dated March 1, 1938, denying the motion of the plaintiff to vacate and set aside a judgment on a verdict and (2) an order that a stipulation providing for the dismissal of an appeal dated October 9, 1936, be filed in the superior court nunc pro tunc as of March 15, 1937. This case has „been tried twice. Each time the jury returned a verdict for the defendant, an...
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This is an appeal from a judgment sustaining a demurrer to a fourth amended complaint without leave to amend. This fourth amended complaint was a suit to recover trust funds alleged to be held for the benefit of plaintiff under charter provisions of the City of Pasadena regarding firemen’s pension funds. The action is brought for the recovery of the pension due to the plaintiff, a widow of Edga...
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This is an appeal by the plaintiff from a judgment of nonsuit in favor of the Y. W. C. A. of Long Beach, a corporation, and Martin C. Carter, Virginia J. Glenn and Genevieve Dodge, and from an order denying a motion for a new trial. The case comes before the court at this time upon a motion of the said defendants to dismiss the appeal on the ground that no transcript on appeal has been filed on be...
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This is an application by the State Compensation Insurance Fund for a writ of review for the purpose of obtaining a judgment annulling an award made against it. The employer, Emil Tabournel, for some years prior to 1936, owned and operated the Hotel Henry in San Francisco. In May, 1936, he determined to place an application for compensation insurance with the State Compensation Insurance Fund, and...
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Two informations were filed, charging the defendant with offenses of grand theft, the stealing of three calves. The two cases were consolidated for trial and the defendant was convicted by a jury in both cases. While defendant gave notice 'of appeal in each ease, but one record and one set of briefs have been filed, and it was stipulated that the two appeals might be considered together. Appell...
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The information in this ease charged the defendant with the offenses of kidnaping, robbery and grand theft of an automobile. Appellant urges all of the statutory grounds for a reversal of the judgment. The evidence discloses that on the 25th day of February, 1938, at 10 P. M., one James K. Givens was seated in an automobile in front of the Coast Ice Cream Company on North Main Street in the c...
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John Spahn and one Raymond Peterson were jointly charged in an information filed by the district attorney of San Bernardino County, with the crime of robbing one C. H. Oliver of the sum of $15, and with perpetrating said robbery by means of a deadly weapon, to wit, a pistol. A second information filed charged both defendants with the crime of burglary. At the trial both defendants were acquitted ...
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This is an appeal from an order denying a motion to issue execution more than five years after judgment. On May 23, 1927, plaintiff recovered judgment against defendant in the sum of $543.98, besides costs. The judgment was based on a claim assigned to plaintiff by the Standard Oil Company of California. Execution on the judgment was issued on May 29, 1927. On affidavit of one of the attorneys for...
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This is an appeal from a judgment pronounced on defendant after a jury had found him guilty of robbery in the first degree, and from the order denying his motion for new trial. Defendant and his nephew, Lloyd Growl, were arrested for the robbery of C. M. Johnson, committed on February 3, 1938, on the highway leading from Needles to San Bernardino. Lloyd Growl was a minor of the age of sixteen y...
Views: 16
The respondent has moved to dismiss this appeal upon the ground that written notice of appeal was not filed with the clerk of the court within two days after the rendition of the judgment, as required by section 1239 of the Penal Code. It appears from the certificate of the clerk of the trial court that the defendant was, on June 7, 1938, found guilty of the crime of bigamy by the verdict of a ...
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This is an appeal from a judgment in favor of the defendant in an action upon a written contract for the purchase of a stationary engine and for goods sold and delivered to the defendant at her special instance and request. The answer admits the execution of the contract, but denies that the plaintiff delivered or installed the property purchased, and alleges that the plaintiff delivered and in...
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During the years 1931 and 1932 (and at other times not herein involved) David E. Brown and Owen M. Sullivan, doing business under the firm name and style of Brown & Sullivan, engaged in the business of refining, producing and distributing motor vehicle fuel in the state of California. In April, 1931, pursuant to the provisions of the Motor Vehicle Fuel License Tax Act (Stats, of 1923, p. 5...
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This is an appeal from the judgment in an action for conversion. The facts briefly are as follows: On the 30th day of July, 1935, plaintiff’s assignor rented to Anglo American Petroleum, Inc., on a month to month basis, certain oil well machinery to be used by such company in the drilling of an oil well. The rental agreement provided that the rental be the sum of $50 per day, payable thirty day...
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The transcript presents an appeal by the surviving husband of the decedent from a decree of the superior court making distribution of her estate. The sole question presented is the construction of the last will and testament of the decedent. The will reads as follows: “In case of my accidental departure of this life, I leave all my property to my husband, Frank K. Mayne. “To be carefully ke...
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The defendant has appealed from a judgment which was rendered against her for broker’s commissions for procuring a purchaser of real property deemed to be ready, willing and able to buy the land upon the terms of a written contract therefor. It is claimed the findings and judgment are not supported by the evidence for the reason that there is a fatal variance between the vendor’s contract ...
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The defendants have appealed from a judgment of foreclosure of mortgage, which was rendered *356 against them. The mortgage contains a clause to the effect that it was executed to insure the mortgagee against loss on account of his purchase of certain shares in a Texas oil company. It is contended this clause creates a condition precedent to the right of foreclosure of the mortgage, and that th...
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By this action plaintiff as a taxpayer and resident of the City of Martinez seeks to recover the sum of $4,639.89, under the provisions of a statute which forbids a public officer from being interested in contracts made by a governing body of which he is a member. The trial court sustained demurrers to the third amended complaint in this action, and upon a failure to amend, judgment was entered...
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This is an appeal from judgments of dismissal following the sustaining of separate de*374murrers to a fourth amended complaint in an action for damages. Two judgments were entered and two notices of appeal filed, which have been presented together. For convenience, the respondent bank and its predecessor will be referred to as the bank, and the respondent Transamerica Corporation will be referred ...
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This is a motion to dismiss the appeal because the record on appeal was not filed within the time required by law. The complaint of Ida A. Deist, the answer and cross-complaint of The First National Bank of Orange, and the judg*380ment in favor of the latter are not in the record. The only pleadings brought up are the cross-complaint of A. I. Frey, trustee, and the answer of The First National Ban...
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This is an original proceeding for a writ of mandamus to require the respondent court to assume jurisdiction of a motion for an injunction restraining one John Bell from disposing of his property for the purpose of defeating execution of a judgment against him in an action entitled Passow v. Bell. On the hearing on the return to the alternative writ issued herein it was conceded that the sole gro...
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The plaintiff herein secured a judgment against the defendant, predicated upon a charge of malicious prosecution. The case was tried before a jury and interrogatories were propounded and findings thereon duly made by the jury. Judgment was rendered in accordance with the verdict. The defendant appealed, and on March 24, 1937, this court reversed the judgment; the respondent petitioned for a heari...
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Defendant, who was charged in an indictment with two counts of the crime of grand theft, was found guilty thereof by a jury.' The appeal herein is from the judgment, and from the order denying defendant’s motion for a new trial. It appears from the evidence that on June 24, 1937, defendant represented himself to Mrs. Mary C. Hill, complaining witness, as a Mr. Hershfield, a representative of the “...
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Defendant, who was- charged in an information with the violation of section 506 of the Vehicle Code, a felony, was adjudged guilty thereof by the court and sentenced to imprisonment in the state prison. The appeal herein is from the judgment, and from the order denying defendant’s motion for a new trial. Section 506 of the Vehicle Code reads as follows: “Driving When Addicted to or Under Inf...
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This is an appeal from an order after judgment revoking a previous order suspending the execution of sentence of the defendant and placing him on probation after conviction of a violation of section 288 and section 288a of the Penal Code. In summing up the case the court stated: “It is probably true that', if we were trying the issues involved in this violation on a charge of a new crime, there...
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The defendant entered a plea of guilty to the charge of forgery. The information contained two separate charges of former convictions of felonies in the following language: ‘ ‘ That before the commission of the offense herein-above set forth in this information, said defendant, Franklin H. Lorh (under the name of Frank Henry Lohr), was, in the District Court of the United States, in and for the S...
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Defendants appeal from a judgment in favor of plaintiff after trial before a jury in an action to recover damages for personal injuries suffered in a collision between an automobile and locomotive. (See illustration [page 403] for the photograph of the scene where the accident hereinafter described occurred.) Viewing the evidence most favorable to plaintiff (respondent) the material facts are: Jan...
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The appellant was convicted in the Superior Court of Sacramento County of the crime of violation of section 107 of the Penal Code of the state of California, a felony. The transcript on appeal was filed in this court May 6, 1938. No brief has been filed in behalf of appellant. The cause was regularly placed on the calendar for oral argument on September 12, 1938. No appearance was made for appella...
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Plaintiff acquired ownership of a $4,741 note and trust deed which had been executed by defendant on February 21, 1934. On July 9, 1935, a notice of default under the trust deed was recorded, and on November 8, 1935, the real property was sold under the terms of the trust deed, leaving a deficiency of $2,252.65. On June 6, 1936, an action was commenced in the Superior Court of Los Angeles County t...
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This is an appeal from a judgment allowing a third party claim in the sum of $318.80, but otherwise forfeiting the car under the provisions of the state Narcotic Act. In a complaint filed on behalf of the People by the attorney-general the appellant sought to have forfeited to it under the provisions of section 15 of the state Narcotic Act the vehicle mentioned in these proceedings for the reason ...
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Plaintiff commenced this action on June 17, 1935, to recover a judgment against the four defendants who were makers of a promissory note in which they jointly and severally promised to pay the sum of $2,750. A fifth defendant, Steadman G-. Smith, was sued as guarantor of the note. On the same date the clerk issued a summons directed to all of the defendants. Bruce L. MacLean, respondent herein, wa...
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The record before us presents seven appeals in seven actions arising out of loans made by the Bank of America to W. M. Greuner, since deceased. The bank assigned its claims to this plaintiff and as such assignee he maintained the litigation. The plaintiff appealed in one case and the defendant, Philip Gruener, as special administrator of the estate of W. M. Greuner, deceased, appealed in each o...
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The plaintiff brought suit against the defendant to recover on two different life insurance policies. She framed her complaint in two counts. In each count she pleaded that Frank McLaughlin, her deceased husband, disappeared on the 13th day of October, 1926, and that she was informed and believed that he died on said date. The action was commenced on February 10, 1936. The defendant appeared and a...
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Plaintiff has appealed from a judgment in favor of defendant. The action was brought upon a written contract relating to certain repairs to be made upon an elevator located in the Hotel Lorenz at Redding, California. It is not disputed that the plaintiff has fully performed the contract and that the sum of $2,084 is now due to plaintiff under the terms of said contract. The only question presen...
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On December 22, 1936, C. Albert Hasty, a boy eight years of age, was riding in a school bus going from his home to Charing Cross school. The bus was traveling along Hyde Street in a southerly direction toward *435Post Street. At about the same time George R. Marsh was driving a light Ford truck which was proceeding easterly on Post Street. In the intersection of those two streets a collision occur...
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Plaintiff sued the defendants for the recovery of sums paid under protest claimed by the defendants to be due for freight advanced and storage charges upon a shipment of liquor. The cause was tried without a jury and, at the close of plaintiff's ease, judgment of nonsuit was rendered in favor of defendants. The undisputed facts are that the plaintiff shipped the liquor to defendants’ place of busi...
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Petitioner seeks a peremptory writ of mandate to compel the respondent court- “to make, enter, give and file an order and judgment dismissing and denying” a certain appeal from an order of the police court of the city of Burlingame. A complaint was originally filed in said police court charging Paul P. Bid with the commission of a misdemeanor. He entered a plea of guilty and was thereafter...
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The plaintiff has appealed from a judgment which was rendered in favor of the defendant, Edward H. Marxen, as Trustee in Bankruptcy of the Estate of Santa Monica Amusement Company, a bankrupt corporation, and the plaintiff has also appealed from that portion of the same judgment which quiets title to a wharf at Santa Monica, subject, however, to the rights acquired by La Monica Dance Hall, Inc., a...
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Appellant was found guilty by the court of the crime of violation of section 501 of the Vehicle Code, in that he “did willfully, unlawfully and feloniously drive a certain vehicle, to-wit, an automobile, while under the influence of intoxicating liquor, and in an unlawful manner, causing bodily injury to one Marie A. Beck, a human being”. His motion for a new trial having been denied, appellant w...
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This is an appeal by the defendant from a judgment in a case based on the allegations that the plaintiff had large sums of money in a joint safety deposit box issued in the name of plaintiff and defendant and to which both had access, and that the defendant withdrew said sums and took the same out of the box and retained the same without plaintiff’s consent to her damage in the sum of $48,750. To ...
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From a judgment of guilty on four counts of violating section 288 of the Penal Code after trial before a jury defendant appeals. Defendant relies for reversal of the judgment on the following propositions: First: The evidence is insufficient to sustain the judgments. Second: Three of the complaining witnesses, children less than ten years of age, were incapable of receiving just impres...
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This is an appeal from a judgment in favor of the defendants in an action for damages for alleged personal injuries. The contention of the plaintiff is that the trial court erred in refusing to give to the jury instructions on the doctrine of res ipsa loquitur. Plaintiff entered the place of business of the defendants and ordered a chocolate malted milk. The malted milk was thereupon mixed by...
Views: 1
Appellant herein was indicted for the crime of grand theft, it being alleged that he killed and carried away a Jersey heifer calf, the personal property of W. C. Plolmes. To this indictment the defendant entered a plea of not guilty. Upon the trial he was convicted of the offense charged, and from this judgment of conviction this appeal is prosecuted. Appellant contends that there was no eviden...
Views: 5
Petitioner herein, as insurance carrier under a policy of workmen’s compensation insurance issued to William J. Williams and Rollie B. Williams, copartners doing business as Williams & Williams, seeks this writ of review for the purpose of annulling the findings and award of respondent in a proceeding wherein Raymond Smith was applicant and Williams & Williams were employers, and petitioner herein...
Views: 0
In an amended information containing two counts appellant was charged with violations of subdivisions 2 and 3 of section 337a of the Penal Code, which section denounces as a crime the maintenance or occupancy of a place for the purpose of recording or registering bets on horse races; or the receiving, holding or forwarding of bets or wagers upon such contests. Trial had before the court sitting w...
Views: 12
This is an application for leave to file a supplemental petition to an application for a writ of review of findings and an award of the Industrial Accident Commission of the State of California. The material facts are these: May 13, 1938, petitioner filed in this court a petition for a writ of review of the findings and award of respondent Industrial Accident Commission. June 24, 1938, pursuant to...
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28 Cal.App.2d 490 (1938) FRANK W. CAMPBELL, Respondent, v. CITY OF LOS ANGELES (a Municipal Corporation), Appellant. Civ. No. 11837. California Court of Appeals. Second Appellate District, Division Two. September 20, 1938. Ray L. Chesebro, City Attorney, Frederick von Schrader, Assistant City Attorney, and Leonard Husar and Bourke Jones, Deputies City Attorney, for Appellant. Thompson & ...
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Appellant is the owner and operator of a resort known as “Pop’s Willow Lake”, located in the foot *495 hills near Sunland, Los Angeles County. Among the facilities offered by him for the amusement of patrons are provisions for swimming and boating, for which purpose a lake is maintained which is divided into two sections by means of a rope barrier. On July 30, 1935, Francis William...
Views: 0
This is an appeal from a judgment in favor of the plaintiff in an action to cancel a trust deed on the ground of fraud. The respondent has asked, through a motion for diminution, to have brought up and used as a part of the record certain excerpts from the minute books of a corporation. It appears from the record before us and from a certificate of the trial judge that these excerpts were admitted...
Views: 2
The clerk’s transcript was filed in this court on August 2, 1938, and the reporter’s transcript on August 29, 1938. No briefs have been filed and no extension of time has been granted. The cause was on the calendar on September 20, 1938, and no appearance was made on behalf of the appellant. The motion made by the attorney-general for an affirmance of the judgment under section 1253 of the Penal C...
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This is a petition for a writ of prohibition prohibiting the Superior Court of San Diego County from proceeding further in a contempt proceeding and from imprisoning petitioner for contempt of court. Respondents have demurred to the petition. On May 3, 1934, petitioner and Harriet C. Ames were husband and wife. On that day they entered into a property settlement agreement which provided, among oth...
Views: 1
The clerk’s and reporter’s transcripts were filed in this court on July 25, 1938. No briefs have been filed and no extension of time has been granted. The cause was on the calendar on September 20, 1938, and no appearance was made on behalf of the appellants. The motion made by the attorney-general for an affirmance of the judgment under section 1253 of the Penal Code will be granted. The judgment...
Views: 0
Jean Cazaurang died in 1929, and some time thereafter, Marie Cazaurang was appointed special administratrix of his estate, and continued to act as such administratrix until her death in 1937. From the time of her appointment until her death, covering a period of several years, the respondent, A. M. Thompson, acted as her attorney for said estate, and as such rendered considerable legal sérvices fo...
Views: 0
This is an appeal from a judgment in favor of defendant rendered after the trial court had granted its motion for nonsuit. Plaintiff has moved for a diminution of the record by including in it a purported judgment dated December 7, 1937. This document can add nothing to the record and is not necessary to a decision of the case. (Southern Pac. R. R. Co. v. Willett, 216...
Views: 6
This is an appeal from an order refusing to tax plaintiff’s costs on appeal at nothing tor to order the clerk to withhold execution on a judgment for costs on appeal, and from the judgment taxing costs. The costs involved here were those of plaintiff in a former appeal in this case, Supera v. Moreland, Sales Corp. et ad., 13 Cal. App. (2d) 186 [56 Pac. (2d) 595], in which a judgment in favo...
Views: 7
This is an appeal by defendants in an action for damages. The plaintiff and respondent, while in the employ of appellants, undertook to replace an electric light bulb on the roof of appellants ’ service station^ and while doing so fell to the ground, a distance of about sixteen feet. Certain injuries sustained as a result of the fall, together with the alleged negligence of appellants, are the ba...
Views: 10
The respondent moves to dismiss the appeal from a judgment on an order sustaining its demurrer to the second amended complaint. Grounds of the motion are that no substantial question of law is involved, and that the appeal is taken for delay. The action is one for condemnation of real property of which the city alleges that it is the owner in fee, but that the defendant claims and asserts certain ...
Views: 0
An appeal was taken by the ward in an incompetency proceeding from the specific portion only of the order of the trial court confirming the referee’s report, sustaining the incompetent’s exceptions to the five annual accounts of her guardian, and settling the guardian’s accounts, which portion appealed from refused to allow the ward interest on certain items found to have been misappropriated by ...
Views: 1
This is an appeal from a judgment in favor of the defendants in an action upon a promissory note for $34,500, executed by the defendant, Southern California Home Building Company, a corporation, hereafter called the company, and guaranteed by the defendants, J. B. Coker and Regina W. Coker. They were president and secretary respectively, of the company and owned practically all of its capital sto...
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Defendant appeals from an order of the trial court directing the issuance of execution. The judgment was obtained by John J. Greeley in 1918. John J. Greeley died in 1923 and in 1937 the motion for the issuance of execution was made by his administratrix under the provisions of section 685 of the Code of Civil Procedure. The affidavit in support of said motion set forth that the judgment in the...
Views: 9
This is a motion to dismiss the appeal in the above-entitled case on the ground that appellant has failed to furnish this court with a proper record. Appellant has failed to supply this court with any record whatsoever. It also appears that the superior court has made an order terminating all proceedings in that court. Therefore, the motion is granted and the appeal is dismissed. Grail, P. J., and...
Views: 0
This case has been transferred by the Supreme Court to this court for decision and is an appeal by the cross-complainant Clyde McMurray from a decree of the trial court denying all her claims. *543 The case arises out of a controversy between the mother, Clyde McMurray, and the wife and children of a decedent, and concerns two trusts created by him during his lifetime. The cross-c...
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J.—This is an appeal from a judgment of the Superior Court of San Diego County removing defendant as a probationary teacher of the Oeeanside-Carlsbad Union High School District of that county. The conduct of defendant which formed the subject of complaint occurred in March, 1937. Therefore the 1937 amendments of the School Code are not involved here. Defendant presents several grounds for reversal...
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Plaintiff appeals from an order granting defendant's motion for a new trial in an action to *556 recover damages for the alleged alienation of the affection of plaintiff’s husband. The principal question presented is whether the evidence adduced at the trial was insufficient as a matter of law to support a verdict in plaintiff’s favor. Such question arises out of the following...
Views: 8
This case comes on after motion of respondents to dismiss for failure of appellant to file a transcript or brief. We find the motion is good and it is granted. Appeal dismissed....
Views: 0
This is a motion to recall the remittitur issued by the clerk of this court on July 14, 1938, and to strike therefrom the words, “Appellant to recover costs on appeal. ’ ’ Plaintiffs instituted an action in the Superior Court of Kern County to recover damages for breach of contract. They were awarded judgment in the sum of $10,158.24. Defendant appealed from the entire judgment and presented a com...
Views: 2
This is an action to recover savings bank deposits. After trial before the court without a jury judgment was given for plaintiff for the sum of $717.05. Defendant moved for a new trial, and as a result of the proceedings had pursuant thereto the court altered its findings, reduced the amount of the recovery to $32.05, and amended its judgment accordingly, from which amended judgment plaintiff has ...
Views: 0
Appellant, a chiropractor, was charged by information with the murder of Mrs. Elizabeth Sowers, who died from the effects of a criminal abortion, which the prosecution claimed had been performed by appellant. Upon trial before a jury he was found guilty of murder in the second degree, and from the judgment of conviction and the order denying his motion for new trial, he prosecutes this appeal. Ap...
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Appellant Jerome C. Hurley is the surviving husband of Winnie K. Hurley, also known as Alvina K. Hurley, who died on the ninth day of August, 1936, leaving property in the county of Los Angeles now subject to administration under a holographic will of decedent. Respondent Harry G. French, named as executor in the will, filed a petition for probate of the same. Appellant Jerome C. Hurley, survivin...
Views: 7
This is an appeal from a judgment entered on the verdict of a jury in favor of the plaintiff in an automobile collision case. The plaintiff’s decedent was proceeding on the highway on' San Fernando Boulevard in a hay truck, and while the hay truck was proceeding southerly on the highway and was on its right side of the highway and traveling at a speed of about twenty-five miles per hour, the defen...
Views: 15
The appellant was convicted in the Superior Court of Merced County of the violation of sections 470 and 476a of the Penal Code, a felony. The transcript on appeal was filed in this court September 8, 1938. No brief has been filed in behalf of appellant. The cause was regularly placed on the calendar for oral argument on October 3, 1938. No appearance was made for appellant at the time the case was...
Views: 0
This comes before us on a petition for a writ of mandate against the Los Angeles City High School District in which the petitioner asks this court to issue a writ requiring said school district to purchase certain school books directly from the publishers or their respective agents or designated depositories exclusively. *596 The petition alleges and the demurrer admits that the publisher a...
Views: 0
This is an appeal from an order finding that the appellant had been mentioned in and had been provided for in a will. The appellant is the child of a deceased child of said Henry M. Dixon, deceased. The only place that she was mentioned or provided for in the will is clause sixth thereof, which reads as follows: “If any devisee, legatee or beneficiary under this Will, or any person claiming und...
Views: 7
Plaintiffs herein are husband and wife. Defendant is the divorced wife of Matthew A. Palen, one of the plaintiffs. Defendant held unsatisfied separate judgments against the plaintiffs. She attempted to' levy execution upon these several judgments upon certain real property standing in the name of Mary Agnes Palen, whereupon Mary Agnes Palen brought this action to quiet title to the property, cl...
Views: 8
This is an appeal from a judgment in favor of the respondents, denying, in effect, specific performance of a written agreement between Mary E. Whitney, now deceased, and the appellant, wherein Mrs. Whitney agreed not to revoke a will and codicils thereto in so far as they related to property left to appellant. Herein, both the will and codicils will be referred to as the will. *611 ...
Views: 10
Plaintiff, at a jury trial, recovered judgment against defendant railroad company in the sum of $20,000 for personal injuries. The action is based on the *624 Federal Employers’ Liability Act (45 U. S. C. A. 51) and the Federal Safety Appliance Act (45 U. S. C. A. 11). In its “statement of issues’’, appellant presents the following questions arising on this appeal: (1) Whether...
Views: 2
The defendant was charged with burglary in entering the room of another person in the night-time with the intention of committing larceny. He was convicted of the crime of burglary of the first degree. From an order denying his motion for a new trial and from the judgment of conviction he has appealed. It is contended the evidence fails to support the verdict and the judgment for the reason tha...
Views: 9
The defendant was convicted of murder in the second degree upon a trial with a jury. He has appealed from the judgment and from the order denying his motion for a new trial. There is no question as to the sufficiency of the evidence to support the verdict. The defendant admitted the killing but claimed that it was accidental. The circumstantial evidence alone was sufficient to support the verdi...
Views: 10
Plaintiff sued for damages for injuries resulting from a piece of bone found in a meal served at defendant’s restaurant. The cause was tried by the court, and plaintiff had judgment for $500 general damages. The facts are undisputed; the only question involved is whether as a matter of law they constitute a breach of warranty, or negligence. Plaintiff ordered a “special plate” of roast turkey w...
Views: 13
The plaintiffs, husband and wife, obtained a judgment on a verdict for personal injuries suffered by the wife while riding with the defendant in the’ latter’s motor vehicle. The main cause of action relates to the circumstances under which the wife joined the defendant on the ride, and we will therefore refer to her as the plaintiff herein. The plaintiff and defendant were friends and neighbors...
Views: 2
Plaintiff sued as executor of the estate of E. A. Hurd for wages for services alleged to have been rendered the deceased, C. W. Burgess. The demurrer to the complaint was sustained and he has appealed from the judgment of dismissal. The complaint alleges: the claimant performed special services for the deceased as his personal secretary, in addition to her other employment, from December, 1904,...
Views: 4
Plaintiff, a certified architect, brought the within action to recover compensation for architectural services performed for defendant in the preparation of plans and specifications for a dwelling. The first two counts of the complaint are based on a written contract between the parties and the third count is on a quantum meruit. Trial was had before the court without a jury and plaintiff recovere...
Views: 0
Plaintiff, as the assignee, of Aaron Sapiro, sought to recover the sum of $2,200 from defendant, which sum was alleged to have become due to Mr. Sapiro “on an account stated for legal services rendered in the sum of $2500.00” of which it was alleged defendant had paid the sum of $300. The cause was tried by the court sitting without a jury and judgment was entered in favor of the defendant. Plaint...
Views: 0
An information was filed charging Frank Delgado and Nellie Delgado with the murder of Bernardo Soliz. Frank Delgado entered a plea of guilty and was sentenced to life imprisonment. Nellie Delgado entered a plea of not guilty and had a jury trial. The jury returned a verdict finding her guilty of murder in the first degree and fixing her punishment as life imprisonment. She appeals from the judgme...
Views: 9
By means of habeas corpus the petitioner seeks to obtain his release from state prison on the theory that he has served the term originally fixed by the prison board as a penalty for the crime of burglary of the second degree of which he pleaded guilty. For violation of his parole the prison board subsequently rescinded its original order fixing the period of his imprisonment at seven years and...
Views: 23
This case comes on for hearing on the motion of respondent to dismiss the appeal for failure of appellant to file a transcript or brief. We find that neither transcript nor brief has been filed and that no appearance has been made by the appellant. The motion is good and it is granted. Appeal dismissed....
Views: 6
This appeal is taken from judgments of conviction on one count of conspiracy to violate section 245 of the Penal Code and two counts of assault with a deadly weapon, and from an order denying a motion for a new trial. Appellant and his codefendant Holmes were tried before a jury which returned verdicts of guilty on all three counts. The principal contention raised by appellant is that the evide...
Views: 5
Petitioner, E. A. Gardner, seeks to review a decision, on rehearing, of the Industrial Accident Commission wherein petitioner was awarded certain compensation on account of a permanent disability sustained by him following an industrial injury. Two petitions have been filed, which have been consolidated. In said decision on rehearing it was found that the total present permanent disability suff...
Views: 14
This is a petition for a writ of prohibition to restrain the grand jury and the prosecuting officers of Sacramento County from obtaining possession by subpoena or otherwise of copies of petitioner’s income tax statements for the years 1935, 1936 and 1937, and from compelling a disclosure of the contents thereof, the originals of which are filed with the state and federal governments for taxatio...
Views: 14
Appellant, as trustee in bankruptcy of Reuben P. Underwood, commenced an action based upon an alleged destroyed promissory note, claimed to be dated January 1, 1929, for the sum of $9,600, and made, executed and delivered to the bankrupt. According to the allegations of the complaint the note was subsequently destroyed by respondent, without payment. From a judgment for respondent and an order de...
Views: 10
This is an appeal from a judgment that defendant Bieg-Hoffine Company take nothing on its cross-complaint against plaintiff. This is the second appeal in this case to come before this court. The preliminary facts are sufficiently detailed in the first opinion (Security Investment Co. v. Bieg-Hoffine Co., 15 Cal. App. (2d) 225 [59 Pac. (2d) 584]) and will not be repeated here. The sole question nec...
Views: 0
Respondent was severely injured in a head-on collision between an automobile in which he was riding as the guest of its driver, the appellant, and another automobile operated by the defendant Frank T. Clark. He sought, in this action, to recover damages from appellant upon the claim that he was guilty of wilful misconduct, and from such defendant upon the claim that he was negligent. The jury exo...
Views: 11
This is an appeal from judgments of dismissal after both general and special demurrers to the fourth amended complaint had been sustained without leave to amend. Appellant also attempts to appeal from the order sustaining said demurrers. Appellant sued respondents for damages for maliciously and without probable cause instituting a bankruptcy proceeding against her, having a receiver appointed an...
Views: 12
This is an appeal from a judgment in favor of the Ocean Sport Fishing, Inc., which operates a barge anchored in the Pacific Ocean off Huntington Beach as a fishing barge with accommodations to the public for fishing. The plaintiff alleges that the said company invited the public for a price to enjoy said privileges, together with transportation to and from the barge; that the plaintiff purchase...
Views: 2
Appeal from an order awarding respondents $5,000 attorneys’ fees based upon a petition by respondent attorneys entitled, “Petition for approval of contract of employment of attorneys.” Pierina D’Ambrosio is the mother of Marion Rose Garbini, a minor, and the former wife of Agostini Garbini. In 1920, Garbini and his wife Pierina entered into a separation agreement; Garbini then went to Italy, se...
Views: 2
The plaintiffs sued to recover damages aggregating $148,500 alleged to have arisen from the breaking of a levee during the high water period of February, 1936. The three plaintiffs are separate copartnerships each of which holds under a lease from the defendants J. 0. Franks Estate Company and the individual defendants comprising that company. The defendants are all the owners of the entir...
Views: 1
The defendant Therese E. Fieger appeals from a temporary injunction restraining her and the defendant telephone company from inserting in the telephone directory of that company published for Santa Clara County the words “Duplex Water Percolator Co.”, with the street address and telephone number added. The transcript on appeal was filed in the Supreme Court on June 5, 1937. Appellant’s brief wa...
Views: 6
The plaintiff herein, L. A. Fels, was charged by a complaint filed in the Justice’s Court of the City of Berkeley with having committed a misdemeanor, to wit, violation of an ordinance of that city. He was admitted to bail, entered a plea, of not guilty, and moved for a dismissal of the charge. The motion was denied, and thereupon he instituted the present proceeding in the superior court for a...
Views: 1
The defendant was charged with driving an automobile while under the influence of intoxicating liquor, with a prior conviction of the same offense, and, in a second count, with operating a motor vehicle while his operator’s license was suspended. He admitted the charge of prior conviction and pleaded not guilty to the other charges. A jury found him guilty on both counts and he has appealed from t...
Views: 8
By an indictment of the grand jury of Imperial County, containing fifteen counts, defendant was charged with fifteen violations of section 476a of the Penal Code. He was found guilty on fourteen counts and has appealed from the judgments pronounced upon him and from the order denying his motion for new trial. Count ten was dismissed. Defendant maintains that no count of the indictment states fa...
Views: 10
This case comes on for hearing upon motion of the respondent to dismiss the appeal because of the failure of appellant to file a transcript of the record or brief within the time required by law. It has accompanied the motion with a certificate of the clerk of the superior court showing that no record herein has been prepared by him. The motion is good; the appeal is dismissed....
Views: 0
This is an appeal by an intervening bondholder from a judgment in an action to quiet title to some 13,000 acres of land, divided in 29 separate tracts lying within the boundaries of Reclamation District 108 and assessed to River Farms Company of California, a corporation. Reclamation District 108 comprises approximately 57,000 acres lying principally in Colusa County, but with a part in the county...
Views: 0
This is an appeal from an order extending a previous order postponing a sale under a deed of trust. All of the material facts in this ease are similar to those in the case of Anna L. Hartman v. Bank of America, Civil No. 2079, this day decided (ante, p. 98 [82 Pac. (2d) 39]). The questions at law presented in the two cases are identical. For the reasons given in the ease referred to the order appe...
Views: 0
Plaintiff seeks to recover from defendants upon their statutory liability as directors of a corporation under the laws of the state of Montana. Plaintiff has appealed from a judgment entered after the trial court sustained the defendants’ demurrer without leave to amend. The facts in the present action are the same as the facts in Interstate Lumber Co. v. Tweedy, this day decided (ante, p. 208 [82...
Views: 6

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