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All Reporters → cal-app-lexis → Volume 1949

Opinions in cal-app-lexis Volume 1949

This controversy arises out of additional personal income tax assessments levied by the defendant Franchise Tax Commissioner against each of the plaintiff taxpayers J. L. and J. Z. Todd. The additional taxes were paid under protest and separate claims for refund were filed by each of said taxpayers. After a hearing before the commissioner the claims were denied and separate actions for recovery...
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The respondents move for a dismissal of the appeal on the ground that the order from which the appeal is taken is not an appealable order under the provisions of section 963 of the Code of Civil Procedure. In an action pending in the Superior Court in Santa Clara County the appellant moved under section 170 of the Code of Civil Procedure to disqualify one of the judges of *519the local court. Disq...
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89 Cal. App. 2d 520 (1949) MARC SILVER, Plaintiff, v. JOSEPH SHEMANSKI, as Executor, etc., Defendants. Civ. No. 16425. California Court of Appeals. Second Dist., Div. One. Jan. 6, 1949. Kenneth J. Murphy and Joseph W. Ryan for Appellant. Benjamin & Lieberman, Benjamin & Kronick, in pro. per., Bodkin, Breslin & Luddy, S. V. O. Prichard and Wiseman & Elmore for Respondents. WH...
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This is an action to recover a deficiency on a trust deed note executed by Harriet Ogilvie and payable to plaintiff California Bank. The note and trust deed were executed on October 19, 1933. The trust deed was foreclosed by exercise of the power of sale on December 16, 1941, Harriet Ogilvie died on or about October 11, 1941. Marshall Stimson was thereafter appointed, qualified as administrator...
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This is an appeal from a judgment entered in a proceeding by the People of the State of California to *558 forfeit the interest of the registered and legal owners of a 1937 Buick automobile upon the ground that the vehicle had been used to unlawfully transport marijuana. (Health & Saf. Code, §§ 11610 to 11629.) Both the registered owner and the legal owner have appealed from the ju...
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89 Cal.App.2d 563 (1949) Estate of MINNA SARA POHLMANN, Deceased. WILLY POHLMANN, Appellant, v. LUCIE NASCHEL, Respondent. Civ. No. 16649. California Court of Appeals. Second Dist., Div. One. Jan. 6, 1949. Joseph Scott, J. Howard Ziemann and Cuthbert J. Scott for Appellant. Joe Orloff and Morris J. Pollack for Respondent. WILSON, J. assigned. This proceeding was instituted by respondent Lu...
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Plaintiffs appeal from a judgment for the defendant county of Orange following an order sustaining a demurrer to the complaint without leave to amend. The action was brought to recover taxes paid under protest. The facts admitted by demurrer are that each of the 19 plaintiffs is a sublessee of a lot in the area known as Beacon Bay, in Newport Beach, Orange County. The taxes protested were ...
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Appeal by defendant from a judgment after a jury verdict in favor of plaintiff in the sum of $20,659.51. 1 Grounds of appeal: (1) insufficiency of evidence; (2) alleged errors in admission of evidence; (3) alleged abuse of discretion in denying motion to amend, and (4) in denying motion for new trial; and (5) error in giving certain instructions. Pleadings There are three...
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89 Cal. App. 2d 604 (1949) BRUCE BROWN, a Minor, etc., Appellant, v. SEQUOIA UNION HIGH SCHOOL DISTRICT, Respondent. Civ. No. 13764. California Court of Appeals. First Dist., Div. Two. Jan. 7, 1949. Jos. P. Lacey and Bullock, Wagstaffe & Daba for Appellant. Wayne R. Millington for Respondent. DOOLING, J. In an action for personal injuries Bruce Brown, a student in Sequoia Union High Sc...
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Appeal by plaintiff from a judgment in favor of defendants after an order granting a nonsuit in an action for damages for personal injuries. The sole issue presented is the correctness of the court’s order granting the nonsuit. *607 Facts Having in mind that this court must accept as true all evidence tending to establish plaintiff’s case and reject all which tends to disprove it, and indul...
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This is an appeal by Bradley Ludlow from an order made after judgment awarding the custody of Barbara Ludlow to her mother, Margaret Ludlow Vess. In June, 1938, Margaret, as plaintiff in an action for divorce, was awarded a decree and the custody of the daughter, Barbara, then less than 2 years of age. Defendant was ordered to pay plaintiff $8.00 per week for 31 weeks and thereafter $6.00 per wee...
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The defendant was convicted on a charge of burglary, with prior convictions. On appeal, the judgment and an order denying a new trial were affirmed. (People v. Bashaw, 80 Cal.App.2d 974 [183 P.2d 41].) Thereafter, he filed in the trial court a petition for a writ of error *619coram nobis. A hearing was had at which the defendant was present, representing himself. An order was entered denying his p...
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The appellants’ statement of the facts is concise and accurate, so far as it goes, and is, in part, as follows (App. Op. Br. p. 2) : “On September 17, 1946, the plaintiff’s assignor obtained a judgment by default against the defendants Jacob Steur and Marie Steur for the sum of $115,273.80. An execution was issued on said judgment, and pursuant to instructions from plaintiff’s counsel, the...
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This proceeding was brought to review an order of the commission which dismissed petitioner’s application for compensation on the ground that the case is exclusively within federal jurisdiction. Petitioner was a materialman employed from March, 1943, until December 10,1945, by respondent Kaiser Company, Inc., at its Shipyard No. 3. His work during that time was entirely on shore (or on ships under...
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J. — Defendant was accused of keeping and occupying certain premises containing books, papers and paraphernalia for the purpose of recording and registering bets and wagers upon the purported trial and contest of skill and speed of beasts, to wit, horses. (Pen. Code, § 337a, subd. 2.) A second count charged the recording and registering of bets upon the result and purported result of a trial and c...
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89 Cal. App. 2d 645 (1949) ELLA SIPPERLY et al., Respondents, v. SAN DIEGO YELLOW CABS, INC. (a Corporation) et al., Appellants. Civ. No. 3906. California Court of Appeals. Fourth Dist. Jan. 12, 1949. DeWitt A. Higgs and C. Guy Selleck, Jr., for Appellants. Johnson & Johnson and C. Ashley Johnson for Respondents. GRIFFIN, J. Defendants San Diego Yellow Cabs, Incorporated, a public carr...
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This is an appeal by defendant in a negligence action from a judgment on a verdict for plaintiff in the amount of $4,500. Respondent was injured on July 25, 1946, at the Key System terminal in Richmond, where, when she tried to change busses, her abdomen struck a guardrail along the curb in front of the loading platform. Her theory of the accident, to which she testified, was that the bus she wish...
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The two petitions present the same issue. Two actions were filed for the collection of contributions under the Unemployment Insurance Act [Stats. 1935, p. 1226, as amended; 3 Deering’s Gen. Laws, Act 8780d]—one in June, 1942, the other in February, 1943. Summons in each case was served February 24, 1948. Petitioner moved to dismiss both actions on the grounds mentioned in section 581a of the Code...
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It appears from the record herein that the last will of Helen Montgomery, deceased, was admitted to probate on October 28, 1946, and that letters testamentary were issued to Bernice Jackson, who was named in the will as executrix thereof. Thereafter, to wit: on July 21, 1947, Isabelle McKenzie, the mother of decedent, filed her petition for a decree determining the interests of parties involved in...
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This appeal is from an order of the superior court discharging a writ of review and remanding the cause to the State Board of Equalization, made after a judgment in favor of that board. The sole question involved is the power of the court to make such an order. Facts There is no dispute concerning the facts. The case arose out of a proceeding brought in the State Board of Equaliza*675tion1 against...
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89 Cal. App. 2d 683 (1949) TILLIE STUART, Appellant, v. GRACE B. DOTTS et al., Respondents. Civ. No. 13884. California Court of Appeals. First Dist., Div. One. Jan. 17, 1949. Palmquist & Sugden and Stanley C. Smallwood for Appellant. Dana, Bledsoe & Smith for Respondents. WARD, J. Plaintiff in a personal injury action appeals from a judgment after verdict by a jury in favor of defe...
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In this action, under the provisions of the Emergency Price Control Act of 1942, as amended, to recover three times the amount of an overcharge (in excess of the lawful *689 maximum or ceiling price) for an automobile, and to recover attorney’s fees, plaintiff obtained judgment for $1,778.49 as treble damages, $250 as attorney’s fees, and $43.56 costs. Defendant appeals from the ju...
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Defendant was charged with and convicted by a jury of committing lewd and lascivious acts on the body of a child of the age of 7 years, on or about March 2, 1948. During the opening statement to the jury the prosecuting attorney remarked that defendant committed the offense on two different occasions. He described the first alleged offense and then added that “the second incident was very similar...
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This is an action on contract for personal services. Plaintiff was engaged as a baby nurse by Bette Sherry, also known as Bette Davis. The term of employment was for a period of six months, beginning at the time of the birth of defendant’s child, May 1, 1947. It was agreed that plaintiff was to be compensated for her services at the rate of $60 per week and in addition was to receive her “room,...
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This is an ordinary action to quiet title. Plaintiff claims to be the owner and entitled to possession and that defendant asserts some title and interest in and to the property involved. He asks that defendant be required to set forth his claims and that title be determined. Defendant answered and set up certain deeds and claimed title thereunder. Prior to 1920, Boaz Duncan was the record ...
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In the within action for divorce plaintiff appeals from that portion of the judgment approving a property settlement agreement and as well from that portion which determines, “that there was no community property belonging to the parties.” The complaint alleges, “that during the marriage of the parties and while they were living together, and on or about the 1st day of February, 1945, defendant de...
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Respondent moves to dismiss the appeal on the ground that the order appealed from is not an appealable order. In the within estate of Marion McPherson, deceased, the decedent’s mother, respondent herein, executed a document whereby she waived all rights of inheritance in said estate and requested the probate court to distribute her share of the estate to one of her daughters, appellant herein. ...
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From a decree determining that Henry I. Scott, the surviving spouse of Shirley E. Scott, deceased, is entitled to the estate of said decedent, petitioner Goldie Koutnik appeals. Facts Shirley E. Scott died intestate at Los Angeles on January 14, 1947, leaving a surviving spouse, Henry I. Scott. She left neither issue, parent, brother nor sister, nor descendant of a deceased brother or sister....
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From a judgment of guilty of violating section 286 of the Penal Code (the infamous crime against nature), predicated upon defendant’s plea of guilty to such charge before the committing magistrate, defendant appeals. There are also appeals from the denial of defendant’s motions to (1) withdraw his plea of guilty, and (2) vacate the judgment committing defendant, allegedly without probable cause o...
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After trial, without a jury, judgment was entered decreeing plaintiff to be the owner of' a life estate in certain real property, and ordering defendants to return to plaintiff certain personal property. Defendants appealed. Questions raised; (1) Did the second amended complaint state a cause of action? (2) Did defendant Herbert Edwards1 acquire and hold the property in trust for plaintiff as life...
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— Respondent (defendant), Hair Experts, Incorporated, moves to dismiss this appeal from an order, (1) vacating and setting aside the default, and (2) quashing service of summons upon said respondent, for the reason that such an order is not appealable. This proposition is tenable and is governed by these rules: (1) An order granting a motion to set aside a default before a jud...
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Gabrielle Volker Baldwin, to whom decedent bequeathed a life estate in certain real property, has appealed from the judgment which denies to her the rentals derived from the property. The attorneys for the executrix of decedent’s will have appealed from the judgment denying extraordinary attorneys’ fees. The portion of the will necessary to a determination of the Baldwin appeal reads as follows: “...
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Plaintiff filed an action in claim and delivery for the recovery of cattle allegedly in the possession of defendant. At the conclusion of the trial the complaint was amended, with the approval of the court, to conform with the proof and to allege conversion. Plaintiff recovered a judgment in the sum of $3,185.76 and this appeal is from the judgment. There is a purported appeal from the order deny...
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Defendant was charged with the crime of manslaughter, the killing without malice of one Cuba McCaskill. Trial by jury was waived. The court found the defendant guilty as charged, denied her motion for a new trial and sentenced her to imprisonment in the California Institution for Women. This appeal is from the judgment of conviction and from the order denying a new trial upon the grounds that the ...
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90 Cal. App. 2d 61 (1949) FRED W. HIGNELL, JR., et al., Respondents, v. ALLIE GEBALA, Appellant. Civ. No. 13906. California Court of Appeals. First Dist., Div. One. Feb. 10, 1949. Nathan G. Gray and C. Leonard Rosenberg for Appellant. John Charles Houlihan for Respondents. BRAY, J. Plaintiffs were awarded a judgment for restitution of premises, attorney's fees, and declaring a forfeiture o...
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This is an action by a contractor for the foreclosure of a mechanic’s lien. Plaintiff contracted to erect a market building on land owned by defendant. All of the defendants named as having some right, title or interest in the premises appeal from the judgment in favor of plaintiff. The complaint alleges a verbal contract to erect the building ; that all materials were furnished and the labor p...
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Defendant appeals in propria persona from a judgment on a verdict finding him guilty on three counts of robbery of the first degree. He also appeals from the order denying him a new trial. In his opening brief the appellant did not question the sufficiency of the evidence on any one of the counts. Two points were raised by him: (1) The sufficiency of the allegations of the information, and (2) ...
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This action was brought by plaintiff to recover from defendant a platinum ring set with diamonds, a gold brooch set with diamonds, and the sum of $2,890.28 alleged to have been loaned to her by plaintiff. The court found that he was not entitled to recover the brooch or the money; that the ring was given to defendant as an engagement ring; that defendant broke off the engagement with plaintiff and...
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Plaintiff claimed that he was induced by defendant to purchase a certain tractor and disc for $2,000, through false representations, that is (1) that the tractor had been recently overhauled; and (2) that it was in good mechanical condition at the time except for an oil leak; that plaintiff relied upon these representations and that defendant knew them to be false at the time made; that plaintiff ...
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The defendants were jointly charged with violations of section 11500 of the Health and Safety Code. In the first three counts they were charged with the possession of narcotics, the respective counts charging possession of morphine, opium and cocaine. In the fourth, fifth and sixth counts, respectively, they were charged with the transportation of these drugs. On the last night in February, 194...
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Respondent herein, Luigi Riccardi, on December 3, 1945, received an injury compensable under the Workmen’s Compensation Act, when a bandsaw with which he was working broke and a small piece of steel lodged in the wall of his heart between the right and left ventricles. It is impossible to remove this metal as the chances of Riccardi surviving such an operation would be only about 5 or 10 per cent....
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On January 26, 1944, an indictment was filed against appellant charging four separate violations of section 288a of the Penal Code. He entered pleas of not guilty, and not guilty by reason of insanity. On March 22, *104 1944, a trial jury convicted him of the offenses charged, but disagreed on the issue of insanity. A petition was then filed by appellant’s sister alleging that defendant was a...
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Defendants demurred generally and specially to plaintiff’s first amended complaint. The trial court sustained the demurrer, and granted plaintiff 10 days to amend. *108Plaintiff failed to amend, and judgment was entered for defendants. Plaintiff appeals. The law applicable to such an appeal is well settled. “A plaintiff who has declined to amend his complaint, after a demurrer sustained, which is ...
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Defendant was charged by an information with assault with a deadly weapon with intent to commit murder, and also with two prior convictions of felonies (grand theft and breaking and entering with intent to steal), and service of terms therefor. He admitted the priors and .pleaded not guilty to the main charge. He was tried before the court without a jury and found guilty of the lesser and include...
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In an amended information filed by the District Attorney of Los Angeles County, defendant Jesse Houston, together with Fred Anthony, was charged with three counts of robbery and three counts of assault with a deadly weapon with intent to commit murder. Such information further charged that at the time of the commission of said offenses, defendants were armed with deadly weapons, to wit: two revol...
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This is an appeal by Mr. and Mrs. David E. Fleshman, guardians of Nicholas K. Boulad, a minor, from an order revoking letters of guardianship and granting the custody of the minor to his mother, Mrs. Mary Colombo. It is to be noted at the outset that respondent, Mrs. Colombo, has failed to furnish this court with any brief or argument in support of the order of the trial judge, but on the contrary...
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Petitioners Melvin Y. DeMartini and Lloyd J. DeMartini seek annulment of an award made by respondent Industrial Accident Commission against them in favor of William Pasquinelli, applicant and respondent. Applicant by a separate petition seeks annulment of the same award on the ground that it exonerates the insurance carrier, respondent National Automobile and Casualty Insurance Company. On...
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This is an appeal from an order denying a motion for a new trial made under section 953e of the Code of Civil Procedure. The action involved the right to use certain channels and ditches, and the manner of handling certain excess flows of water. There were several groups of parties with conflicting interests. The judgment enjoined *153 the Persian. Ditch Company and certain individ...
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By the prayer of their complaint plaintiffs seek an accounting and dissolution of partnership. Defendant owned a livestock auction business known as the W. A. Thompson Auction Sales Yard. About July 1, 1945, plaintiffs bought a 40 per cent interest therein for $28,000. Five thousand dollars was paid down. Plaintiffs and defendant thereafter conducted the partnership business. In October, plaintiff...
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By their amended complaint plaintiffs seek recovery of $2,000 under a written purchase agreement signed by the parties, dated January 7, 1946, and properly pleaded. It recites that defendant Mathews, as seller, agrees to sell and deliver to plaintiffs, doing business as the Visalia Poultry Products Company, 1,000 turkeys between May 15 and May 30, 1946, and acknowledges receipt of $2,000 as “gu...
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A motion by defendants for a summary judgment based on the amended and supplemental complaint, the answer and counterclaim and affidavits, was granted. While plaintiff’s notice of appeal, headed “Notice of Appeal by Plaintiff Hans Haumeder from Summary Judgment,” reads that the appeal is “from the order entered herein ... on *170 the 27th day of April, 1948, granting the Motion of ...
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A writ of habeas corpus was issued by the court upon the application of Inez Dean, the paternal grandmother of Leslie Scott Swindall, a minor. The minor is the issue of the marriage of Leslie Elmer Swindall, and Leila *178(sometimes referred to as Lela) Hazel Swindall. By the terms of a decree of the Circuit Court of the State of Oregon for Multnomah County, on May 31, 1944, dissolving the marriag...
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This is the second appeal in an action for specific performance of a contract to convey real property. Respondents having refused to consummate their agreement to sell an apartment house to appellant, he instituted this action for specific performance. An adverse judgment was reversed upon appellant’s first appeal with instructions to the trial court “to (2) take evidence upon the sole question of...
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From a decree denying plaintiff’s application for divorce and custody of her child she appeals. The couple separated in July, 1946, and on September 20, 1946, plaintiff filed her complaint for divorce alleging extreme cruelty and demanding custody of their child born October *186 11, 1945. The court found that respondent had not been guilty of extreme cruelty; that plaintiff had refused to le...
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This is an appeal from an interlocutory judgment decreeing specific performance against a vendor of realty. On October 6, 1945, appellant by written escrow instructions agreed to convey to respondent Lot 60 of the Mabery Heights Tract in Los Angeles County for $5,000. Pursuant to such agreement appellant executed her grant deed and delivered it into the escrow. On the same date as provided by the ...
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In September, 1946, respondent Huffman commenced an action against petitioners Dr. Lindquist and the Lutheran Hospital Society of Southern California for malpractice and negligence in the care and treatment of her deceased son for injuries which he had sustained in a collision with the automobile of respondent DeLand. In February, 1947, Huffman instituted a second action against DeLand and others ...
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About 10:30 p.m. on October 29, 1947, defendants entered the café of Teresa Boggio in a remote quarter of Los Angeles city, purchased and drank beer and departed. Teresa then locked her doors which she refused to open “a short time later” when the men returned. Cryder thereupon gained entrance through the rear, grabbed and choked Mrs. Boggio. Although he made no demands, she screamed and escaped ...
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90 Cal. App. 2d 205 (1949) THE PEOPLE, Respondent, v. CHARLES V. KROUT, Appellant. Crim. No. 4281. California Court of Appeals. Second Dist., Div. Two Feb. 16, 1949. Charles V. Krout, in pro. per., for Appellant. Fred N. Howser, Attorney General, and Dan Kaufmann, Deputy Attorney General, for Respondent. MOORE, P. J. Pursuant to all constitutional guaranties, legal forms and statutes in su...
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Plaintiffs brought this action for breach by defendants of an alleged agency contract whereby plaintiffs were to buy, weigh, load, pack and ice sardines for defendants, - and were to receive a fixed sum per pound for their services. Defendants denied the major allegations of the complaint, including those relating to the claimed agency, contending that the transaction was in fact a sale, and cros...
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At about 5:15 o’clock on the afternoon of September 10, 1946, plaintiff Rose Stark was a passenger in a taxicab of defendant Yellow Cab Company which was being driven in a westerly direction on Temple Street in the city of Los Angeles by defendant Ted Carlson. The weather was clear and traffic was light. At the intersection of Vendóme Street the driver brought the cab to a stop before the east ...
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Plaintiff appeals from a judgment refusing to quiet her title to a parcel of real property. On November 1, 1940, plaintiff and appellant, Gertrude Bodem, and her husband entered into a written contract with defendants and respondents Friedman and Hays for the sale of the real property to respondents for $5,132. Two hundred and eighty-two dollars was paid on the execution of the contract and the b...
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This is an appeal from an order denying a motion to vacate, recall and quash a writ of execution which had been issued in enforcement of a judgment entered pursuant to an agreement made in settlement of certain litigation. It is the contention of appellants that the agreement was modified by certain amended escrow instructions, that the *230judgment should have been modified to conform thereto, th...
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Plaintiff, as the assignee of one L. S. Hutchinson, hereinafter referred to as “mortgagor,” instituted the present action to, recover the value of certain personal property described as “1 Caterpillar, Model D8” etc., and “1 Woolridge Scraper” etc., alleged to have been converted by the defendants Durston and Spicer, the latter claiming under a chattel mortgage from Hutchinson. It appears that pri...
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From a judgment in favor of plaintiff after trial before a jury in an action to recover damages for personal injuries received as the result of plaintiff’s being hit by an automobile driven by the agent of corporate defendant, the latter appeals. The record discloses that the above entitled action was tried before a jury and a judgment returned in favor of plaintiff against the corporate defend...
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From judgments of guilty on two counts of violating section 2741 of the Penal Code (employing means *245to procure miscarriage), after trial before the court without a jury, defendant appeals. The record discloses these facts: By stipulation of counsel, defendant personally consenting thereto, the People’s case was submitted on the transcript of the preliminary examination. The People having reste...
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The defendant was charged in two counts of an information with lewd and lascivious acts committed on April 1, 1948, upon two sisters, aged respectively 9 and 10 years, contrary to the provisions of section 288 of the Penal Code. The defendant failed to take the witness stand in his own behalf. The jury convicted him on both counts. He was sentenced to state prison for the term prescribed by law. ...
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J.—This This is an appeal from a judgment of the Superior Court of Tulare County issuing a peremptory writ of mandate ordering the State Board of Equalization to set aside its disciplinary order whereby the liquor licenses held by petitioners were to have been suspended for a period of 30 days. Petitioners are the owners and operators of a restaurant and café in Porterville and are holders of...
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This is an appeal from an order granting a new trial. It appears without dispute that the parties entered into an oral agreement by which two of the plaintiffs were to take charge of and operate a cattle ranch owned by the defendant, and he was to give them $100 a month, furnish them a house in which to live, furnish eggs, butter and milk for them and for the family of Williams, and give them one-...
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This is a petition for a writ of review of an award of death benefits to the widow of Ira Paul Gabbert, who died on November 27, 1947, survived by his said widow and three minor dependent children. The respondent commission found that on or about October 27, 1947, decedent, while employed by the Carl Howe Lumber Company as a rigger, sustained injuries occurring in the course of and arising out of ...
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This is an appeal by defendant corporation from a summary judgment in favor of plaintiff and his assignors in an action based on the common count of money had and received by defendant for the use of plaintiff and his assignors. It appears from the record herein, that appellant, a regularly licensed broker, sold to respondents in the regular course of business, 580 shares of the common sto...
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The sole question presented by this appeal from the judgment is whether the sum of $20,000 damages awarded by the jury is excessive. Plaintiff and respondent, married and the father of two children, was a fireman employed by defendant and appellant railroad company. He was injured on December 18, 1946, at Lund, Utah. Plaintiff was standing on top of the tender of an engine taking on water when the...
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On October 3, 1946, Walter E. Carr was struck by an automobile driven by defendant, Melvin Wilson Duncan, sustaining injuries which caused his death. This action was instituted by Ethel Carr (now known as Ethel Hayn) as general guardian of Douglas E. Carr, minor son of decedent, to recover damages for the alleged wrongful death. Ethel Carr is the mother of the minor, Douglas E. Carr, and was form...
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Plaintiff, as administrator of the estate of Zaida Bogan, deceased, had judgment for $24,000 against defendant following a jury’s verdict. The defendant had made a motion for nonsuit and after the return of the verdict against him made a motion for judgment notwithstanding the verdict which was denied. From the order denying the motion for judgment notwithstanding the verdict defendant has appe...
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90 Cal. App. 2d 295 (1949) C. C. PURVIANCE, Respondent, v. L. K. SHOSTAK, Appellant. Civ. No. 7561. California Court of Appeals. Third Dist. Feb. 23, 1949. Leland S. Fisher and Brantley W. Dobbins for Appellant. Frank W. Taft and Walter K. Lock for Respondent. ADAMS, P. J. The findings of fact made by the trial court in this action recite that in November, 1943, plaintiff and defendant ent...
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Inez Rose filed in this court on September 20, 1948, a petition for a writ of habeas corpus, alleging therein that she was being restrained of her liberty illegally by Carlos A. Sousa, Sheriff of San Joaquin County, by reason of an alleged warrant, copy of which was attached to the petition and marked Exhibit “A”; and that she had been imprisoned since the 1st day of September, 1948. She averred t...
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This is an appeal from a judgment of dismissal after the granting of a motion for a nonsuit. The *306action-was one for damages arising out of the collision of two automobiles which occurred on July 12, 1946, at the intersection of Central Avenue and Jackson Street, two country roads near Wasco. Central Avenue runs north and south and Jackson Street runs east and west. Bach road was 40 feet wide b...
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Plaintiff, Madeleine Landau Rosenthal, brought this action against her former husband, John Arthur Landau, to quiet her title to a piece of improved real property in San Francisco. Defendant answered and cross-complained, praying that plaintiff be declared a constructive trustee of the property, and that she be compelled to convey it to him. The trial court determined all issues in favor of pla...
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Appellants sued to quiet title to a piece of improved real property in Daly City. Judgment went in favor of defendants, quieting the title of respondent Home Development Company, and this appeal was taken. When the property was acquired by respondent Van Cleve she borrowed $4,200 from respondent Cassaretto and gave a deed of trust which was recorded on January 23,1945. Early in July, 1945, negotia...
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Appellant, a former employee of respondent Bethlehem-Alameda Shipyard, Incorporated, sued that company and respondent Shosted, its personnel manager, for wrongful discharge. A demurrer was sustained with leave to amend, and when appellant declined to do so judgment was entered for defendants for costs. This appeal followed. Section 695 of the Elections Code reads; “Any election officer may...
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90 Cal. App. 2d 326 (1949) THE PEOPLE, Respondent, v. ALTA ANDERSON et al., Appellants. Crim. No. 2522. California Court of Appeals. First Dist., Div. Two. Feb. 25, 1949. Albert A. Spiegel for Appellants. Fred N. Howser, Attorney General, and Clarence A. Linn, Deputy Attorney General, for Respondent. GOODELL, J. By an indictment in four counts the defendants Anderson, Rodley and Jenkins we...
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Appeal by defendants from a judgment rendered against them in an action brought by plaintiff for breach of an implied warranty of fitness under section 1735, subdivision (1) of the Civil Code in the sale of a carload of corn. Plaintiff is engaged in the business of manufacturing tortillas. Defendants, Plant Food Corporation and Gordon Williams, its agent, are grain brokers. *338 ...
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Plaintiffs herein, numbering 25 individual and one corporate property owners whose properties Re within 3,000 feet of 115 acres of land owned or leased by defendant Gregg, instituted this action to have declared unconstitutional and void the action of the council of the city of Los Angeles whereby, on October 2, 1946, said council granted to defendant Gregg a variance permit (in reality a condi...
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Respondents, William E. Weatherford and Mary E. Weatherford, husband and wife, are owners of a transfer and storage business which they operate under the fictitious trade names of Ford Van and Storage, Ford Moving and Storage, Ford Van Lines and Ford Transfer and Storage. They brought an action against appellants Charles W. Eytchison, Arthur L. Eytchison and Claude V. Eytchison, doing *3...
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On October 31, 1925, the defendant issued its policy of life insurance in the sum of $50,000 on the life of John H. Happoldt. On January 20, 1926, the defendant issued its additional agreement for indemnity benefit of $25,000 for death from accident, which agreement was attached, as a rider, to said policy of life insurance. The plaintiff, who is the widow of the insured, is the beneficiary nam...
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This is an appeal from a judgment in favor of defendants, after a jury trial, in an action for the wrongful death of plaintiffs’ daughter who sustained fatal injuries when the car in which she was riding as a guest collided with a truck being driven by defendant Renner. The accident happened at about 6 o’clock p. m., December 26, 1945, on Ventura Avenue, near DeWolf Avenue, in Fresno County. Sh...
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Plaintiff appeals from a judgment rendered in favor of defendants in an action to foreclose a mechanic’s lien. Plaintiff, a licensed contractor entered into an oral agreement with defendants Victor Slayman and Jennie Slay-man to construct a residence and garage on property of the defendants in the city of Lindsay. Plaintiff alleged that under the agreement he was to furnish all material and labor ...
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From a judgment in favor of plaintiff after trial before the court without a jury in an action to recover on a rejected claim filed in the estate of Bessie O’Connor in which defendant is executor of the last will and testament, defendant appeals. *417Facts In December, 1943, plaintiff was a resident of the State of Ohio and Bessie H. O’Connor, now deceased, was a resident of the State of Californi...
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Action to set aside conveyance and quiet title. Plaintiff and appellant Frank Reina was the husband of Lizzie Reina, now deceased. They were the parents of defendants Samuel Reina, Josephine Reina, Rose Erassarret, Frances Argain, and John L. Reina. According to plaintiff’s complaint, on August 27, 1946, he and his wife owned, in joint tenancy, certain real property located in Kern, Fresno, and...
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On July 16, 1946, respondent Mayme Yoll Balkema and appellant Walter Deiches executed an agreement in writing whereby said respondent sold to appellant a ladies’ wearing apparel business known as Gibson’s Style Shop located in Long Beach, California, together with the assets and good will thereof. The agreement recites that the seller owns such business and her husband, the other respondent herei...
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This is an appeal from the decree settling the first account of the executor of the Last Will and Testament of Joseph Upham Pearson, deceased, and from the order for partial distribution. Particularly the appellant attacks that portion authorizing the executor to deduct the amount of the inheritance tax due the State of California, as well as the prorata share of the federal estate tax from the p...
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This is an action to recover one-half of the proceeds resulting from a joint venture between the plaintiff and the defendant Raymond E. White, who will be referred to as the defendant and appellant. On October 13, 1945, the defendant obtained from one Dodini a lease on certain property in the Helm field in Fresno County. On October 15, 1945, he assigned this lease to Pacific Western Oil Co...
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Having been adjudged in contempt of court on February 1, 1949, for nonpayment of $335 as alimony, $150 as attorneys’ fees, and $15 as court costs, John Diggs filed a petition for writ of habeas corpus on the ground that his commitment is invalid as the court did not find that he wilfully or contemptuously refused to comply with the court’s orders. Pending hearing in this court petitioner was relea...
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The complaint herein alleges that during the month of December, 1945, a contract was entered into whereby the defendant builders agreed to construct for plaintiff a unit of store buildings and living quarters on a lot owned by plaintiff in Sherman Oaks, at an agreed price of $23,690. It was further alleged that in January, 1946, plain*454tiff approved completed plans for such building, and made a ...
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This is the third of a series of appeals arising out of the prior litigation between the same parties (see Erickson v. Boothe, 79 Cal.App.2d 266 [179 P.2d 611]; Erickson v. Boothe, * (Cal.App.) [203 P.2d 119],) to which reference is made for the background of this appeal. On October 28, 1948, defendant Boothe filed a notice in the trial court for an order to compel Mazie Erickson, ind...
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In her action for damages for false imprisonment plaintiff alleged and proved that after purchasing a pair of gloves at a counter in the “White House” she asked the clerk for a shopping bag to carry an extra sweater she had worn on entering the store. Having placed the sweater and the gloves in this bag with her sales slip she left the store and was followed for some distance along the public s...
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For the reasons hereafter set forth, we adopt as the opinion on this rehearing the opinion previously filed. It reads: “Appeal by defendants Ocean Shore Bailroad Company, a corporation, Harry W. Cole and George Middleton, individually and as surviving partners of that certain partnership known as ‘Selah Chamberlain Associates’ from a judgment awarding defendants Lillian A. Krobitzsch et al...
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Plaintiffs and respondents recovered judgment in an action for rescission of a contract whereby they purchased from defendant and appellant, for $3,000, the business known as “Joe’s Coffee Bar” on West Third Street in the city of Los Angeles. The trial court found that during-the negotiations the defendant falsely represented that he was grossing between $50 and $75 per day, which representation ...
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The present action sought to recover from the defendants, husband and wife, a total sum of $2,-401.24. The first cause of action was based upon the theory of a constructive trust; a second count was for money had and received. Defendants answered by way of a general denial. The trial court found in favor of the plaintiff in the amount of $1,000 and entered judgment accordingly. It appears from the...
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Defendant appeals from a judgment in favor of plaintiffs in an action for injunction and damages. Plaintiffs are the owners of real property in Kern County. The grant deed to them, dated April 5, and acknowledged May 8, 1944, contained the following reservations: “Subject to existing oil and gas leases as of record and the Grantors herein reserve all things of value to be paid by said Lessees...
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Defendant was charged with the crime of perjury in a complaint filed in the Municipal Court in the City of San Diego. A preliminary hearing commenced on May 11, 1948, was continued four times to June 3, 1948, on which date it was concluded and the defendant held to answer to the superior court. The information charging the defendant with perjury was filed in the superior court on June 16, 1948....
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In an information filed by the District Attorney of Los Angeles County, defendant was charged with a violation of subdivision 2 of section 337a of the Penal Code, which denounces as a crime, among other things, the keeping or occupancy for any period of time whatsoever, of any room, tenement, etc., with books, papers or other devices or paraphernalia for the purposes of recording or registering b...
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Upon discovery that a deceased employee (Robert A. Bailey) over a period of several years had embezzled approximately $45,000 of their funds, plaintiffs sued *502 defendant, Irene Bailey, the wife of the employee, individually and as administratrix of his estate to impress a trust upon property purchased with part of the misappropriated money. Also an action was brought by plaintiffs against Mr...
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This is an appeal from an order denying a motion for a new trial following a judgment, of guilty of violating section 288 of the Penal Code, after trial before the court without a jury. Viewing the evidence most favorable to the People (respondent) the essential facts are: In May, 1948, defendant took a female child of the age of 7 years into his dark room where he developed photographic nega...
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In June, 1942, Jessie Northrup brought suit against John and Susan Wight for $2,500. On February 9, 1943, the day the trial commenced, Wight and his wife executed a note for $7,600 in favor of their daughter, Mildred Beadle, and a mortgage securing the note on a five-unit residential property in Whittier. Mrs. Northrup recovered judgment of some $2,900, and in 1945 purchased the property at exe...
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Lincoln A. Freeman and Molly Luke Freeman, husband and wife, appeal from a judgment in favor of plaintiff, Jessie Northrup, declaring plaintiff to be the owner of certain real property and quieting her title against the claims of appellants Freeman under a promissory note held by Lincoln A. Freeman and a trust deed on said real property securing the same. Plaintiff acquired title by execution sale...
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This is an appeal from a judgment for all but one of the named defendants, which judgment followed an order sustaining their joint demurrer to both counts of plaintiff’s first amended complaint, without leave to amend. The demurrer was overruled as to defendant Floyd W. Randall. The action was filed by plaintiff, the father of Gary Frank Abrahamson, a minor aged 14 years, to recover for th...
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The plaintiff recovered judgment for $1,500, the unpaid portion of the purchase price of his partnership interest in the Greyhound Café business in Livingston, Merced County, which was sold and delivered to the defend *530 ants pursuant to an oral agreement. From that judgment the defendants have appealed. It is contended the findings and judgment are not supported by the evid...
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This is a purported appeal from a judgment of dismissal of the cross-complaint of defendants Walter Metzenbaum and Rose Metzenbaum, rendered pursuant to an order sustaining plaintiffs’ demurrer thereto, with leave to amend. Said defendants refused to amend within the time allowed, or at all. The suit based on the complaint and answer is still pending. Two questions are involved: First, Is the j...
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This is an appeal from an order allowing respondent Butterworth $4,000 for services as receiver and respondent Mahaney $6,000 for services as the receiver’s attorney. The action was one for the dissolution of a partnership and for an accounting. The partnership was formed for the operation of a restaurant in San Francisco known as the Cathay House. The partnership was a limited one, the appella...
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The District Attorney of Ventura County filed an information in the superior court wherein defendant was accused of occupying a building in the city of Oxnard with papers for the purpose of recording bets upon the result of horse races—the offense defined in subdivision 2 of section 337a of the Penal Code. Following the entry of a plea of not guilty and waiver of jury trial, the cause was ...
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Individually and as administratrix of her deceased husband’s estate plaintiff sued (1) for an injunction against the officers and directors of a corporation in which decedent was a shareholder to prohibit them from transferring corporate funds to themselves and to a partnership of which decedent was a member; also, (2) for funds theretofore transferred. Prom the judgment entered she appeals. In...
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Convicted by the court of robbery in the first degree, a jury having been expressly waived, and three prior convictions for felonies having been admitted, defendant now demands a reversal of the judgment on five grounds, seriated and discussed below. The Evidence is Sufficient Sam Shodall was the manager of a market on Sunset Boulevard in Hollywood on September 5, 1947. About 8 a. m. as he wa...
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This is an appeal by the People of the State of California (successor to California Employment Stabilization Commission, successor to California Employment Commission) from an adverse judgment rendered in a suit to collect unpaid contributions due from workmen employed in a hay-baling enterprise under section 45 of the Unemployment Insurance Act of California. (Stats. 1935, ch. 352, p. 1226, as a...
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Luella J. Dolsen died in 1940, survived by three sons, Fred, Ray and Frank. She left a will by which she devised the home in which she had resided for many years to the three sons and appointed Ray Dolsen executor. Other property, if any, was given to the sons in equal shares. Frank died after the death of his mother. He left a will naming his wife, Pearl A. Dolsen as executrix. Some seven years ...
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This is an action for damages arising out of an automobile collision. The plaintiffs have appealed *582from the judgment entered in accordance with a jury’s verdict for the defendants. The accident happened about four miles east of Maricopa on a highway called the “Maricopa Cut-off,” at a point where an “oiled road” enters the highway from an oil field to the south. The surrounding country is leve...
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Plaintiff brought this action against defendant Harry M. McCullough and Harry M. McCullough, Jr., who was the driver of his father’s ear, for damages as a result of an automobile accident involving the death of plaintiff’s minor son, Fred Lesser, Jr., then aged 17 years. The verdict of the jury resulted in a judgment for plaintiff and against the defendant father for $5,000, and against the defen...
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On June 29, 1946, around 11 p. m. on U. S. Highway 6, which runs in a northerly and southerly direction, about four miles south of Mojave, one R. L. Garcia, a Mexican pedestrian, and son of plaintiffs, met his death when struck by an automobile driven by defendant who was then driving her coupé in a northerly direction. The trial court, sitting without a jury, found that defendant was not guilt...
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The defendant was charged with escape from the lawful custody of a police officer in violation of section 4532 of the Penal Code and, in a second count, with assault with intent to commit murder in that he had assaulted the officers with a revolver with the intent to murder. A jury found him guilty on the first count and not guilty on the second. He has appealed from the judgment and from an orde...
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This is an appeal from a judgment denying a writ of mandate and recalling an alternative writ of mandate theretofore issued in a proceeding brought against respondent Board of Medical Examiners of the State of California to secure a review of the suspension of appellant’s physician’s and surgeon’s certificate by said board. The record reveals that appellant was, and had been since April 15, 1945, ...
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In joining our associates in denying appellant’s petition for a hearing in the Supreme Court we deem it proper to point out that on the record before us such denial signifies only that we find no miscarriage of justice apparent on the face of the opinion; in particular, such denial does not constitute an approval of the discussion definitive of circumstantial evidence and relative to the failure o...
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Defendant, accused by information, with the offense of grand theft, was adjudged guilty by the jury and appeals from the judgment that followed. It is contended that the evidence “is insufficient to sustain a conviction.” The evidence reveals that defendant was residing with the victim of the theft, Mrs. Birdie M. Brown; that at that time, as Mrs. Brown testified, “he was supposed to be married to...
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On June 18, 1931, an information was filed against defendant charging him with the crime of murder in the first degree. He entered pleas of “not guilty” and “not guilty by reason of insanity. ’ ’ The jury found him guilty as charged and found that he was sane at the time of the commission of the offense. An appeal from the judgment and from the order denying a new trial was affirmed. (People v....
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Action to recover overcharges paid as rental for residential property. Defendant appeals from a judgment for plaintiff. Plaintiff asserted at the trial that in January, 1946, she rented from defendant a dwelling house at 6672 Whitley Terrace in Los Angeles, including the garage and “the pagoda,” for $85 per month. (The pagoda, located in the garden, consisted of two rooms—one above the other.) She...
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J.Habeas corpus to determine conflicting claims of divorced parents to the custody of a minor child. Petitioner, the mother, was awarded a decree of divorce and exclusive custody of the female child, 5 years of age, by the court of the Eighth Judicial District, in and for Clark County, Nevada, on April 9, 1948. Respondent, the father, was awarded a decree of divorce and exclusive custody of the...
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This appeal is from a judgment dismissing plaintiff’s petition for writ of mandate. The judgment was based on an order sustaining the demurrer of defendants to the petition without leave to amend, dismissing the same and quashing the alternative writ of mandate theretofore issued. The plaintiff, by its petition for a writ of mandate, sought to compel the defendants to issue a permit for the con...
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Geophysical Service, Inc., appeals from an order denying its motion to transfer this matter to the Superior Court of Los Angeles County. The proceeding was brought by G. W. McNear, Inc., to compel the appointment *663of an arbitrator and to require that an arbitration proceed in accordance with the provisions of a written contract. The respondent is a California corporation with principal offices ...
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Defendant Leach and one Lawson were accused in one count of an information with the crime of grand theft of $4,000 in jewelry, and in the second count with stealing an automobile, all belonging to one Morris. Both entered pleas of not guilty. Later, Lawson changed his plea to guilty on the second count and the first count was, as to him, dismissed. He became a witness against his codefendant whom...
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Cross-actions for a divorce were filed by Sophia and Mat Melny. The trial court granted the wife an interlocutory decree of divorce, awarded her the custody of a minor child of the parties, found that all of the property described in the pleadings was community property, awarded the wife the home and furniture and $16,000 as her share of such property, and awarded her $205 per month alimony and $...
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Two appeals by the Department of Mental Hygiene of the State of California: (1) from the order of the probate court approving the 16th annual account of the Bank of America National Trust and Savings Association, as guardian of the estate of Peter Gestner, an incompetent person, and overruling the department’s objections to such account; and (2) from the order denying the department’s petition for...
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Two appeals are here consolidated, one from a judgment in a quo warranto proceeding, entered in favor of the State of California on relation of Robert E. Ferranti holding the annexation to the appellant city of Burlingame of certain uninhabited territory to be void, and the other from a judgment dismissing a petition for writ of re,view filed by appellant city of Burlingame against the county of ...
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The plaintiff, George G. Riff, filed the present action for the recovery of $25,000 deposited with the defendant Peter L. Mayhew, as escrow holder. The escrow instructions involved herein, relate to the purchase by plaintiff and sale by the appellants of a certain “Cocktail Lounge and Restaurant Business known as ‘The New Armt and Navy Club, ’ ” located at 1800 East Ocean Boulevard in the city of...
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On January 20, 1941, defendants Buehrle executed a writing whereby they leased to appellants for a period of five years certain realty and improvements in Pasadena. The lease provided that should appellants during their faithful performance of the lease desire to purchase the premises, the Buehrles would sell same to appellants “at any time during the faithful fulfilment of the above lease” for $...
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Appeal from a judgment in favor of plaintiff awarding her an easement 9 inches in width over appellant’s property alongside respondent’s driveway which extends from the garage in the rear of her house to the street. Appellant and respondent own and occupy adjacent properties on North Harvard Boulevard in the city of Los Angeles. Both lots face west and respondent’s property lies to the nor...
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Appeal from an order granting a new trial. In February, 1946, the parties to the action executed a written contract whereby defendants leased certain real property to plaintiffs for a stated term of 10 years, with an option to renew for a like period, and agreed to erect a building thereon in accordance with agreed plans and specifications, for use by plaintiffs as a bowling recreation center. ...
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This is an appeal from the judgment and order denying a new trial. Defendant was charged by information with murder and was found guilty by a jury of manslaughter. The victim was defendant’s wife. As recited in appellant’s brief, “Recurrent quarrels and separations between them culminated on the night of February 22, 1948, or early morning of February 23, 1948, when the defendant fatally shot his ...
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Plaintiff, who was once the wife of defendant, brought this action to recover an amount owing to her under an agreement entered into between the parties while they were husband and wife. Prom a judgment in her favor defendant has appealed. On or about June 6, 1934, hut under date of June 1, the parties executed a property settlement, agreement for support, and mutual release, and on the same da...
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From a summary judgment in the sum of $4,680, together with interest and costs entered against him pursuant to section 437c of the Code of Civil Procedure, defendant appeals. This action is on a judgment obtained by plaintiff’s assignor in the Superior Court of Cook County, Illinois. Plaintiff *758 alleges in his complaint that defendant appeared and joined issue in the Illino...
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Plaintiffs brought this action to enjoin defendants from obstructing what plaintiffs refer to as a “public road,” and to recover actual and exemplary damages because of the obstruction of said road by defendants where it crosses defendants’ land. The action was tried by the court sitting without a jury, and culminated in a judgment for defendants from which this appeal has been taken. The evidence...
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The defendant John Monteiro has appealed, under section 1237 of the Penal Code, from an order denying his motion for new trial. He was jointly charged with Richard Coronado, in the fourth count of an information, and convicted by a jury, of the crime of pimping, committed contrary to the provisions of the statutes of 1911, page 10, as amended in 1921, at page 96. (1 Deering’s Gen. Laws, Act 1907,...
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90 Cal. App. 2d 768 (1949) LEE BARCUS, Appellant, v. JAMES D. CAMPBELL et al., Defendants; CLARK BROS., INC. (a Corporation), Respondent. Civ. No. 3748. California Court of Appeals. Fourth Dist. Mar. 22, 1949. L. Kenneth Say and Joseph L. Joy for Appellant. Maddox & Abercrombie and James K. Abercrombie for Respondent. GRIFFIN, J. On September 11, 1945, plaintiff Lee Barcus was driving ...
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90 Cal. App. 2d 775 (1949) O. V. BLACKBURN, as Executor, etc., Appellant, v. UNION OIL COMPANY OF CALIFORNIA (a Corporation) et al., Respondents. Civ. No. 3751. California Court of Appeals. Fourth Dist. Mar. 22, 1949. Porter C. Blackburn for Appellant. Harvey, Johnston, Baker & Palmer for Respondents. MUSSELL, J. Plaintiff appeals from a judgment for defendants quieting title to fracti...
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In this action on a contract for delivery of grape rootings, defendant appeals from the judgment in favor of plaintiff, and plaintiff appeals from a part of the same judgment. Plaintiff L. P. Sorensen was a retail nurseryman engaged in the purchase and resale of grapevines and other nursery stock to growers. The defendant, T. A. Sand, was a wholesale nurseryman engaged in the growing of nursery st...
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The defendant was charged with robbery while armed with a gun and, in a second count, with a violation of section 2, Act 1970 of 1 Deering’s General Laws [Stats. 1923, p. 695 as amended]. He was further charged with two previous convictions of felonies, both being burglaries. A jury found him guilty on both counts, and found against him with respect to both prior convictions. He has appealed from ...
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Appeal by petitioner from a judgment in favor of all defendants after order sustaining their demurrers to petitioner’s petition without leave to amend. The petition was filed and the appeal brought by petitioner in propria persona. On June 17, 1948, petitioner filed in the trial court a “Petition for Writ of Mandate, Petition to Clear the Records, Conspiracy to Violate Civil Rights, Damages,” agai...
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90 Cal. App. 2d 793 (1949) MINNIE BROWN, Respondent, v. JEANETTE VOLZ, Appellant. Civ. No. 16493. California Court of Appeals. Second Dist., Div. Three. Mar. 23, 1949. Melville R. Adams for Appellant. Edward P. Hart for Respondent. VALLEE, J. Defendant appeals from a judgment quieting title in plaintiff to a parcel of real property situated in Pasadena, and from an "order denying defendant...
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Appellant Bellew was charged jointly with Adam Pfaff and Bob Hano with the offense of grand theft committed in selling two zircons to Walter Chung and Albert Hing for the sum of $600, under representations that they were genuine diamonds and of the value of $1,000. Upon the trial of defendants’ case to the court, it was stipulated that the ease of the People might be presented in the form of the ...
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Appeal from an order of the probate court decreeing that- certain real property and the income and increment therefrom claimed by a coexecutrix is a part of the assets of the estate, ordering the coexecutrix to file an account and removing her from office. Appellant and respondent are coexecutrices of the estate of Betty Mae Best, whose true name was Betty M. Miller. The controversy centers around...
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On August 12, 1947, respondent secured an uncontested interlocutory decree of divorce from Ms wife on the ground of extreme cruelty. About five and one-half months later, on January 27, 1948, appellant filed a notice of motion under section 473 of the Code of Civil Procedure to set aside the interlocutory decree and the property settlement agreement, which had been approved by the court in the div...
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Plaintiff appeals from a judgment in favor of cross-complainant in an action to quiet title to real property in Fresno County. It is alleged in the complaint that plaintiff and Malvina A. Steward are husband and wife; that on or about the 26th day of March, 1946, Malvina A. Steward was adjudicated a bankrupt and defendant James Y. Paige was appointed, and is now trustee in bankruptcy of th...
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90 Cal. App. 2d 826 (1949) VICTOR V. MONTERROSA, Respondent, v. GRACE LINE, INC. (a Corporation), Appellant. Civ. No. 13977. California Court of Appeals. First Dist., Div. One. Mar. 28, 1949. Williamson & Wallace and William R. Ray for Appellant. Albert Michelson and Newell J. Hooey for Respondent. BRAY, J. In an action for damages for personal injury under the Jones Act (38 Stats. 118...
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By this proceeding in mandamus, the petitioners, sometimes referred to hereinafter as the district, seek an *838order of this court compelling respondent A. S. Eodda, auditor of said district, to certify the correctness of a warrant duly approved by petitioners and drawn in favor of the Treasurer of the United States for the Secretary of the Army in the sum of $1,000. The warrant represents a port...
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Appellant sued for $7,250 damages for the breach of a contract whereby he was employed as master of a fishing vessel owned by respondents. By cross-complaint respondents claimed $999.47 as expenses incurred in repossessing the vessel, plus $239.91 alleged damage to the vessel, and $2,000 exemplary damages. The court awarded respondents judgment for $520 on their cross-complaint and this appeal was...
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The registered and legal owners of a 1947 Oldsmobile appeal from a judgment of forfeiture entered under Health and Safety Code, sections 11612-11613, on the ground that the car was used for the transportation of narcotics. The legal owner offered no proof of having made any investigation of the character or responsibility of the registered owner. The only question raised is the sufficiency of the...
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Plaintiff corporation commenced a quiet title action against The Anglo California National Bank of San Francisco under its true corporate name and joined therein several corporations and individuals as defendants by fictitious names. The named defendant bank by answer and cross-complaint asserted an interest in the real property involved as successor trustee under a deed of trust securing a bonded...
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90 Cal. App. 2d 854 (1949) ELMER REMMER, Appellant, v. THE MUNICIPAL COURT OF THE CITY AND COUNTY OF SAN FRANCISCO et al., Respondents. California Court of Appeals. Mar. 29, 1949. John R. Golden for Appellants. Edmund G. Brown, District Attorney, in pro. per., and Norman Elkington, Assistant District Attorney, for Respondents. GOODELL, J. In Remmer v. The Municipal Court et al., the petition...
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This is an action by John L. and Lottie M. Bishop, husband and wife, against Claude B. Freeman, son of Mrs. Bishop by a former marriage, and his wife Helen Freeman, to establish that a parcel of real property, title to which had been taken in the name of Claude B. Freeman, was held by him in trust for Mr. and Mrs. Bishop. After trial without a jury, judgment was rendered that defendant Claude B. ...
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90 Cal. App. 2d 869 (1949) THE CITY OF LOS ANGELES et al., Respondents, v. M. J. TOWER et al., Defendants; HUGHES TOOL COMPANY (a Corporation), Appellant. Civ. No. 16466. California Court of Appeals. Second Dist., Div. Three. Mar. 30, 1949. Wright & Millikan and Charles A. Loring for Appellant. Ray L. Chesebro, City Attorney, Gilmore Tillman, Chief Assistant City Attorney, and Russell B....
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In order to permit counsel for respondents to preserve their rights by filing a writ of prohibition with the Supreme Court, if they so desire, the following oral opinion is filed and the reporter is directed to prepare copies of this oral opinion and to present them to Mr. Tinning and Mr. Condon and one is to be filed as the order of this court. The original petition and the writ heretofore iss...
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The appellant operates an anto repair shop. He advertised his business by affixing handbills to automo*884biles (of others) parked on the public streets of San Diego. While so engaged he was arrested, charged, tried and convicted of violating a penal ordinance of the city which provides, so far as material here, that . . . “it shall be unlawful to deposit ... in or on any motor vehicle parked on a...
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The facts in this case are stipulated to and, so far as material to the determination of this case, are as follows: On or about July 19, 1947, the plaintiff sold a new automobile to the defendant, and as a part of the sale took from the defendant what is denominated an option agreement, the terms of which substantially provide that “as a part of the consideration for said sale” the defenda...
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Appellants have filed in this court a “Notice of Motion to Recall and Correct the Remittitur” issued in the case of People v. Holt, 93 Cal.App.2d 473 [209 P.2d 94]. The motion is based on the claim that “the remittitur” was issued through inadvertence, mistake of fact, and an incomplete knowledge of all the circumstances of the case on the part of the court, and has resulted in a miscarriage of ju...
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This is an action for divorce. Plaintiff, in his amended complaint, alleged that the minor children of the parties were in the care and custody of defendant in Mexico City, Mexico; that for a long time he had been paying for their support $45 American money on the 10th, 20th and last day of each month; that he was willing and agreed to continue such payments, and agreed that defendant have and re...
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From a judgment in favor of plaintiffs for rent, damages, attorney’s fees, restitution of the premises and forfeiture of the lease in an action in unlawful detainer, defendants appeal. The undisputed facts are as follows: In. March, 1948, plaintiffs leased a residence and motel to defendants under a written lease agreement; the lease provided for rental at the rate of $500 per month and reasona...
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Walter Lonnon was the husband and is the heir at law of Mabel Lonnon, a nurse who died during the time she was acting as supervisor of nurses for Saints John Hospital in San Francisco. Neither Walter Lonnon, nor the two adult children of the parties, was in fact dependent on Mabel Lonnon. Lonnon filed an application to recover medical and burial expenses, the application alleging that in the cours...
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The question for decision is whether an order appointing a receiver for the corpus of a testamentary-trust estate which has reverted to the heirs of the testator upon the death of the sole beneficiary is valid. In his lifetime Francis R. Fencil bequeathed ten-elevenths of the residue of his estate to 10 designated children. The remaining one-eleventh he bequeathed in trust to his executors as t...
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The question for decision is whether the general demurrer to the second amended complaint for the executrix’s fraudulently appropriating $50,000 of bonds left by decedent should have been sustained without leave to amend where the complaint shows that the plaintiff had full knowledge of the existence of the bonds prior to decedent’s demise and of the inventory filed by the executrix 14 years befor...
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Appellant sued to quiet title to Lot 27, Tract 393 in Glendale on the ground that in her lifetime Mary V. C. Stratton, herein referred to as Mary or decedent, had by her last will and testament devised such realty to appellant and that the will had been duly admitted to probate. As an affirmative defense respondent alleged that decedent had by grant deed dated August 1, 1945, conveyed the lot t...
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The question for decision is whether there was an abuse of discretion in granting the motion for a new trial. On February 19, 1946, appellant and his wife Carolyn were owners of Lot 8 of a tract in Beverly Hills. On that day appellant executed his acceptance of respondent’s offer of $42,-500.00 for the property. Fifteen hundred ($1,500) dollars were paid with the offer whereby respondent promised ...
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Plaintiff secured an interlocutory decree of divorce from defendant on the ground of cruelty. She appeals from that portion of the decree allowing alimony and counsel fees asserting that the trial court abused its discretion in not allowing more, and also attacks the decree for its failure to make any provision for her costs of suit. After entry of the decree plaintiff made a motion for an allowa...
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Plaintiff sued as assignee of Caroline Trieber upon a promissory note executed by defendant J. *42Louis Dietz, who deceased after judgment and pending this appeal. The substitution of his executor has been duly made, and we will herein refer to the original defendant as the promisor and to Mrs. Trieber as the promisee. The facts are not materially disputed. The promisor was engaged in betting on h...
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This is an appeal from an order of the probate court determining interest in an estate adversely to the claims of appellant. Facts: Decedent Lynn C. Boyd and appellant were married in Indiana in 1894. During the time they were domiciled outside the State of California decedent acquired personal property which in the state where acquired would have been his separate property, but which if dece...
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Plaintiff’s decedent, John L. Ridgway, filed an action against defendants to quiet title to certain real property. While the action was pending, Mr. Ridgway died and Loretta Ridgway, special administratrix of his estate, was substituted as plaintiff herein. After trial before the court without a jury judgment was entered in favor of defendants decreeing that plaintiff had no interest in the proper...
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From a judgment of dismissal predicated upon the sustaining of a demurrer without leave to amend to petitioners’ petition for a writ of mandate to review a decision and order of the Structural Pest Control Board, respondents herein, petitioner appeals. Facts : Petitioners were holders of Group D licenses under section 8560 of the Structural Pest Control Act, division 3, chapter 14, Business and Pr...
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This is an appeal from a judgment of nonsuit entered in an action brought by the plaintiff on her own behalf and as guardian ad litem of her three minor children to recover damages for the alleged wrongful death of Willard Lewis, her husband and father of her children. The complaint alleged that certain high powered lines of the defendant were so negligently strung, maintained and operated as to c...
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This is a petition for review of a portion of a decision by respondent Industrial Accident Commission in which petitioner was found to have suffered an industrial injury, and awarded compensation, but was denied any allowance for self-incurred medical expenses. He here contends that such expenses should have been allowed. At the time of the injury Draney was employed by W. L. English, as a gene...
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The sole question for decision is whether a defendant in a personal injury case may maintain an independent action for declaratory relief pursuant to section 1060 1 of the Code of Civil Procedure to determine the right of the plaintiff in the first action to prosecute it to judgment. Plaintiff appeals from the judgment entered against it following the sustaining of a demurrer to...
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Ruby Sargavak died in Los Angeles on March 22, 1947, leaving a will dated July 9, 1945. This will was admitted to probate without contest; thereafter appellants, as heirs at law, filed a ‘ ‘ Contest of Will after Probate, alleging that when the will was executed, Ruby Sargavak was mentally incapacitated.” There was a trial by jury; defendants’ motions for nonsuit and for a directed verdict were d...
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On May 28, 1945, appellant Coates pleaded guilty to a violation of section 476a of the Penal Code, and was sentenced to imprisonment for the term prescribed by law. On June 2,1949, he filed in the Superior Court of Shasta Comity a petition in the nature of an application for a writ of error coram nobis, contending that the judgment against him should be set aside because his plea of guilty had ...
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This is an appeal by defendants A. B. Malouf, W. B. Malouf, B. B. Malouf, Bertrand L. Ball, Sperry Lawson, Ben Mar Hills Corporation and Ben Mar Hills Apartments, Inc., from a judgment against them in the amount of some $77,000 for fraud and conspiracy to defraud. The complaint originally named various other defendants among whom were five individuals who were directors of Edgerton, Riley and W...
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This is an appeal by the intervening remainder-men from a judgment entered in the Superior Court of San Mateo County against defendant trustee in the sum of $3,-"121.91 and in favor of plaintiff, a judgment creditor of the beneficiary of a spendthrift trust. The interveners are the two sons of the beneficiary. The case was tried on an agreed statement of facts. Briefly, they are as follows...
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Appeal by plaintiff and cross-defendant from an interlocutory decree of divorce granted defendant and cross-complainant on his cross-complaint. The court found that all of the allegations of the cross-complaint—which alleged extreme cruelty generally—were true. Appellant first says that the court erred in failing to make specific findings of fact as to cruelty. The contention is *127without merit....
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The amended complaint upon which the cause was tried sets forth two counts. In the first, plaintiff seeks specific performance of an agreement, based upon certain preliminary negotiations and written correspondence, for the purchase and sale of certain real property located in Riverside County. In the second count he seeks specific performance in the purchase and sale of the same property based...
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This is an appeal by plaintiffs from a judgment entered on the verdict in favor of defendants. The action is for damages for personal injuries sustained by the minor plaintiff in a collision between her and a motorcycle operated by defendant Smith. The minor plaintiff will be referred to herein as appellant. Both sides concede that the evidence although highly conflicting would support a verdic...
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This is an appeal from a judgment holding that section 7.24 of the bylaws of Crestline Village Mutual Service Company is invalid; decreeing that an “assessment, or maintenance charge,1 ’ of $17 per lot levied against each lot in the district is void and unenforceable; and enjoining the defendants, individually and as directors of that corporation, from collecting or attempting to collect “said ass...
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This is an action for declaratory relief to determine the voting rights of shareholders in a corporation. The plaintiffs contend that this is a nonprofit corporation with one class of membership, the members having equal voting rights; that the capital stock, as such, represents no voting *152power; and that the issued shares are merely evidence of single memberships regardless of the number of sh...
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The administratrix of the estate of E. R. Berryman appeals from a judgment awarding plaintiff, Walter W. Patty, $10,000 for breach of contract, and denying the estate’s right to any judgment against Patty and the other cross-defendant, John S. Huston. The facts are as follows: On, prior, and after November 1, 1946, Huston was the owner of 22 prefabricated houses. On the morning of that day...
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Appellant, Department of Mental Hygiene of the State of California, filed in the estate and guardianship of James H. Bayly, an incompetent person, a petition for “Order Instructing Guardian to Pay for Care, Support and Maintenance of Incompetent Person.” Thereafter respondent guardian filed an account. The petition and the account were heard at the same time. The court entered a decree denying ...
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On this appeal from the judgment and order granting a peremptory writ of mandate to compel the respondent to issue a license to petitioner to carry on the business of plumbing within the city of Newport Beach, the following facts appear from the agreed statement filed herein. Petitioner was the holder of a valid, unrevoked license as a plumbing contractor issued after he had successfully passed...
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Petitioner pleaded guilty to an information charging him with rape, a felony. His motion for probation was granted, and he was placed on five years’ probation on the condition that he serve two years in the county jail. After having served one year and three months of this period, he filed this petition for habeas corpus on the ground that any confinement in the county jail in excess of one year i...
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Plaintiff appeals from (1) a judgment denying dissolution of a corporation, and (2) a judgment on the cross-complaint decreeing specific performance of a eon- *190 tract to sell oil and awarding defendant damages for breach of said contract in the amount of $138,299.43. Defendant appeals from a judgment in favor of the intervener predicated upon defendant’s breach of contract ...
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From judgments of guilty on (1) three counts of forgery and (2) twelve counts of violating section 115 of the Penal Code1 after trial before a jury, defendant appeals. The record being viewed pursuant to the rules set forth in People v. Pianezzi, 42 Cal.App.2d 270, 277 [108 P.2d 685], discloses these facts: Defendant altered without authority three stock certificates of the Mo-Lo Corporation and f...
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The plaintiff has appealed from a judgment which was rendered against him pursuant to an order sustaining a demurrer to the second amended complaint without leave to amend the pleading, and from an order refusing to permit the filing of a third amended complaint, application, for which was made, upon due notice, under section 473 of the Code of Civil Procedure. This is a suit for damages for perso...
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This controversy arises out of an alleged breach by defendant Day of a written contract to purchase certain real and personal property owned by the plaintiff Jiral. The complaint, in substance, alleged that plaintiff was the owner of a certain dwelling house (which is referred to in the record as a flat or apartment building) together with the furniture and furnishings located therein; that by the...
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This court issued alternative writs of prohibition and mandamus directed to the respondent superior court in regard to certain eviction actions pending therein against A. L. Carter, the petitioner herein. The pertinent allegations of the petition were that petitioner was the lessee of certain housing accommodations allegedly subject to the provisions of the Federal Housing and Rent Act of 1947, as...
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Petition for a writ of mandate directing the superior court to vacate its “Order Appointing Conservator and Restraining Order” in a proceeding brought against petitioner by respondent Insurance Commissioner of the State of California. The questions involved concern the validity of the acts of respondent in seizing, by virtue of said court order, the California business and assets of the petitioner...
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The executor of the will of Jennie Mesner appeals from an order of the superior court, sitting in probate, directing him to return to the petitioners and respondents a cashier’s check for $8000, representing a deposit by respondents in connection with their bid for the purchase of real property belonging to the estate of the decedent. The following facts are undisputed: About October 25, 1948...
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The defendant has appealed from a judgment of $500 and a similar amount as punitive damages, which was rendered against him in a suit for malicious prosecution. After consultation with his own lawyer and the district attorney of Humboldt County, the defendant filed a criminal eom *271 plaint in the Police Court of Eureka against Gladys Walker, under section 415 of the Penal Code, charging her w...
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The question presented on this appeal is whether the trial judge abused his judicial discretion in denying plaintiff’s motion for counsel fees and costs in an action *279for divorce against defendant and discharging t'he order to show cause why defendant should not pay counsel fees and costs during the pendency of the action. Plaintiff admits that the allowance of such a motion is a matter of judi...
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Plaintiffs, who are husband and wife, were lessees of the Oxford Hotel in San Pedro, and were owners of the furniture therein. The defendants Wakefield,' who are brother and sister, purchased the lease and furniture from plaintiffs for $28,500; and at the time of the transaction, and in payment of said sum, they paid $5,000 in cash, transferred a $7,500 equity in a ranch in Oregon, and executed a...
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Appellant Joe Gossman was accused of violation of section 501, Vehicle Code, in a trial to the court was found guilty of violation of section 502 of the code and, after *294 refusing to accept the court’s offer of probation, was sentenced to thirty days in the county jail. In brief, section 501 makes it an offense for any person under the influence of intoxicating liquor to drive a vehicle, a...
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The plaintiff brought suit for damages against the defendants as individuals and as copartners for negligently killing 518 hives of bees and causing the loss of 14 tons of honey which would have otherwise been produced. It is alleged the bees were poisoned by the negligent dusting of crops of tomatoes with insecticide compound containing arsenic trioxide, from an airplane, and thus permitting t...
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This is a suit to recover the purchase price of a portable sawmill and equipment sold to defendant for the agreed price of $4,207.14 and the delivery of which the purchaser refused to accept. The answer denied the material allegations of the complaint and pleaded, as a further defense, the statute of frauds (Civ. Code, § 1624a.) The agreement to purchase the sawmill was in writing, which was si...
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Appeal by defendant from a judgment decreeing that plaintiff and defendant each own an undivided half interest in a parcel of improved real property and in certain furniture and furnishings therein and in the rents, issues and profits therefrom, that they hold title as tenants in common, that the record title of the real property is in the defendant alone, that she holds title to the real and p...
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In an action for damages for personal injuries received by the driver of a passenger car in collision with a truck and trailer, the jury brought in a verdict in favor of defendants. Plaintiff appealed from the judgment entered thereon. Questions Involved (1) Alleged insufficiency of the evidence. (2) Alleged error in admission and exclusion of evidence. (3) Alleged error in instructions. 1....
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This is an appeal from an order denying a motion for counsel fees and costs on appeal. By an interlocutory decree on December 26, 1944, respondent was ordered to pay appellant $500 a month for the support and maintenance of herself and their three children. On December 16, 1946, the decree was modified by a reduction to $250, and on March 2, 1948, it was reduced to $50 a month. Apparently a notice...
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On July 26,1946, in the city and county of San Francisco plaintiff sustained personal injuries by walking into a framework of boards placed by defendants around an area of freshly poured concrete on a portion of the sidewalk on Union Street between Mason and Powell Streets. For the injuries then received plaintiff after a jury trial secured judgment against defendants. The mishap occurred in th...
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Plaintiff, the proprietor of a barber shop, sued to recover payments of unemployment insurance assessments. He appeals from a judgment for defendant. During the period in question appellant had in his shop three other barbers and a bootblack. Under section 9(a), California Unemployment Insurance Act (Stats. 1937, p. 2055; 3 Deering’s Gen. Laws, Act 8780d) appellant was only subject to the statute ...
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Plaintiff sued for a declaratory judgment and for other equitable relief in support of his asserted rights under a written sublease under the major lease held by defendants. He had judgment declaring his right to a renewal of his sublease and adjudging that the party named in the renewal of the major lease held for the other defendants who had theretofore contracted with him to grant a renewal ...
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By this proceeding in prohibition the petitioner seeks to prevent the trial court from hearing a motion for an order directing the court clerk to issue an execution to enforce the provisions of a certain judgment against petitioner on the ground that the judgment is void. The pertinent dates are as follows : December 16, 1933: Complaint filed and summons issued in an action for services rendered, ...
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The appeal herein is from an order awarding the attorney for the executors extraordinary attorney fees in the sum of $12,000 for services rendered in connection with the settlement of life insurance claims. Appellant is the guardian of decedent’s minor son who is a beneficiary under a trust set up in the will, other beneficiaries thereunder being the widow, nephews and nieces of decedent. It appea...
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Peggy Halloran Isaacson (hereinafter sometimes referred to as Peggy Halloran) died intestate April 26, 1944, leaving surviving her husband, George Y. Isaacson, one of the appellants herein, her parents, Mr. and Mrs. Daniel Halloran, and her sister, Louise Halloran Bravender. At the time of her death a parcel of real property, hereinafter referred to as the “Alexandria Street Property,” stood in...
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The defendants Carmody and Juber were charged with the crime of robbery while armed with a deadly weapon; each pleaded “Not Guilty” and denied being armed as alleged. In a trial by jury the defendants were found guilty of robbery in the first degree, and each was found to have been armed with a deadly weapon. On September 17, 1948, Judge Frank C. Collier, the trial judge, having died, probation wa...
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In an information filed by the District Attorney of Los Angeles County defendant was accused in count one of a violation of subdivision 1 of section 337a of the Penal Code in that he did wilfully and unlawfully engage in pool-selling and bookmaking upon the result and purported result of horse racing. Count two charged a violation of subdivision 2 of the same code section which denounces as a cri...
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The defendants are charged by information with three counts of robbery. Adjudged guilty by a jury, the appeal herein is from the judgment and the order denying a motion for a new trial. The facts briefly are as follows. On September 18, 1948, about 10 a.m. Louis Harmell answered the doorbell; “that upon opening the door a man confronted him with a gun in his right hand and forced himself and Mr...
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95 Cal.App.2d 384 (1949) PATRICIA LEE HORNADAY, Appellant, v. MARY B. HORNADAY, as Administratrix, etc., et al., Respondents. Civ. No. 17209. California Court of Appeals. Second Dist., Div. Two. Dec. 28, 1949. Jennings & Belcher, Stevens Fargo and Louis E. Kearney for Appellants. Bailie, Turner & Lake and H. A. Gebhardt for Respondents. H. A. Gebhardt, Bailie, Turner & Lake and ...
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Action to quiet title to Lots 384 and 385 of the Forthmann Tract in the city of Los Angeles, formerly in the city of Watts. Judgment was entered for plaintiff from which defendant Catherine A. McKenna appeals. Plaintiff’s title rests on tax deeds issued to the State of California after nonpayment of taxes of 1928 on Lot 384 and taxes of 1924 on Lot 385; deeds issued by the State of Califor...
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From a judgment in favor of plaintiff in an action for an accounting and to obtain commissions allegedly due under an oral brokerage contract, defendants appeal. They have also purportedly appealed from the interlocutory judgment and from the report of referee on accounting. *416In January, 1941, plaintiff and defendant General Truck Rentals entered into an oral agreement whereby plaintiff was eng...
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This is an appeal by the People from an order of the superior court granting a motion of the defendant to set aside the information charging defendant with violating section 337a, subdivisions 2, 4 and 6 of the Penal Code. Defendant had previously been held to answer by a committing magistrate upon the “production of satisfactory testimony . . . that there is reasonable and probable cause to beli...
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The appeal herein is from a judgment entered upon a verdict in favor of plaintiff, a depositor in the defendant bank, in the sum of $7,912.62, representing the amount of 43 checks signed with plaintiff’s name by a bookkeeper, Virgil Fore, without plaintiff’s authority. It appears that plaintiff operated three cafés in Long Beach, and about the middle of January, 1946, employed Virgil Fore, aged 21...
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Appeal by plaintiffs from an order granting defendant’s motion to dismiss, and from an order dismissing, the action for want of prosecution. On December 10, 1942, plaintiffs sued the defendant, an attorney at law, for damages for allegedly failing to represent them skillfully, as their attorney, in the trial of a municipal court action wherein these plaintiffs had been sued upon an account for gro...
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Review of proceedings of the Industrial Accident Commission. An award was made, based upon a permanent disability rating of 55% per cent. Petitioner herein, which is the compensation insurance carrier for the employer, asserts that one-half of that disability rating should have been apportioned to preexisting or independently developing arthritis. On April 28, 1945, Edward A. Thomas, an em...
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Defendants Washington and Hunter were charged with the violation of section 11500 of the Health and Safety Code in that they unlawfully had in their possession flowering tops and leaves of Indian hemp. In a trial by the court without a jury they were adjudged guilty. Defendant Washington appeals from the judgment, from the order deny *455 ing his motion for a new trial, and from the order denyi...
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This is an appeal by plaintiff from a judgment of dismissal in favor of defendant, which judgment was entered after the former declined to amend its second amended complaint following the sustaining of a demurrer thereto with leave to amend. This action was instituted to recover money under bankers’ blanket bonds issued by defendant to plaintiff. Two bonds are involved on this appeal. They will be...
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Lillian Grace Blalock, deceased, left a purported holographic will which was admitted to probate, the respondent, Florence Dorothy Driggs, a niece of the testatrix, named in the will, being appointed administratrix with the will annexed. The will in controversy, written upon two sheets of lined paper apparently torn from a small memorandum book, is as follows: *466 ...
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Defendant was convicted in a trial by jury of violating section 15 of the Chiropractic Act [Stats. 1923, p. xx, 2 Deering’s Gen. Laws, Act 4811], an initiative measure adopted by the people in November, 1922. Defendant is a licensee under the act and held himself out to the public by business cards and a sign on his office window as a “chiropractic physician. ’ ’ The jury was instructed, in effect...
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In an information filed by the District Attorney of Los Angeles County, defendant was accused of the crime of violation of section 288a of the Penal Code in that he participated in the act of copulating with his mouth the penis of a 15-year-old boy. The information also charged the defendant with a prior conviction of a felony in the State of Oregon, for which it was alleged he served a term of i...
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The sufficiency of the evidence to sustain the judgment after verdict by a jury in this case is not questioned. *710 A narration of part of the evidence is necessary to illustrate the propriety (1) of refusing certain proposed instructions submitted by plaintiff; (2) giving certain instructions on request of defendant, and (3) giving certain instructions on the court’s initiative. Plaintiff cla...
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By means of this proceeding in certiorari the petitioner seeks to annul an order of the superior court granting him probation. In a trial to a jury the petitioner was convicted of statutory rape and his sentence fixed at one year in the county jail under the provisions of section 264 of the Penal Code. He applied for probation and the terms fixed were so excessive that he declined to accept them ...
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In April of 1938, E. T. Goodman, Eva I. Goodman, his wife as first party; Fred Gunther and Florence Gunther, his wife as second party; and Carleton E. Wood and Marguerite Wood, his wife as third party, entered into a written agreement of partnership for the purpose of reducing *720 to writing their interests in the business then being operated by them, namely, (1) distributors in the Santa Moni...
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In this action to set aside a deed, judgment for plaintiff was reversed with directions to permit plaintiff to amend her complaint by alleging the confidential relationship existing between plaintiff and defendants. It was stipulated that the testimony taken and received at the second trial was identical with that of the first and the facts are fully set forth in the opinion of this court in ...
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89 Cal.App.2d 738 (1949) PESQUERA del PACIFICO, S. de R. L. et al., Petitioners, v. THE SUPERIOR COURT OF SAN DIEGO COUNTY et al., Respondents. Civ. No. 3940. California Court of Appeals. Fourth Dist. Jan. 19, 1949. Luce, Forward, Kunzel & Scripps for Petitioners. Robert O. Staniforth, Stickney & Stickney and Edward Strop for Respondents. *739 MUSSELL, J. In this application for a writ of ...
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89 Cal.App.2d 742 (1949) THE PEOPLE, Respondent, v. HUEY MALICOAT, Appellant. Crim. No. 2553. California Court of Appeals. First Dist., Div. Two. Jan. 20, 1949. S. C. Masterson and Jos. Genser for Appellant. Fred N. Howser, Attorney General, David K. Lener, Deputy Attorney General, Francis W. Collins, District Attorney, and Douglas M. Quinlan, Deputy District Attorney, for Respondent. DOOLI...
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Plaintiff, respondent before this court, brought this action against Louise and Leandous Wissner, the parents of plaintiff’s deceased husband, Leonard 0. Wissner. The complaint alleged that plaintiff and said decedent were married in California in 1930; that at the time of said marriage decedent had no property and that all property which he thereafter acquired was community property acquired b...
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The plaintiffs brought this action to quiet title to a lot in Anaheim which they had purchased from A. W. Young in April, 1944, without any escrow or title report. Young had bought the lot for $75 from the city of Anaheim on August 31, 1943. The city acquired title through a tax deed issued by its tax collector on July 2, 1934, and also through a tax deed issued by the county tax collector on Augu...
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Plaintiffs commenced this action in 1945, to quiet title to a strip of land about 23 feet in width and lying between Lots 4, 5, 12 and 13, owned by plaintiffs, and Lots 3, 6, and 11, owned by defendants McGuire, and Lot 14, owned by defendants Frost, all in Block I, Etiwanda Colony Lands. The complaint contains two counts. The first sets forth the usual allegations to quiet title. The second is fo...
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Appellant Gantner & Mattern Company is a manufacturer of men’s and women’s garments including sweaters, swimming suits, women’s play suits or sun suits and shorts. In 1932, appellant employed respondent Hawkins by an' oral contract to act as its salesman to retail stores and merchants in certain territory in the southern part of the United States upon commissions on goods actually delivered wit...
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The present appeal is from an order denying distribution to Fanny Heitman of the sum of $5,000 bequeathed in the will of Pink L. Nathan who died August 24, 1946. There is no dispute as to the facts and the only question presented is the construction of clause third, paragraph (a) of decedent’s will, reading as follows: “ (a) To Fanny Heitman, now serving as a maid in my home in Los Angeles, the...
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This is an appeal from the judgment and order denying a motion for a new trial. Defendant was adjudged guilty of robbery. The record reveals that the victim was robbed by “two persons as he was locking up his gas station at 72nd and Avalon Boulevard for the night.” The defendant testified, as recited in appellant’s brief, that, “he was employed by the ‘East Side Taxi Cab Company.’ That on January ...
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Mary R. Walters died on December 22, 1945, leaving a document dated November 19, 1945, purport*798ing to be her will. On January 11, 1946, it was admitted to probate. On March 5, 1946, respondent Crann filed a petition for its . revocation on the grounds that decedent was of unsound mind and that the document was not executed in the manner or form required by law. Therein he alleged that on April ...
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This is a motion by defendants to dismiss plaintiffs’ appeal, under the provisions of rule (10a), Rules on Appeal, for failure to comply with the requirements of rule 4(c) of said rules. The pertinent portion of rule 4(c) is as follows: “The notice given by the appellant under the foregoing provisions of this rule shall not be effective for any purpose unless, within 10 days after notification fro...
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Defendant appeals from a summary judgment in favor of plaintiff under section 437c of the Code of Civil Procedure in the sum of $5,000 with interest and costs. On August 23, 1945, plaintiff Gardner agreed in writing to take part in the government surplus business of defendant *806 Shreve, for which purpose he furnished $5,000 and promised to furnish $5,000 more as the business...
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Plaintiff, by his complaint, sought to set aside a trustees’ sale, to have the trustees’ deed declared void and of no effect, to have title to the real property involved quieted in himself, and for damages. Defendants’ demurrer to plaintiff’s fifth amended complaint was sustained without leave to amend. Thereafter plaintiff appealed from “the order” sustaining said demurrer but not from the judgm...
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Defendant appeals from an order correcting a judgment and from the judgment nunc pro tunc entered thereon. This is an action for forcible entry and detainer. The trial court, in the judgment, erroneously decreed that plaintiff and defendant were the owners as tenants in common in the real property described in the complaint therein. A motion was made to vacate, set aside or corr...
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This, case arises out of the sale by respondent to appellant of a tractor and bulldozer for $6,500. Appellant sued for damages resulting from the claimed breach of an express warranty, for $10,298.86. The court gave judgment for. $1;000, and being dissatisfied therewith, plaintiff appealed. The complaint is in four counts. The first is based on an express warranty, the second, on an implied war...
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State Compensation Insurance Fund, petitioner herein, was the insurance carrier of the petitioner D. D. Dunlap, who was the employer of respondent Myles J. Aten. Respondent Aten suffered compensable injuries while in Dunlap’s employ and his application for compensation came before the respondent commission and was settled for the most part before respondent Riedman came into the case as Aten’s att...
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Plaintiff recovered a money judgment in the superior court against defendant. Pursuant to section 2422 of ■ the- Civil Code, a charging order was issued charging defendant’s interest in a partnership with payment of the judgment. Plaintiff made a motion for an order for the foreclosure and sale of defendant’s interest in the partnership under the charging order. The motion was denied and plaintiff...
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The executrix of the will of decedent moves to dismiss two appeals taken by John J. McMahon (1) from an order striking from the files his objections (a) to the petition of the executrix for an order allowing extraordinary commissions, (b) to the petition of her attorney for an order allowing extraordinary fees, and (c) to the first account current and report of the executrix; (2) from an order den...
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Plaintiff appeals from a judgment that he take nothing by his action, which judgment was entered following an order of the trial court sustaining defendants’ demurrer to plaintiff’s amended complaint without leave to amend. The complaint alleged that plaintiff was a resident, tax *836 payer, and legally qualified elector of the city of Modesto, and that said city is organized and acting under...
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J. — Plaintiff, father of Claude Downing, a minor aged 20 years, brought this action as guardian ad litem of said minor, to recover damages for injuries sustained by the boy in a collision alleged to have been due to negligence on the part of Mrs. Silberstein in her operation of an automobile owned by Mr. Silberstein, her husband. Plaintiff sued for $22,726.45, and a trial jury ...
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By bis first cause of action plaintiff sought to quiet title to certain lands located in Mendocino County, and by his second cause sought to enjoin the maintenance of a certain fence alleged to have been erected by defendants and to require the removal thereof. Defendants’ answer admitted plaintiff’s ownership of the lands described in the complaint but denied the trespass or that the fence was...
Views: 2
The appellants applied to this court to be relieved from default in failing to file their opening brief within the time allowed therefor, and to set aside an order dismissing the appeal. Upon notice given on this court’s own initiative under rule 17 of Rules on Appeal, the appeal was dismissed for failure to file the brief. The motion for relief and to reinstate the appeal was opposed by the resp...
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89 Cal. App. 2d 853 (1949) THE PEOPLE, Respondent, v. H. V. STONE et al., Appellants. Crim. No. 2094. California Court of Appeals. Third Dist. Feb. 1, 1949. Richard J. Lawrence, Gordon A. Fleury, F. H. Bowers and Thos. F. Sargent for Appellants. Fred N. Howser, Attorney General, Doris H. Maier and Gail A. Strader, Deputy Attorneys General, for Respondent. THOMPSON, J. The defendants were j...
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89 Cal. App. 2d 886 (1949) LINO BASSI, Respondent, v. MARIE B. BASSI et al., Appellants. Civ. No. 16560. California Court of Appeals. Second Dist., Div. Two. Feb. 3, 1949. Hahn, Ross, Goldstone & Saunders for Appellants. Edwin C. Boehler for Respondent. WILSON, J. Defendant has appealed from a judgment rendered in favor of plaintiff in an action for an accounting of moneys that he entr...
Views: 5
From a judgment in favor of plaintiffs in a trial before the court without a jury in an action predicated upon two causes of action, (1) for the foreclosure of a mechanic’s lien, and (2) to recover $3,679.61 alleged to be due on a written contract, defendant appeals. Facts The present action was instituted April 27, 1942, resulting in a judgment in favor of plaintiffs, which was rever...
Views: 2
From a judgment in favor of defendants after trial before the court without a jury in an action for an accounting predicated upon an oral agreement whereby plaintiffs agreed to furnish necessary money for the purchase and rehabilitation of various parcels of real estate, to be found and purchased by defendant Charles L. Solov, with the understanding that upon the subsequent sale of any of such ...
Views: 1
91 Cal. App. 2d 1 (1949) CHIN OTT WONG et al., Respondents, v. TITLE INSURANCE AND TRUST COMPANY (a Corporation) et al., Appellants. Civ. No. 16494. California Court of Appeals. Second Dist., Div. One. Mar. 30, 1949. Anthony H. Mauer, Arch H. Vernon, Earl E. Johnson and Gilbert E. Harris for Appellants. Harry M. Irwin for Respondents. THE COURT. The record in this case discloses that the j...
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91 Cal.App.2d 4 (1949) RAYMOND POTTER et al., Respondents, v. EMPRESS THEATRE COMPANY (a Corporation) et al., Appellants. Civ. No. 7535. California Court of Appeals. Third Dist. Mar. 30, 1949. Gerald M. Desmond, Jerome M. McLaughlin, Johnson, Ware & Davies and William A. Sitton for Appellants. Albert E. Sheets, Carl Kuchman and Robert H. Schwab for Respondents. ADAMS, P. J. This is an appe...
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91 Cal. App. 2d 15 (1949) JOHN R. ARNOLD et al., Respondents, v. OSCAR HANSON et al., Appellants. Civ. No. 7537. California Court of Appeals. Third Dist. Mar. 30, 1949. Morse & Richards for Appellants. Lovett K. Fraser for Respondents. ADAMS, P. J. This is an appeal by defendants from a judgment quieting plaintiffs' title to Lots 19 and 20, Block 1, *16 of Clear Lake Highlands Club Hou...
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91 Cal. App. 2d 19 (1949) NORTHWEST CASUALTY COMPANY (a Corporation), Respondent, v. H. C. LEGG et al., Appellants. Civ. No. 3756. California Court of Appeals. Fourth Dist. Mar. 30, 1949. West, Vizzard, Howden & Baker and Dorris, Fleharty & Phillips for Appellants. Mack & Bianco for Respondent. BARNARD, P. J. On July 29, 1946, the plaintiff issued to "H. C. Legg and O. H. Light...
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91 Cal. App. 2d 26 (1949) THE PEOPLE, Respondent, v. NILS ARESEN, Appellant. Crim. No. 2564. California Court of Appeals. First Dist., Div. One. Mar. 31, 1949. Nils Aresen, in pro. per., for Appellant. Fred N. Howser, Attorney General, and David K. Lener, Deputy Attorney General, for Respondent. BRAY, J. Defendant appeals in propria persona from a judgment of the superior court, after jury...
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91 Cal. App. 2d 39 (1949) VIOLET A. KELLER, Appellant, v. JULIUS M. KELLER, Respondent. Civ. No. 13835. California Court of Appeals. First Dist., Div. Two. Mar. 31, 1949. Lucille F. Athearn for Appellant. J. Bruce Fratis for Respondent. GOODELL, J. This is an appeal from an order denying appellant's motion to vacate an interlocutory judgment of divorce which had been entered in her favor. ...
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91 Cal. App. 2d 45 (1949) THE PEOPLE, Respondent, v. JAMES H. LYLE, Appellant. Crim. No. 2554. California Court of Appeals. First Dist., Div. Two. Mar. 31, 1949. James H. Lyle, in pro. per., for Appellant. Fred N. Howser, Attorney General, Clarence A. Linn, Deputy Attorney General, J. F. Coakley, District Attorney, and Arthur Sherry, Deputy District Attorney, for Respondent. GOODELL, J. Ap...
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91 Cal. App. 2d 50 (1949) Estate of EMANUEL ABERT, Deceased. HENRY J. ABERT et al., Respondents, v. ERNEST ABERT, Individually and as Executor, etc., Appellant. Civ. No. 7544. California Court of Appeals. Third Dist. Mar. 31, 1949. Preston & Falk for Appellant. Albert Picard for Respondents. THOMPSON, J. Ernest Abert, proponent, has appealed from a judgment rendered pursuant to the ver...
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Herman Selditch, a resident of Los Angeles County, died on August 15, 1946, at Mexico City. Thereafter, one Clara Forth, named as executor, petitioned for probate of two holographic documents written upon Western Union telegraph blanks, together with a typewritten will signed by decedent but attested by only one witness, the latter document being sometimes referred to as the “incomplete will.” The...
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91 Cal. App. 2d 68 (1949) DAVID GRANT, Respondent, v. THE AERODRAULICS COMPANY (a Copartnership) et al., Appellants. Civ. No. 16242. California Court of Appeals. Second Dist., Div. Three. Apr. 1, 1949. Irwin M. Fulop, Ralph B. Herzog and Benjamin D. Mathon for Appellants. Grivi & Norris for Respondent. SHINN, P. J. This is an appeal by The Aerodraulics Company, a copartnership, and its...
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91 Cal. App. 2d 79 (1949) EDWARD S. MILKES et al., Appellants, v. CHARLES E. SMITH, Respondent. Civ. No. 16557. California Court of Appeals. Second Dist., Div. Three. Apr. 1, 1949. R. G. Akers for Appellants. Cameron & Perkins for Respondent. VALLEE, J. Plaintiffs and defendant about November 12, 1945, entered into a contract in writing consisting of escrow instructions whereby defenda...
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91 Cal. App. 2d 84 (1949) LESTER PEDERSON, Respondent, v. CHARLES H. CARRIER et al., Appellants. Civ. No. 13827. California Court of Appeals. First Dist., Div. Two. Apr. 2, 1949. Donald Seibert, Hadsell, Sweet & Ingalls and Sydney P. Murman for Appellants. Elmer P. Delany and Wm. A. Sullivan for Respondent. *85 DOOLING, J. In an action for personal injuries occasioned by his being stru...
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This is an appeal by defendants from a judgment in favor of the plaintiff in an action to recover damages for injuries sustained by him as the result of a collision between plaintiff’s truck and defendants’ train. Defendants’ answer denied plaintiff’s allegations of negligence and affirmatively alleged that he was guilty of contributory negligence. There were two trials. The first jury was unable ...
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J. E. Music and Mariah Music, husband and wife, brought this action to recover damages for personal injuries in a collision between an automobile driven by the husband Mr. Music, in which his wife was riding, and a passenger train of the defendant Southern Pacific Company. Defendants C. B. Frizelle and George Belsky were, respectively, the engineer and fireman on the train involved. The collision,...
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The defendant subdivided a tract of land near a naval base and not far from the eastern boundary of Kern County. In the fall of 1944, he was selling lots in this subdivision although a map had not yet been accepted or filed and much of the street and other required work had not been done. On October 1, 1944, he sold a lot to Wm. W. Johnson, giving him receipt No. 8502, which reads: “Oct 1st 1944 8...
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On March 23, 1945, at about 6 :50 p. m., appellant was severely injured when he was struck by a slow-moving switch engine as he was walking along Fourth Street across the Southern Pacific tracks in San Francisco. Fourth Street runs north and south, and crosses the tracks at right angles. The tracks lie between King Street on the south and Townsend on the north, terminate in the Southern Pacific st...
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91 Cal. App. 2d 112 (1949) JAMES T. SHERIDAN, Appellant, v. AXEL RAVN, Respondent. Civ. No. 13823. California Court of Appeals. First Dist., Div. Two. Apr. 5, 1949. Edward M. Fellows, Melvin, Faulkner, Sheehan & Wiseman and A. J. Zirpoli for Appellant. Campbell, Hayes & Custer and Edward J. Niland for Respondent. NOURSE, P. J. Plaintiff entered the creamery and lunch counter of def...
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91 Cal. App. 2d 118 (1949) WILLIAM S. MOONEY, Respondent, v. PRISCILLA MOONEY, Appellant. Civ. No. 16420. California Court of Appeals. Second Dist., Div. Two. Apr. 5, 1949. Allan L. Leonard for Appellant. John E. McCall for Respondent. MOORE, P. J. Appellant takes exception to that portion of the interlocutory decree of divorce awarding plaintiff, as his share of the community property, an...
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91 Cal. App. 2d 123 (1949) JOHN E. GERSTNER, Respondent, v. SEYMOUR SCHEUER et al., Appellants. Civ. No. 16863. California Court of Appeals. Second Dist., Div. Two. Apr. 5, 1949. Thomas W. Le Sage for Appellants. David Press for Respondent. MOORE, P. J. Plaintiff sued to enforce a trust upon Lot 9, Harvard View Tract in the city of Pasadena, to the extent of his contribution of the purchas...
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This is an action for declaratory relief to determine which, if either, of two insurers against public liability is liable to plaintiffs on claims for damages arising out of an automobile accident. The trial court adjudged that (1) defendant Pacific Indemnity Company is exonerated from liability by reason of *130the fact that plaintiff Air Transport Manufacturing Company, Limited failed to comply ...
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91 Cal. App. 2d 134 (1949) M. LOUISE MORGAN, Appellant, v. CITY OF LOS ANGELES et al., Respondents. California Court of Appeals. Apr. 5, 1949. Haas & Home for Appellant. Ray L. Chesebro, City Attorney, and John J. Tully, Jr., Assistant City Attorney, for Respondents. WOOD, J. The petitioner sought a writ of mandate directing the Board of Pension Commissioners of the City of Los Angeles t...
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Appeal by defendants from a judgment of the superior court, after jury verdict, awarding plaintiff damages in the sum of $1,000 for personal injuries received by plaintiff. A motion for new trial was denied automatically by expiration of time. Defendants contend: (1) that the evi*140dence is insufficient.to justify the verdict; and (2) that the verdict is against the law. Having in mind the rule a...
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91 Cal. App. 2d 142 (1949) MARY E. HUETTER, Appellant, v. MILTON ROY ANDREWS et al., Respondents. Civ. No. 16697. California Court of Appeals. Second Dist., Div. One. Apr. 6, 1949. Edward Feldman and James Wolf for Appellant. Hunter & Liljestrom and Rodney F. Williams for Respondents. *143 DORAN, J. This is an appeal from the judgment. The action is for damages resulting from an autom...
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91 Cal. App. 2d 147 (1949) ADRIENNE LUCILLE O'CONNOR, Appellant, v. GERALD JOSEPH O'CONNOR, Respondent. Civ. No. 13879. California Court of Appeals. First Dist., Div. One. Apr. 7, 1949. P. H. McCarthy, F. Nason O'Hara and Herbert S. Johnson for Appellant. Sullivan, Roche, Johnson & Farraher for Respondent. BRAY, J. Appeal by plaintiff on the judgment roll alone from a judgment denying ...
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Defendant was charged in count I of an information with grand theft from the person, and in count II thereof with grand theft. Trial by jury was waived. He was adjudged guilty as charged in count I and not guilty as charged in count II. His motion for a new trial was denied. He appeals from the judgment. The substance of appellant’s contentions is that the evidence was insufficient to support the ...
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91 Cal. App. 2d 158 (1949) THE PEOPLE, Respondent, v. MATTHEW FOUNTAIN et al., Defendants; CLARENCE HENRY JOSS, Appellant. Crim. No. 4306. California Court of Appeals. Second Dist., Div. Three. Apr. 7, 1949. Ray L. Smith for Appellant. Fred N. Howser, Attorney General, and Henry A. Dietz, Deputy Attorney General, for Respondent. VALLEE, J. Defendant was tried by a jury and convicted of gra...
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91 Cal. App. 2d 163 (1949) THE PEOPLE, Respondent, v. WARREN F. APPLEGATE, Appellant. Crim. No. 718. California Court of Appeals. Fourth Dist. Apr. 7, 1949. James B. Abbey for Appellant. Fred N. Howser, Attorney General, Henry A. Dietz, Deputy Attorney General, James Don Keller, District Attorney, and Woodrow Wilson, Deputy District Attorney, for Respondent. *165 GRIFFIN, J. Defendant was ...
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Out of the original purchase of a tractor in 1941 by Morton and Thayer for $4,120 has grown litigation which bids fair to rival the celebrated case of Jarndyce v. Jarndyce with overtones of opéra bouife. The pleadings are summarized and discussed in the opinion of this court in Palpar, Inc. v. Thayer, 82 Cal.App.2d 578 [186 P.2d 748]. We need only note here that Palpar, Incorporated as successor t...
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From a judgment in favor of defendants after trial before the court without a jury in an action to impress a constructive trust upon certain real property, plaintiffs appeal. Pleadings: In the complaint plaintiffs allege that they conveyed a described parcel of real property to defendants upon defendants’ oral promise to reconvey the property to plaintiffs upon demand; that plaintiffs had demanded...
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From a judgment in favor of plaintiff in a divorce action awarding a parcel of real property in Los Angeles County to her as her separate property, defendant appeals. Facts On August 6, 1947, plaintiff filed a complaint for divorce from defendant on grounds of extreme cruelty. Thereafter defendant filed an answer and cross-complaint for divorce on the same grounds. Plaintiff by answer denied all m...
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From a judgment in favor of defendant after trial before the court without a jury in an action to establish a joint venture and to recover the reasonable value of labor and material furnished defendant Hoag by plaintiff, plaintiff appeals. Facts On November 26, 1945, defendant purchased a lot in Los Angeles County for the sum of $2,500 in cash. On January 6, 1946, plaintiff and defendant entered i...
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91 Cal. App. 2d 189 (1949) THE PEOPLE, Appellant, v. HYMAN FRANKENTHAL et al., Respondents. Civ. No. 3741. California Court of Appeals. Fourth Dist. Apr. 8, 1949. Fred N. Howser, Attorney General, Charles W. Johnson and William L. Shaw, Deputy Attorneys General, for Appellant. L. Kenneth Say for Respondents. GRIFFIN, J. Plaintiff and appellant, in 1942, brought this action against defendan...
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91 Cal. App. 2d 197 (1949) HENRY J. SANTENS, Respondent, v. LOS ANGELES FINANCE COMPANY (a Corporation) et al., Defendants; JOHN E. MILLER, Appellant. Civ. No. 3759. California Court of Appeals. Fourth Dist. Apr. 8, 1949. George W. Rochester for Appellant. Zeutzius & Steffes and Jamison & Jamison for Respondent. MUSSELL, J. Defendant appeals from a judgment for plaintiff in an acti...
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91 Cal.App.2d 203 (1949) WILLIAM CHARLES DENNIS, Respondent, v. PEDRO GONZALES et al., Appellants. Civ. No. 16570. California Court of Appeals. Second Dist., Div. Two. Apr. 12, 1949. Syril S. Tipton and Patrick H. Ford for Appellants. Harrold A. Binnard and Samuel L. Kurland for Respondent. MOORE, P. J. While driving westerly on Highway 66, battery trouble developed in respondent's automob...
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Having been convicted of the crime of attempted pandering (Stats. 1911, p. 9; 1 Deering’s Gen. Laws, Act 1906 * ) defendant now demands a reversal of the judgment on the grounds that (1) the evidence is insufficient and (2) the time for pronouncing judgment was extended beyond the 30 days allowed by the Penal Code. (§ 1191 as amended, 1947; Stats. 1947, ch. 1178.) The facts established are th...
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91 Cal. App. 2d 222 (1949) THE PEOPLE, Respondent, v. CHRISTINE MONTES, Appellant. Crim. No. 670. California Court of Appeals. Fourth Dist. Apr. 13, 1949. Wing, Wing & Brown for Appellant. Fred N. Howser, Attorney General, and Elizabeth Miller, Deputy Attorney General, for Respondent. MUSSELL, J. Defendant was charged by information with the crime of mayhem in that she disabled and ren...
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91 Cal. App. 2d 226 (1949) EVAN EVANS, Respondent, v. FRANK E. ZEIGLER et al., Appellants. Civ. No. 16576. California Court of Appeals. Second Dist., Div. Three. Apr. 14, 1949. Edgar T. Fee for Appellants. Marlan Proctor for Respondent. WOOD, J. Plaintiff commenced this action to recover a balance allegedly due for services rendered by him in constructing a hydropress for defendants. Judgm...
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Frank B. Navarro, to be referred to as defendant, entered into a conditional sales agreement for the sale to Paul R. Rice and Eileen B. Rice, to be referred to as plaintiffs, of 20 automatic phonographs (“juke boxes”) for the sum of $19,885, payable $5,500 down and the balance in monthly payments of $680. Title to the property remained in the seller, who had the right upon default in payment to de...
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91 Cal. App. 2d 238 (1949) M. A. SLOPER, Respondent, v. FANNIE D. SLOPER, Appellant. Civ. No. 7592. California Court of Appeals. Third Dist. Apr. 14, 1949. Charles Kasch, Leo M. Cook, Hale McCowen and J. R. Thomas for Appellant. Mannon & Brazier and Royal E. Handlos for Respondent. THOMPSON, J. In a suit for declaratory relief, the trial court determined that a specified portion of the...
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91 Cal. App. 2d 248 (1949) FRANK X. SHINN, Appellant, v. CYRIL H. HEUSNER, Respondent. Civ. No. 7593. California Court of Appeals. Third Dist. Apr. 14, 1949. Russell F. Milham, Thos. S. Marlor and Peter Mannino for Appellant. Henry & Bedeau and Sherman C. Wilke for Respondent. ADAMS, P. J. This is an appeal from a judgment in an election contest case. Respondent Heusner, who was the in...
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91 Cal. App. 2d 253 (1949) THE PEOPLE, Respondent, v. WILLIAM S. MURRAY, Appellant. Crim. No. 2110. California Court of Appeals. Third Dist. Apr. 14, 1949. William S. Murray, in pro. per., for Appellant. Fred N. Howser, Attorney General, Doris H. Maier and G. A. Strader, Deputy Attorneys General, for Respondent. ADAMS, P. J. Defendant was charged with statutory rape of his stepdaughter in ...
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Defendant appeals from an order denying his motion to vacate a judgment of conviction of a violation of 476a of the Penal Code. Defendant was charged by an information with the crime of issuing checks without sufficient funds, in violation of section 476a of the Penal Code, a felony. He waived jury trial, was tried by the court and found guilty. The judgment was pronounced January 27, 1948...
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91 Cal. App. 2d 263 (1949) LOUIS CRILLO, Respondent, v. LAURENCE CURTOLA et al., Appellants. Civ. No. 13850. California Court of Appeals. First Dist., Div. One. Apr. 15, 1949. Joseph L. Alioto and Robert J. Drewes for Appellants. Myron Harris, R. J. Darter and John Jewett Earle for Respondent. PETERS, P. J. Plaintiff was hired by defendants to work for them for a period of two years at a s...
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91 Cal. App. 2d 278 (1949) GEORGE H. CONSTANTINE et al., Appellants, v. THE CITY OF SUNNYVALE et al., Respondents. Civ. No. 13894. California Court of Appeals. First Dist., Div. One. Apr. 15, 1949. DiMaria & DiMaria for Appellants. Joseph A. Bonacina, Rankin, O'Neal, Luckhardt, Center & Hall and Maurice J. Rankin for Respondents. WARD, J. This is an appeal by each plaintiff from ju...
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91 Cal. App. 2d 285 (1949) DANIEL D. FROHMAN, Appellant, v. WILLIAM G. BONELLI, Respondent. Civ. No. 16600. California Court of Appeals. Second Dist., Div. Three. Apr. 15, 1949. Charles A. Son and Joseph D. Taylor for Appellant. Fred N. Howser, Attorney General, Bayard Rhone and William E. James, Deputy Attorneys General, for Respondent. VALLEE, J. This action was commenced February 3, 194...
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91 Cal. App. 2d 292 (1949) LOUIS L. SERNA, Respondent, v. JOSEPHINA SERNA, Appellant. Civ. No. 16679. California Court of Appeals. Second Dist., Div. Three. Apr. 15, 1949. William H. Brawner and Robert M. Newell for Appellant. No appearance for Respondent. VALLEE, J. On March 24, 1939, plaintiff was awarded a final decree of divorce from defendant. The decree provided that plaintiff pay de...
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91 Cal. App. 2d 295 (1949) REFRIGERATION DISCOUNT CORPORATION (a Corporation) et al., Petitioners, v. THE SUPERIOR COURT OF TEHAMA COUNTY, Respondent. Civ. No. 7661. California Court of Appeals. Third Dist. Apr. 15, 1949. Oswald G. Ingold and Henry Poppic for Petitioners. Edward M. Moore for Respondent. THOMPSON, J. This is a petition for a writ of prohibition to restrain the Superior Cour...
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91 Cal. App. 2d 299 (1949) EMPLOYEES' PARTICIPATING ASSOCIATION (a Corporation), Respondent, v. JACOB PINE et al., Appellants. Civ. No. 16609. California Court of Appeals. Second Dist., Div. Three. Apr. 18, 1949. Paul Gordon and Samuel H. Sherman for Appellants. Paul R. Hutchinson for Respondent. WOOD, J. This is an action to recover damages for breach of contract to purchase real property...
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91 Cal. App. 2d 304 (1949) DON D. FAUST, Respondent, v. GERALDINE L. FAUST, Appellant. California Court of Appeals. Apr. 18, 1949. Rogers & Rogers for Appellant. William Kinley for Respondent. VALLEE, J. Defendant, Geraldine L. Faust, appeals from that portion of an interlocutory decree of divorce granted to plaintiff, Don D. Faust, decreeing a portion of monies on deposit in an escrow, ...
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91 Cal. App. 2d 311 (1949) GUSTAVE L. HEIMANN et al., Appellants, v. THE CITY OF LOS ANGELES, Respondent. Civ. No. 16616. California Court of Appeals. Second Dist., Div. Three. Apr. 18, 1949. John F. Poole for Appellants. Ray L. Chesebro, City Attorney, and Bourke Jones, Assistant City Attorney, for Respondent. WOOD, J. Plaintiffs appeal from an order taxing their costs on appeal. Their me...
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Dorothea V. Draper and Emery Lattanner sued the city of Los Angeles, Howard J. Pratt, and his mother *316 and father for damages arising ont of injuries sustained when an automobile driven by plaintiff Draper was struck by a car driven by Howard J. Pratt, plaintiff Lattanner being at the time a guest in the Draper car. The default of Howard J. Pratt was entered. The action was tried to a jury u...
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By written contract dated March 19, 1947, the plaintiffs agreed to buy from the defendant a crop of oranges on a 4-acre tract at a certain price per box. The contract, which was executed for the plaintiffs by Robert R. Greenberg, contained a provision that it should not be modified or amended, in whole or in part, by any oral statement or representation on behalf of either party. The plaintiffs ha...
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91 Cal. App. 2d 322 (1949) Estate of JOHN LEWIS, Deceased. LUELLA MARTIN, as Executrix, etc., Appellant, v. STANLEY RUSSELL KELLER et al., Respondents. Civ. No. 3780. California Court of Appeals. Fourth Dist. Apr. 18, 1949. Calvin H. Conron, Jr., for Appellant. Harvey, Johnston, Baker & Palmer for Respondents. BARNARD, P. J. This is an appeal from an order and decree construing the mea...
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91 Cal. App. 2d 328 (1949) JOHN L. BLACK et al., Appellants, v. BESSIE FAE BLACK, Respondent. Civ. No. 16728. California Court of Appeals. Second Dist., Div. Two. Apr. 19, 1949. Loughman & Loughman, Zeutzius & Steffes and A. P. G. Steffes for Appellants. Haywood Ardis, Harry J. McClean and Henry F. Walker for Respondents. MOORE, P. J. A. R. Black departed this life November 8, 1945...
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From a judgment granting plaintiff the exclusive custody and control of her minor child, defendants appeal. Plaintiff is the natural mother of the infant in question *338 who was born July 13, 1945, and for whose custody she has petitioned. The child is the issue of a clandestine love affair between plaintiff and defendant Stacey Elliott Owens. At the time of his birth and at the time of tria...
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The assignee of Universal Utilities, an insolvent limited partnership, sued a limited partner to enforce her agreed contribution to the capital. Prom an adverse judgment such limited partner appeals. The partnership consisted of two general and five limited partners. By her answer and her testimony as a witness, appellant admitted that she had never paid any part of her promised contribution. S...
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91 Cal. App. 2d 346 (1949) THE PEOPLE, Respondent, v. JACK GORDON LEWIS et al., Appellants. Crim. No. 716. California Court of Appeals. Fourth Dist. Apr. 19, 1949. Thomas Whelan for Appellants. Fred N. Howser, Attorney General, and James A. Doherty, Deputy Attorney General, for Respondent. GRIFFIN, J. Defendants and appellants Jack Gordon Lewis and Sidney Earle Almgren, and defendant Wesle...
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Robert Burr was injured while riding on a motorcycle operated by his brother, Le Roy Burr. Mrs. F. H. Burr, the mother of these two, was the owner of the *354 machine, and it was being operated at the time of the accident by Le Roy with the owner’s permission. W. H. Goss, accompanied by his wife, was operating an automobile at the time and the two vehicles came into collision at a street inters...
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Plaintiff, who had been the successful litigant in an action for divorce, moved for execution after five years under the provisions of section 685 of the Code of Civil Procedure. A decree of divorce had been entered in October, 1933, awarding plaintiff custody of the two minor children, $50 a month for the support of plaintiff, and $50 a month to be paid to plaintiff for the support of each minor ...
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The defendant was convicted of burglary and a violation of section 288a, Penal Code. The judgments of conviction were affirmed by this court on December 4, 1946. (People v. Porter, 77 Cal.App.2d 142 [174 P.2d 873].) No petition for rehearing or for hearing in the Supreme Court was filed and the remittitur was issued to the superior court in due course. Defendant, after the lapse of nearly a year a...
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Defendant was tried before a jury on an information charging burglary. The jury returned a verdict of guilty and determined it to be of the second degree. Though represented by counsel during the trial defendant prosecutes in propria persona his appeal from the judgment and from the order denying him a new trial. A police officer while on patrol saw the defendant and one other in a tobacco shop at...
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91 Cal. App. 2d 365 (1949) JEAN I. GILLIS, Appellant, v. ROYALTY SERVICE CORPORATION, LTD. (a Corporation) et al., Respondents. Civ. No. 16524. California Court of Appeals. Second Dist., Div. Three. Apr. 20, 1949. Faries & McDowell, C. E. McDowell, McIntyre Faries and Willard J. Stone for Appellant. Verne E. Robinson and Harold L. Green for Respondents. WOOD, J. Action to quiet title t...
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91 Cal. App. 2d 371 (1949) Estate of JOSEPH JEWEL MEALY, Deceased. MARILLA MELLO, Appellant, v. CHARLES E. BURCHELL, Respondent. Civ. No. 7576. California Court of Appeals. Third Dist. Apr. 20, 1949. Riggins, Rossi & Streblow for Appellant. Palmer & York for Respondent. ADAMS, P. J. Appellant, who is the half sister of Joseph Jewel Mealy, deceased, appeals from two orders of the pr...
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The defendant was convicted of four counts of first degree robbery. Two cases, each with two counts against him were consolidated for trial. Defendant and his counsel waived trial by jury; upon stipulation of the district attorney and counsel for defendant, part of the testimony considered by the trial court was the reporter’s transcript of the evidence on the preliminary examination before the co...
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Plaintiff brought this action for the recovery of damages sustained through the alleged breach of an agreement with defendants 'under which he was to transport goods for defendants throughout Los Angeles County. Defendants answered the complaint and made a motion for summary judgment, which was granted. Plaintiff appeals. Although the only ground stated in defendants’ notice of motion was ...
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Justine V. Pingree, the former guardian of the person and estate of Edward Kenneth Romine, a minor child, has appealed from a judgment rendered under section 1580, subdivision 8, of the Probate Code, terminating her guardianship on the ground that it is no longer necessary, and restoring the child to the custody of his father. It is contended the judgment is not supported by the evidence for th...
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This is an appeal from an order of the Superior Court of Nevada County, denying petitioner’s application for a writ of coram nobis. At that hearing the peti *396 tioner appeared in proper person, as he did on appeal to this court. It is contended the petitioner, who was charged in three counts of an information with different felonies growing out of the same transaction, and with two prior ...
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91 Cal. App. 2d 401 (1949) JULIA MAY PRATT, Respondent, v. ARTHUR K. HODGSON, Appellant. Civ. No. 3771. California Court of Appeals. Fourth Dist. Apr. 22, 1949. Guy Knupp, Jr., for Appellant. Jamison & Jamison for Respondent. GRIFFIN, J. Plaintiff brought this action against defendant alleging ownership of a lot near Porterville 365.65 feet in depth with a south frontage of 75 feet on ...
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Appellants sued for the conversion of household furniture and furnishings and other property, alleging its value to have been $3,775.25. They recovered a judgment for $1,000, with 7 per cent interest from the date of conversion, but deeming it inadequate they have appealed. Appellants were tenants of a four-room apartment in San Francisco and when their occupancy terminated on December 23,...
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Plaintiff sued on five promissory notes, four of which were executed in the name of “Poverty Hill Mine, by A. J. Oyster,” one signed by “A. J. Oyster.” All notes were made payable to plaintiff without restrictions. The trial was had without a jury and judgment went for defendant. In 1938, a limited partnership called Poverty Hill Mine was formed by plaintiff, defendant and one C. C. Trowbr...
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Plaintiff and appellant, Joaquin B. Deniz, as administrator of the estate of Joe B. Deniz, deceased, filed this action against defendant and respondent Jack Ferraiz, *417 as executor of the last will of Caroline Xavier, deceased, to have a deed executed by Joe B. Deniz to Caroline Xavier, covering a house and lot in Los Angeles County, declared to be a mortgage and to declare that the loan whic...
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There are two appeals by appellant, a daughter of decedent, from three orders of the probate court: (1) from the minute order dated March 29, 1948, denying the petition for accounting, for revocation of letters of administration, and for the appointment of a disinterested administrator; (2) from the decree settling the first account of the administratrix and supplement thereto, dated April 13, ...
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Plaintiffs’ complaint herein contained two causes of action: the first, for damages, alleged a breach of contract by the defendants which made it impossible for plaintiffs to perform thereunder, and the second sought a sum of money alleged to be due as payments under the same contract. As to the first cause of action a nonsuit was granted, and on the second, judgment was entered in favor of pla...
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This is an appeal from a judgment in favor of defendant after an order sustaining a demurrer to plaintiff’s complaint without leave to amend. The complaint set forth the following allegations: Defendant is the duly appointed and acting executrix of the estate of W. C. Fields, who died on December 25, 1946. Plaintiff married decedent in California on April 8, 1900, and was his wife at all t...
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Cecelia Wilson, an alleged incompetent person, brought this action through the guardian of her person and estate, seeking judgment against William H. Samp *456 son and his son, Raymond E. Sampson, and his son’s wife, Shirley E. Sampson. The amended complaint, which will hereinafter be referred to as the complaint, was in six counts. The first alleged that on April 27, 1946, plaintiff was the ...
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The defendant has appealed from a judgment of $1,951.96, which was rendered against him for labor and materials furnished pursuant to an oral agreement of employment in the construction of a wharf on Almanor Lake. The cause was tried by the court sitting without a jury. Findings were adopted favorable to the plaintiff. The court found that defendant orally hired plaintiff on March 29, 1947, to ...
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This is an action for damages. Defendant corporation operates the “Ice Arena” in Fresno. It promotes and controls ice hockey games between a team representing defendant corporation and other teams playing in the Pacific Coast Hockey League. On the night of October 28, 1947, such a game was being played in the arena. Plaintiff and her husband attended it for the first time and they knew not...
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This appeal was taken from a judgment on the verdict for $20,000 in a Jones Act [38 Stats. 1185, 46 U.S.C.A. § 688] case. The S. S. “San Joaquin,” one of appellant’s river boats, was tied to the dock in San Francisco and respondent, one of her crew, was engaged in getting the shore-end of her gangplank onto the dock. From the plank’s end he had carried a rope line to a motor jitney, to which he ha...
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Plaintiff and appellant appeals from a judgment denying her relief in a suit to reform a deed to certain real property in St. Francis Wood, San Francisco, hereinafter referred to as the home, annulling a deed to her from her deceased father of the home and a joint tenancy deed to another parcel of real property in San Francisco, hereinafter referred to as the Shipley Street property, quieting cro...
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assigned.—Defendant appeals from a judgment in favor of plaintiff in the principal sum of $12,410.28 with interest thereon. The principal amount represents what the trial court found to be unearned interest on three promissory notes secured by mortgages paid to defendant by the plaintiff under duress. Taking the three notes in their inverse chronological order as they are pleaded in the co...
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Defendant was convicted by a jury of a violation of section 288 of the Penal Code for committing an act therein denounced on a female child 11 years of age. He appeals from the order denying his motion for a new trial. Appellant first says that the district attorney was guilty of prejudicial misconduct in his argument to the jury. In the course of his argument the district attorney referred to app...
Views: 8
Defendants Ben Lomond Fire District and Earl L. Lyon, Frank R. Pimentel, and F. A. Whitaker, commissioners of Ben Lomond Fire District, filed on October 3, 1947, a notice of appeal from a judgment and decree entered *506 on July 28, 1947, and from certain orders granting or denying motions in reference to certain injunctive proceedings and from the order denying defendants’ motion ...
Views: 4
Appellant was convicted in a jury trial of three charges of violation of section 288 of the Penal Code. He appeals from the judgments urging insufficiency of the evidence to establish his guilt and error in the instruction of the jury. *525The victims were three girls, one 9 years of age and the other two aged 11. The scene of the oflenses was a public park in the Arroyo Seco in the city of South ...
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Boote’s Hatcheries and Packing Company, Incorporated, a foreign corporation, petitioned this court for a writ of prohibition restraining the superior court in and for the county of Merced from proceeding in an action instituted by one Henry Giebeler. An alternative writ issued. A summary of the pertinent allegations of the petition . shows that the petitioner is a corporation duly organized und...
Views: 1
This is an appeal from a judgment in an action for declaratory relief. In 1919, a tract of about 183 acres was subdivided into the equivalent of 2,640 lots for the purpose of oil development. The plaintiff, which will be referred to as East Coalinga, acquired title to this tract and sold a large number of the lots at a price of $110 per lot. Each purchaser of a lot executed a drilling contract wit...
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All defendants were convicted in the superior court of two crimes: (1) rape, and (2) conspiracy to commit rape. At judgment, the court ordered the sentences for the two offenses to run concurrently. From the judgment after jury verdicts, all defendants appealed. Motions for new trial and probation were denied.. Three contentions are made: (1) the trial court erred in denying defendants ’ motion...
Views: 14
Petitioner seeks a writ of prohibition directed to the Superior Court of the County of Los Angeles to arrest the rendition of a judgment by default against him in an action for false imprisonment, entitled “Arthur G. Penberthy v. Fernando Gerard, et al.,” No. 554662, on the ground that the purported service of the complaint and summons on him is wholly void and of no effec...
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This action was brought to compel defendants to reconvey to plaintiffs a certain lot in the county of Fresno, or in the alternative, for a permanent injunction restraining defendants from using the property for any purpose except a service station and residence. On January 1,1947, an option was given by plaintiff Sidney S. Beran to defendant Doyle A. Harris for the purchase of the property...
Views: 4
Petitioner had been confined in the Coalinga City Jail on some charge and was subsequently charged in a complaint issued by respondent, W. H. Grant, Judge of the City Court of Coalinga, with the “crime of misdemeanor” in that he “did wilfully and unlawfully destroy and injure certain parts of the Coalinga City Jail, to wit: did break and injure a water basin and 2 water faucets causing water to f...
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Plaintiffs brought suit for damages for personal injuries sustained as the result of an automobile collision, while they were riding as passengers in a Greyhound bus on the public highway in Sacramento County. The cause was tried with a jury which returned a verdict for defendants. A motion for new trial was denied. Judgment was rendered against plaintiffs. From that judgment this appeal was pe...
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This is an appeal from a judgment rendered by the Superior Court of Stanislaus County, denying a petition for a writ of error coram nobis filed by appellant in which proceeding petitioner sought an order setting aside a judgment convicting him of forcible rape, on October 16, 1945, alleging that at his trial he had been ‘ ‘ deprived of substantial rights and due process of law,” and that the ju...
Views: 7
This is a motion by respondents to dismiss an appeal on the ground that the judgment appealed from is interlocutory and therefore not appealable. The present motion affects but one of the two appeals now pending between these parties. It appears from the record that respondents had been affiliated with appellants in a grand lodge and subordinate lodges of a Negro Masonic fraternity. Respon...
Views: 9
The plaintiff commenced this action for the alleged breach by defendant of a contract for the sale of shares of stock by filing a complaint in the city and county of San Francisco. Defendant moved for a change of venue to Los Angeles County, supporting his motion by an affidavit alleging that county to be his place of residence. Plaintiff filed an affidavit in opposition to the motion in which ...
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John S. Hill died on July 6, 1942. Title to the property in litigation then stood of record in his name under a deed from his daughter, respondent herein, dated July 3, 1926, and recorded June 19, 1935. The property is on the corner of Twentieth and Lexington Streets in San Francisco and is improved with a two-story dwelling. Appellant sued to quiet title thereto, joining as defendants the resp...
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This case arises out of a particularly aggravated tort. Plaintiffs, husband and wife, were tenants of defendant Geltis, living with their three children in an apartment rented from Geltis. Geltis and his wife lived in the same apartment building. On or about July 30, 1945, defendant Ernstan appeared at the plaintiffs’ apartment and removed nine windows and several doors from the apartment, statin...
Views: 7
This is an appeal from a judgment of conviction and from an order denying a new trial. An indictment in 10 counts was returned, accusing appellant of 10 violations of section 288 of the Penal Code and alleging two prior convictions of felonies, with time served on each. Appellant pleaded not guilty, admitted one of the priors, a burglary in 1928 in Los Angeles County, and denied the other, which w...
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Carl H. Hansen, deceased, made a will September 22,1943, by the terms of which he bequeathed $1.00 to his then wife, Doris Hansen, and the entire residue of his estate to the child of their marriage, Sheila Virginia Hansen. The will was duly admitted to probate and thereafter Doris, who had remarried to one Toomey, filed a petition for a decree determining her,interest and that of the daughter ...
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Appellant Victor Raahauge, one of the cotrustees of a testamentary trust established by the terms of the will of Gertrude Raahauge, deceased, filed his petition in accordance with the provisions of section 1120 of the Probate Code for an order confirming and approving the purchase of corporate stock. Objections were filed by his cotrustee and two of the beneficiaries of the trust, which objecti...
Views: 1
By her petition for final distribution of the estate of Myrtle Adams Horgan, deceased, the respondent executrix sought an order of the probate court decreeing that James Henry Horgan, the surviving spouse of said *619 deceased, was entitled to the use and benefit of certain property more particularly described hereafter, for the period of his natural life or until he should remarry. The appella...
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Charles F. Ferdun and Ernest Ferdun have separately appealed from a decree of final distribution in the estate of Lillian Ferdun, deceased. The appeals involve the construction of the language of the holographic will of the decedent. The appellants filed separate oppositions to the petition for distribution. The opposition of Charles, a nephew of the decedent, merely alleges that it was the in...
Views: 0
By an information filed on May 27, 1948, the defendant was charged with the commission of the crime of grand theft in that on or about November 27, 1946, he unlawfully and feloniously took the sum of $300, which sum was the property of the .estate of Joseph 0. Beaudry, deceased. At the time of the alleged theft the defendant was the duly qualified and acting executor of said estate. After a preli...
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The defendant was charged in two in-formations with separate crimes of rape and robbery of different individuals. The first information charged him with rape of Sedona Yarger committed on June 8, 1948. The second information was couched in two counts. The first count charged him with rape of Myrna Eunice Everson committed on March 21, 1948. The second count charged him with robbery of the husband...
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This proceeding is the aftermath of our decision in McCulloch v. Liguori, 88 Cal.App.2d 366 [199 P.2d 25], and is based upon a petition for a writ of mandate, certiorari or prohibition, whichever is appropriate, to undo the action of the trial court in granting a new trial in the above mentioned case. On such petition, we issued an alternative writ of mandate. *643...
Views: 9
Defendant Ping presents this appeal from an order directing execution to issue against him under Code of Civil Procedure, section 685. The judgment was entered on May 14, 1932, and the order for execution was made on December 26,1947. An amended affidavit made by plaintiff and respondent in support of his motion shows the following: Immediately after rendition of judgment respondent made demand on...
Views: 0
The question to be determined upon this appeal is whether the court abused its discretion in refusing a judgment for declaratory relief. Plaintiff, alleging itself to be a taxpayer, brought this action (1) for an injunction to restrain defendant board of supervisors from approving and ordering the payment of an appropriation to defendant County Supervisors Association, and (2) for a judgme...
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From a judgment against the corporate defendant only it has appealed on the ground that the contract of the parties violated master price regulation No. 445, promulgated pursuant to the federal Emergency Price Control Act of 1942 [56 Stats. 23, 50 U.S.C.A.App. § 901 et seq.] In January, 1945, respondent agreed to procure for appellant the right to purchase specific brands of whisky from ag...
Views: 0
The question for decision is whether the evidence was sufficient as a matter of law to establish the negligence of the proprietor of a place of public amusement, the patron having suffered personal injuries resulting from a fall caused by a slippery, repulsively odoriferous substance on the floor. Respondent was a pay customer at appellant’s theater. It opens regularly at 9 o’clock a. m. a...
Views: 2
Defendant having been convicted under two counts for violating section 288 of the Penal Code, demands a reversal of both judgments upon two grounds, to wit, (1) insufficiency of the evidence and (2) errors in the instructions. The sufficiency of the proof in testing the validity of a judgment is not determinable from the testimony adduced by appellant or by a balancing of the evidence presented...
Views: 7
Defendant was tried by a jury, was found guilty of burglary in the second degree and was sentenced to the state prison. This appeal is from the judgment of conviction. As ground for reversal defendant asserts that the court erred in admitting the testimony of the witness Otis Baisley given at the preliminary hearing, no foundation having been laid therefor. Section 686 of the Penal Code pro...
Views: 6
The writ of habeas corpus was issued on a petition averring that the prisoner was being held without a commitment. According to the record that has been filed, that averment, when made, was justified by the facts then in the knowledge of the attorney for the petitioner, but the record shows that in fact a commitment had been issued. It appearing to the court that the trial court had jurisdiction o...
Views: 10
From a judgment in favor of plaintiff after trial before a jury in an action to recover damages for injuries sustained by plaintiff as the result of a fall upon a sidewalk in the city of Los Angeles, defendant city appeals. *680 Facts The evidence being viewed in the light most favorable to plaintiff (respondent) the facts in the instant case are: On September 10, 1946, about 12:05 p. m. ...
Views: 11
From a judgment in favor of plaintiffs after trial before the court without a jury in an action to recover secret profits obtained by defendants while acting as agents for the sale of property of plaintiffs, defendants appeal. *685 Tin evidence being viewed in the light most favorable to plaintiffs (respondents) the essential facts are these: In November, 1945, plaintiffs were the owners of...
Views: 1
This is an appeal by plaintiff from a judgment in favor of defendants after trial before the court without a jury in an action to recover secret profits made by defendants while allegedly acting as agents for plaintiff. Plaintiff purchased a piece of property known as 602 South New Hampshire Street, Los Angeles, for the sum of $28,000. She contended at the time of the trial that defendants were ac...
Views: 0
Petitioners seek a writ of prohibition to restrain the respondent court from proceeding with a retrial of an action entitled “Nathan Posner v. Russel K. Chapman, et al.,” No. 853969, in the Municipal Court of the City of Los Angeles, in which a motion for new trial had been granted upon plaintiff’s motion after a judgment had been rendered in favor of defendants. Petitioners also seek a writ of...
Views: 8
Defendants Burton, Martin and Sugarman were prosecuted upon an indictment containing nine counts, which may be summarized as follows: Count 1. Burton, Martin and Sugarman were charged with conspiracy to commit grand theft of $15,550.59 from the Phoenix Assurance Company on or about March 1, 1946. *699 Count 2. Burton, Martin and Sugarman were charged with grand theft of said amount from s...
Views: 20
Defendant appeals from a conviction of a felony : violating section 1, chapter 339, Statutes of 1923 (1 Deering’s Gen. Laws, Act 1970). The information charged the defendant with carrying, concealed upon his person, a certain dirk or dagger. On appeal it is urged that the evidence is insufficient to justify a conviction; that the district attorney was guilty of *718 misconduct; that the court...
Views: 9
Defendant appeals from a judgment of conviction of assault with a deadly weapon and from an order denying a new trial. The information in two counts charged assaults on different parties. The jury failed to reach a verdict on the first count. The second count is the basis of this appeal, and alleges an assault with a deadly weapon upon one Walter Szajna. It is claimed that the court erred in permi...
Views: 8
Appellants entered into an agreement with respondents which included a provision that appellants should construct a building and lease it to respondents fully equipped as a market and which agreement further provided: ‘ ‘ Lessor agrees to furnish a parking lot paved with macadam for the use of Lessee’s customers, subject to reasonable regulations established by Lessor; that Lessee shall not be re...
Views: 0
This is an appeal from the judgment. The action is for an accounting and one-half of the profits earned in a joint venture of plaintiff and defendant. The answer in addition to a general and special denial alleges an affirmative defense of estoppel in that plaintiff *730had accepted payment of a certain sum in full settlement, also that the contract had been fully performed by defendant. The facts...
Views: 6
This is an appeal from a judgment entered after the granting of a nonsuit in a personal injury action brought against William Owen Adair, who was driving his own automobile when it was involved in an accident, and respondent, General Air Conditioning Corporation, employer of the defendant Adair. The nonsuit was granted as to respondent corporation upon the ground that at the time of the ...
Views: 0
This is an appeal from the judgment. Defendant was charged by information with the offense of forgery and tried by the court; a jury was duly waived. As recited in appellant’s brief: “The case involves a check that was given to a man in a beer place and apparently bore the indorsement of the appellant. The check was made out in the name of a woman who was in the hospital and who had from time to t...
Views: 0
Plaintiffs, Harry B. Elmers and his mother Margaret Elmers, purchased a duplex dwelling located on Woodside Way, in San Mateo. This building had been constructed with priority materials secured under federal permits, and, pursuant to federal legislation, the proper federal agency had placed a ceiling price of $13,700 upon it. Plaintiffs purchased the duplex for $8,000 in cash and a five-room ho...
Views: 8
Defendant appeals from that portion of the judgment herein which awards to plaintiff the sum of $6,110.41 on the first cause of action alleged in her amended complaint which was based on a promissory note for $4,000, dated September 1, 1938, due two years after date, and executed by Victor C. Emden. The answer alleges that said cause of action is barred by sections 335 to 337, inclusive, o...
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Appeal from an order denying a motion to vacate a judgment and sentence. While the motion is denominated as stated, we construe it to be also a motion to vacate a plea of guilty. Defendant was charged by information with four counts of issuing checks without sufficient funds, felonies, and a prior conviction of forgery, a felony, in Minnesota, and serving a term therefor in the state prison. He...
Views: 10
About 11:00 a. m. on March 5, 1948, 'two men, each holding a revolver in his hand, robbed the office of a used car lot in Fresno. They threatened three employees with the guns and took $24. When these employees were unable to open the safe the men left, taking a black Ford car belonging to the owner of the lot. This Ford car was found on another parking lot the next day. The same day, March 6, a ...
Views: 12
From a judgment in favor of defendants in an action to recover damages for personal injuries, plaintiff appeals. He has also purportedly appealed from the order denying a new trial. Plaintiff, a minor 4 years of age, was taken by his parents to the circus operated by defendants. Following the performance in the main tent they went to see the animals in the “animal tent” and it was there th...
Views: 12
The two sections, consolidated for trial as well as for appeal, involve virtually the same issues, but differ as to parties and in respect to the parcels of real estate involved. The original pleadings filed by the plaintiffs were conventional quiet title complaints. When the cases came on for trial plaintiffs asked leave to file amendments setting up a second cause of action but permission to ...
Views: 4
By information defendant was charged with a violation of section 337a, subdivision 3, Penal Code, a felony, to wit: receiving, holding or forwarding bets on horse races. He pleaded not guilty and waived a jury trial. The prosecution’s case was submitted on the transcript of the preliminary hearing; defendant testified in his own behalf and the trial court found him guilty as charged. Thereafter, d...
Views: 2
After trial before the court without a jury, plaintiff appeals from the portion of the judgment which denies him recovery for trucking services rendered to defendants in accordance with the minimum rates for dump truck hauling services as defined and prescribed by the Public Utilities Commission of -the State of California and Highway Carriers Tariff No. 7. Facts Plaintiff’s assignors...
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From a judgment denying plaintiff’s application for a decree of divorce on the ground of desertion, she appeals. The undisputed facts are these : Plaintiff had lived in the county of Los Angeles, State of California, for about 25 years prior to February 19, 1948, *812the date the present action was filed. She and defendant were married February 21, 1923. On November 11, 1930, defendant without exp...
Views: 5
This is an appeal from a judgment in an action for damages for negligence in the storage of frozen shrimp. On May 28, 1946, plaintiff delivered to defendants at their place of business in Fresno, and defendants accepted for storage, 5,000 pounds of frozen shrimp in 100 cases of 50 pounds each, to be stored and kept by defendants in a frozen state and delivered to plaintiff on order. The shrimp was...
Views: 0
Plaintiff and appellant Leslie B. Logan and his wife Doris, brought this action against defendants and respondents Mrs. John C. Serpa and her daughter Alice Serpa, for damages arising out of an automobile collision. The complaint alleges that on October 7, 1945, defendant Alice Serpa, aged 24, was driving a Chevrolet belonging to her mother and with her consent, and while so driving was ac...
Views: 6
J.This is an action for annulment of marriage on the ground of fraud. The complaint was filed *824 on July 23, 1940. Among other things, it alleged that the parties were married on May 9,1934, in Rome, Italy; that both parties then resided in Cleveland, Ohio; that immediately following the marriage both parties returned to Cleveland, where they made their home; that the plaintiff’s consent to t...
Views: 1
This is an appeal from a judgment for defendant, The Boys’ Market, Incorporated, entered notwithstanding the verdict of a jury in favor of plaintiff. Plaintiff sought to recover for injuries sustained when she slipped on a banana or banana peel while shopping in the market operated by defendant. Judgment notwithstanding the verdict was granted on the theory that there was no substantial evidenc...
Views: 9
During the latter part of 1947, the defendant and two associates were engaged in buying and selling secondhand automobiles. They became acquainted with a gentleman by the name of Jack L. Keyser and entered into an agreement with him whereby it was agreed to carry on this enterprise with a business setup as follows: Mr. Keyser was to be the owner. The defendant was to be general manager, and def...
Views: 9
In a suit for damages for personal injuries sustained by a pedestrian while he was walking along the outer edge of a public highway in the nighttime, as the result of having been struck by an automobile approaching *846 from behind him, the jury returned a verdict in fax’or of the defendant Lionel R. Zumwalt. A judgment for defendant was rendered accordingly. From that judgment plaintiff has ap...
Views: 8
Defendants have appealed from an order granting plaintiffs’ motion for new trial after a jury returned a verdict in favor of defendants in an action by plaintiffs to recover damages for the death of their 9-year-old son who was run over and killed by a trailer attached to a truck belonging to F. 0. and Katherine C. Johnson and driven by their employee, James L. Tull. The order of the court gran...
Views: 9
Defendant Jack Chapman and his 17-year-oid son-in-law, Donald Larios, were charged, in an information filed in Tuolumne County, with three felonies, to wit: robbery while armed with a deadly weapon, assault with a deadly weapon, and assault by means of force likely to produce great bodily harm. During the course of the trial, and before the defendants had gone into their defense, the district att...
Views: 8
Plaintiffs brought this action alleging themselves to be the owners and holders severally of participating interests in the production from four certain oil wells designated as wells Nos. C, 7, 8 and 9 which are and for some years have been operated by defendant George V. Graner. For convenience we shall refer to the several interests in production as “units.” It was alleged that plaintiffs are...
Views: 1
This is an equitable suit to determine the title to and possession of a conditional legacy of $25,000, which was distributed in trust, pursuant to the terms of a will. The will bequeathed the legacy to the executor of the last will and testament in trust nevertheless to be by him delivered into the possession of an established, recognized and responsible trust corporation, for the benefit of plai...
Views: 0
The plaintiffs, who are the surviving widow and minor children of Charles E. Connors, have appealed from a judgment of nonsuit which was granted at the close of their evidence. Mr. Connors, who was driving *874a truck loaded with fruit on the public highway in the nighttime, was instantly killed as the result of colliding with a Southern Pacific railway train which was crossing the highway on a sp...
Views: 3
This is an appeal from a judgment for defendant in an action for partition. Plaintiff is the granddaughter of defendant and at the time this action was tried, was married and of the age of 19 years; At the age of 9, plaintiff, whose parents were deceased, with her two sisters and a brother came to live with defendant in Oklahoma. Defendant, a widow, assumed responsibility for the care and educa...
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assigned.—Plaintiff appeals from a judgment ,of dismissal entered after demurrer sustained to his second amended complaint and his failure further to amend pursuant to leave granted. The second amended complaint alleges that plaintiff is a professional musician, that he was employed by .defendant to perform services for it as a musician, that the defendant employer directed him as employee to s...
Views: 1
Plaintiff appeals from a judgment of non-suit. On October 7, 1946 between 4 and 4:30 p. m. plaintiff was struck by a northbound streetcar of the San Francisco Municipal Railway operated over San Bruno avenue. Plaintiff was employed by a roofing contractor as a member of a crew engaged in installing a roof on a building under construction. His particular duty was to tend the tar kettle in which ta...
Views: 7
This is an appeal from an order granting a preliminary injunction. The court enjoined the board from “enforcing [as to plaintiff] or seeking to enforce any of the price orders and price lists of which copies are annexed to the complaint ... as Appendices A, B and C, and . . . from establishing any minimum price schedules pursuant to the provisions of Sections 9563 through 9566 of the Business and...
Views: 1
Sidney N. Elliott and Frank Riga, Jr., appeal from judgments on verdicts which awarded plaintiffs damages for false imprisonment, namely, to Bob L. Butcher $1,000, to George Moore $1,000, and to Morley B. Turner $1,200. Two grounds of appeal are urged by appellants, namely, that the evidence was insufficient to prove that either of the appellants was responsible for the arrests of plaintiffs, and...
Views: 11
This is an appeal from an order denying motion of defendant and appellant to discharge an attachment issued and levied upon its bank account. The appeal is presented upon a clerk’s transcript. The action is based upon a fire allegedly caused by defendant’s negligence. Plaintiffs are seeking to recover damages for the destruction of and injury to their real and personal property, for loss of pro...
Views: 1
Appellant was charged with assault with a deadly weapon upon her husband, George W. Ingram, with intent to commit murder. She was convicted of assault with a deadly weapon by the court, sitting without a jury, and sentenced to the county jail. She appeals from the judgment. Appellant claims that the evidence is insufficient to support the judgment. The claim is without merit. The facts are thes...
Views: 14
Appellant was convicted of a violation of Penal Code, section 337a, subdivision 3, providing that every person who receives or holds, or purports or pretends to receive or hold, any money wagered or to be wagered, or offered for the purpose of being wagered, upon the result or purported result, of any contest or purported contest, of skill, speed or power of endurance between beasts, is guilty *...
Views: 29
Appellant was convicted of a violation of Penal Code, section 337a, subdivision 3, which provides that every person who, whether for gain, hire, reward, or gratuitously, or otherwise, receives, holds, or forwards, or purports or pretends to receive, hold, or forward, in any manner whatsoever, any money, or consideration of value, or the equivalent thereof, bet or wagered, or to be bet or wagered,...
Views: 5
This is an appeal from a judgment of the trial court dismissing plaintiff’s fourth amended complaint after an order of the court sustaining defendant’s demurrer to said complaint without leave to amend had been entered. The first cause of action, which is incorporated in its entirety in the second and third causes, alleged the corporate existence of the defendant; the purchase by plaintiff of a...
Views: 4
Defendants, appellants before us, executed .and delivered to plaintiff their promissory note for $8,300 on or about May 13, 1946, secured by a second deed of trust covering certain real property in Chester, Plumas County. Thereafter defendants turned over to plaintiff one RD-8 caterpillar tractor with bulldozer attachment, either as further security for the note, or as a renting for plaintiff’s us...
Views: 0
As administrator and as brother and heir at law of the deceased, Harry Raphael appeals from the judgment and modified judgment decreeing “that all of the estate of Raymond Theodore Raphael, both real and personal, on the date of the death of said deceased was the community property of Raymond Theodore Raphael and his widow, Bertha Rado Raphael. ’ ’ The appeal taken in the capacity of administra...
Views: 9
In addition to the appeal taken in Estate of Raahauge, ante, page 615 [205 P.2d 1122], the appellant therein also filed in this court his petition for review of the action of the trial court in refusing to confirm the purchase of the corporate stock there in question. The purpose in filing said petition for review was as stated therein “to prevent loss of his right to a review of said judgment in ...
Views: 0
Convicted on a charge that she had failed to yield the right of way to a pedestrian in a crosswalk, the defendant contends that the judgment of conviction should be reversed because the trial court failed to give her requested instruction that “under the laws of this State, a married woman is not capable of committing a misdemeanor while acting under threats, command or coercion of her husband.” I...
Views: 6
Plaintiffs, husband and wife, undertook to purchase real property. It was encumbered with a trust deed given to secure payment of a purchase money promissory note of $8,964.16. The note provided for payments of $90 a month. An escrow agreement was entered into for the purpose of putting the deal through. Then it was discovered that the owners of the property from whom the plaintiffs were purcha...
Views: 1
From a judgment of guilty of murder of the second degree after trial before a jury, defendant appeals. He also appeals from the order denying his motion for a new trial. ' Viewing the evidence in the light most favorable to the People (respondent) the essential facts are: Mr. Bradley and a friend named Slater were sitting under a pepper tree on the south side of Filbert Street in Duarte, when defe...
Views: 0
Appellant, who is the mother of George Francis LeVan, Jr., a minor * , appeals on the judgment roll alone from an order of the Juvenile Court of Los Angeles County made January 3, 1949, releasing the custody of the *8 minor to the probation officer for placement in the home of the minor’s father. Appellant asks that this court reverse the judgment of the juvenile co...
Views: 0
Appeal by defendant Crescent Commercial Corporation from a judgment for plaintiffs in an action in which each plaintiff sought a cancellation of a contract and the recovery of monies deposited with defendant pursuant to a contract entered into between him and defendant. In 1946, 1947, and the early part of 1948, there was a decided shortage of beer for sale in the Los Angeles area. In March of ...
Views: 8
Defendant’s demurrer to the complaint, upon the ground that the two causes of action therein were barred by the statute of limitations, was sustained and plaintiff was given 10 days within which to amend. Plaintiff failed to amend the complaint within said time, and upon motion of defendant a judgment of dismissal was entered. Plaintiff appeals from the judgment. It was alleged in the first cau...
Views: 6
Demurrer of defendant city of Los Angeles to the complaint was sustained without leave to amend. Plaintiff appeals from the judgment thereupon entered in favor of said defendant. Plaintiff sought to enjoin said defendant, and the police chief and city clerk of said city, from enforcing against plaintiff two ordinances of the city of Los Angeles, upon the ground that the ordinances are in violat...
Views: 6
The complaint in this action alleged that within one year prior to the filing thereof the plaintiff almost daily had been vexed, harassed, assaulted and annoyed by the defendant. The acts and declarations which comprised the foregoing were specifically alleged. It was alleged that plaintiff was injured and damaged as a result thereof. The prayer was for damages and for an injunction. The court fou...
Views: 1
Petition for a writ of review whereby it is sought to annul an award of the Industrial Accident Commission. The commission made findings that the applicant, Mr. Davidson, sustained injury arising out of and occurring in the course of his employment, consisting of “precipitation of coronary thrombosis”; that the injury caused temporary total disability “beginning February 11, 1948, to and includ...
Views: 0
The defendant was charged with the crime of robbery, found guilty by a jury, and given a prison sentence. He has appealed from the judgment and from the order denying his motion for a new trial, contending that the evidence is insufficient, with respect to the identity of the robber, to support the verdict and judgment. A bartender employed at the Eagles Hall in San Diego was the only witness w...
Views: 17
This is an appeal from the judgment. Defendants Harman and McKinney had leased a health resort known as Seminole Hot Springs; plaintiff was employed to manage and operate the business. A month or so thereafter plaintiff entered into an agreement by the terms of which in substance plaintiff was to purchase an interest in the business for $7,500 provided plaintiff could obtain that amount. It was ag...
Views: 0
This is an appeal by remaindermen from an order approving report of administrator with the will’ annexed concerning the status of certain properties, determining that they were held in joint tenancy and therefore not assets of the instant estate; ordering partial distribution of a life estate in real property to the life tenant, and instructing said administrator concerning the payment by the rema...
Views: 0
This case was before the Supreme Court on an appeal from a judgment of nonsuit and that judgment was reversed. A second trial without a jury resulted in a judgment in favor of plaintiff and against all of the defendants and all of the defendants appeal. The general nature of the action and the relation of the several defendants thereto are set out in the opinion of the Supreme Court on the prev...
Views: 16
Defendant Rock Creek Water Corporation, a mutual water company, has appealed from a judgment quieting plaintiffs’ title to real property, defining and limiting the extent of defendant’s easement^ over such property for the maintenance of its water ditch, and enjoining defendant from damaging or destroying trees, shrubbery and vegetation along and footbridges across the ditch, and from other act...
Views: 0
Defendant C. R. Walker was indicted by the grand jury of Sonoma County on two counts of violation of section 249 of the Penal Code. Count one alleged that on November 1, 1947, the defendant wilfully, unlawfully and maliciously and with intent thereby to injure the persons therein named and expose them to public hatred, contempt and ridicule, published and circulated the following circular: “TO ...
Views: 3
This is an action to recover on an insurance contract covering a cotton crop to be grown by the plaintiffs on 70 acres of land during the 1946 season. The contract insured the plaintiffs, on an average yield basis, against loss due to unavoidable causes including damage resulting from frost, insect infestation and failure of the water supply. The contract also excepted from its coverage any loss c...
Views: 0
Defendant was charged in an amended information with violating the provisions of section 480 of the Vehicle Code, which was set forth in three separate counts. Count one charged that he was the driver of an automobile involved in an accident with another vehicle which resulted in the injury of two persons, Rebecca Blacksher and Rose Mary Turner, and that he did wilfully and feloniously fail and o...
Views: 15
Defendant was charged with and convicted by a jury of the crime of possession of opium in violation of section 11500 of the Health and Safety Code. He lived by himself in room 29 at a hotel in Visalia. On the night of January 12, 1949, the chief of police, accompanied by narcotic agents, encountered defendant at an address on Center Street. They suspicioned him as being a- *73 user of opium. ...
Views: 16
The sole question to be determined is whether escrow funds on deposit in a national bank on the first Monday of March are assessable to the bank as solvent credits owned, claimed, possessed or controlled by it. This appeal is from a judgment declaring that the assessment levied against respondent on escrow funds held by it, together with taxes and penalties, was erroneous, illegal and void...
Views: 1
Robert E. Keane brought this action to recover damages for personal injuries allegedly sustained by him on August 20,1945, when he tripped and fell over a rope attached to a gate upon premises rented by him from the owner, the defendant Clara McIndoe. The allegations contained in the complaint were put in issue by the answer which consisted of a general denial thereof, and the case was tried be...
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By their complaint plaintiffs sought a refund of monies paid defendant board as motor vehicle transportation license tax under the provisions of Revenue and Taxation Code, section 9601 et seq. The defendant’s general demurrer upon the ground that the action was barred by section 10278 of said code, was sustained without leave to amend, and the present appeal followed. *88From the record before us ...
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As set forth in the appellant’s brief, “This is an appeal from the judgment of the trial court wherein and whereby the defendant, Clyde N. Lewis, was found to be the father of an illegitimate child born to plaintiff, in wedlock, and which child was ordered to be supported by said defendant, as the father thereof, until the further order of this court. ” The material facts, according to said brief...
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This is a petition for mandamus to require restitution of real property to the lessee thereof, after reversal of an adverse judgment by this court. (Erickson v. Boothe, (Cal.App.) 203 P.2d 119.) Upon filing our decision on rehearing in said cited case, this petition became moot. The litigation involved in this petition is somewhat complicated. It has been before this court in three separate appea...
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This is an appeal from an order .overruling the objections of Natalie D. Mark and Louine D. Boyer, legatees and devisees of decedent Mellie M. Darby, to the report of the inheritance tax appraiser, and fixing the amount of an inheritance tax due and payable from them. The facts are not in dispute. By deed dated August 14, 1924, deceased acquired real property which is the subject of the tax here i...
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The defendant has appealed from an interlocutory decree of divorce which was rendered against him on the ground of extreme cruelty. The decree also divided the community property of the spouses between them. The appellant raises no question on appeal regarding the validity of the divorce. He thereby concedes the adequacy of the evidence to support the divorce on the ground of extreme cruelty. T...
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This is an appeal from a judgment denying admission to probate of a proffered will of Clarence Clark, deceased, and from an order denying the motion of petitioner Martin Carter Leach, named as executor in said will, to set aside the foregoing judgment and to reopen the case for the purpose of receiving further testimony. The record reflects that on October 14, 1946, petitioner and appellant Mar...
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The city of Long Beach and certain of its officials have appealed from a judgment of the Superior Court of Los Angeles County granting to petitioner and respondent, a policeman of said city, a writ of mandate requiring the city to pay him an annual pension equal to 50 per cent of his annual salary plus 1-2/3 per cent of his annual salary for each year of service over an aggregate of 20 years. ...
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This appeal is taken in an action for damages for false arrest and imprisonment brought against three members of the Police Department of the city of Beverly Hills, C. IT. Anderson, Chief of Police, Captain W. W. White, Chief of Detectives, and Sergeant Ray Borders. The cause was tried before a jury which brought in a verdict against defendant Anderson for $6,000 and against defendant White for $4...
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This is an appeal from an order denying motion for change of place of trial. The complaint alleges an unpaid doctor’s bill for $2,500, assigned to the plaintiff for collection. Three counts are averred in the complaint: debt, account stated, and work, labor, and services. Motion for change of place of trial was made. In support of the motion an affidavit by one of the defendants was filed, averrin...
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In an information filed by the District Attorney of Los Angeles County, defendant was accused in count I of a violation of section 115 of the Penal Code (offering false or forged instruments to be filed of record); in count II with the crime of forgery, and in count III of a violation of section 132 of the Penal Code (offering false evidence). To each of the foregoing counts of the information, d...
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By virtue of a writ of attachment issued in this action, the sheriff took possession of a 1948 Hudson automobile. Kenneth F. Williams and Violet E. Williams instituted third party claim proceedings, asserting ownership and right of possession of the automobile. Judgment was in their favor, and plaintiff appeals therefrom. Appellant asserts that the evidence does not support the judgment. ...
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In this action for damages for alleged wrongful eviction, judgment was for defendants. Plaintiffs appeal from the judgment and from the order denying their motion for a new trial. In 1942, plaintiffs rented an unfurnished dwelling house from defendant Finley, who is a real estate broker and the son of defendant Mrs. Schultz, the owner of the property. The court found that on December 3, 1946, plai...
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Fridolin J. Dargo was convicted in a jury trial of the offense of grand theft and of second degree burglary. His application for probation was denied, he was sentenced to the state prison, sentences to run concurrently, execution of the sentence was suspended and he was referred to the California Youth Authority, the Youth Authority refused to accept him, and the sentences theretofore imposed wer...
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Defendant was convicted of a violation of Penal Code, section 337a, subdivision 2, in that he kept and occupied a house with papers and paraphernalia for the recording of wagers upon the result or purported result of horse races. He appeals from the judgment and sentence. His only point is that the evidence is insufficient “to connect the defendant with the corpus delicti.” The evidence follows. O...
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Plaintiffs Merle Pagh and Arthur Gold-stein appeal from separate and adverse judgments rendered in their consolidated personal injury actions upon a jury *203 verdict in favor of defendant Andrew Gibbs Rogers. The city of Los Angeles, which, as employer, filed complaints in intervention for the recovery of medical expenses, disability compensation paid, and property damage, likewise appeals fro...
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On March 3, 1949, Allie Walters Sacks was adjudged to be incompetent, L. 0. Rauch was appointed as the guardian of her estate and John C. Packard guardian of her person. Thereafter, Morris Lavine was appointed as guardian ad litem for the purpose of prosecuting an appeal from the order. Such an appeal has been taken and is now pending. L. C. Rauch, having qualified as guardian, petitioned the cour...
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This action was instituted by certain of the heirs of Mary Brunoni, deceased, to cancel and set aside a deed executed by her conveying certain real property to her *217 son, Antonio Brunoni. The complaint alleged that the decedent lacked the requisite capacity to execute the deed; that she was incapacitated from properly attending to her business by reason of old age and ill health; that the de...
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The plaintiffs have appealed from a judgment relieving the defendants, under section 3275 of the Civil Code, from their alleged default of payments due upon a contract for the purchase of real property. Plaintiffs brought suit to quiet title to the land. Defendants answered the complaint, setting up their written contract with plaintiffs to purchase the property for the sum of $15,000, upon which ...
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This is an appeal from a judgment for the plaintiff, entered on a jury verdict. The action was based, under section 403 of the Vehicle Code, on wilful misconduct of the defendant in driving at an excessive speed upon wet pavement and on a downhill curve. The answer alleged contributory negligence and, as a separate defense, that the plaintiff knew before and during the trip of any wilful miscon...
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From a judgment in favor of plaintiff against defendant . California Bank after trial before the court without a jury in an action to recover on a cashier’s check issued by Security-First National Bank of Los Angeles, payable to plaintiff, defendant California Bank (hereinafter referred to as defendant) appeals. Facts: The evidence disclosed that Security-First National Bank of Los ...
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This is an action for real estate broker’s commission and for reasonable value of services rendered. Defendants, as partners, owned certain real property in the city of San Diego, upon which a business was conducted known as Van’s Market. On March 13, 1946, defendants by letter gave plaintiff, a real estate broker, an exclusive listing to sell the property for a net price of $50,000. It was provid...
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Plaintiff purchased the furnishings and equipment of a guest house in Berkeley and took a lease upon the house in which the business was conducted from the defendant. The lease contained the following provision: "That the Lessee will not assign this Lease, or any interest therein, without the written consent of the Lessor first had and obtained, but the Lessor agrees not to withhold his wr...
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93 Cal. App. 2d 247 (1949) GEORGE FABBRO, Respondent, v. DARDI & CO. (a Corporation), Appellant. Civ. No. 13939. California Court of Appeals. First Dist., Div. Two. Aug. 5, 1949. Keil & Connolly for Appellant. Hardy, Carley & Brenner for Respondent. DOOLING, J. On March 15, 1945, the parties signed a document containing the following provisions: "Received of Fabbro's Cafe (Fir...
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Plaintiff appeals from a judgment for defendants entered after sustaining a demurrer to his complaint without leave to amend. The complaint alleges that on December 23,1943, plaintiff was president and a member of the board of directors of United Parcel Service of San Francisco, a California corporation; that on that date by voluntary proceedings the corporation was dissolved; that on April 7, 19...
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Isabelle Grainger, an incompetent of the age of 77 years, by and through her guardian obtained a judgment against the defendants herein for the sum of $4,400, plus interest and costs. The judgment provided that any right, title or interest which the defendants, or either of them, held in and to certain real property therein described was held in trust for plaintiff to secure to her the payment ...
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Defendant was convicted of the crimes of kidnaping and robbery and the judgment of conviction was affirmed by this court. (People v. Shuman, 64 Cal.App.2d 382 *260[148 P.2d 875].) Thereafter, the defendant made a motion in the trial court for certain records in his case which motion was denied on December 7, 1948. He thereupon filed his notice of appeal on January 12, 1949, from the order denying ...
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93 Cal. App. 2d 261 (1949) THE PEOPLE, Respondent, v. IGNACIO REBOLLEDO, Appellant. Crim. No. 805. California Court of Appeals. Fourth Dist. Aug. 8, 1949. Tom Okawara for Appellant. Fred N. Howser, Attorney General, and Frank Richards, Deputy Attorney General, for Respondent. MUSSELL, J. Appellant was duly arraigned before a magistrate on charges of violation of section 288 of the Penal Co...
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Appellant, Sigmund Pfingst, was seriously injured when he fell down an elevator shaft of the Marwedel Building located on First Street between Market and Mission Streets, San Francisco. He brought this action *267 against C. W. Marwedel, owner of the building, Joseph Mayer, a tenant, and the Otis Elevator Company, a corporation engaged in the business of repairing and servicing elevators and wh...
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93 Cal. App. 2d 276 (1949) GERALD NORWOOD, Appellant, v. FRED T. JUDD, Respondent. Civ. No. 13972. California Court of Appeals. First Dist., Div. One. Aug. 10, 1949. Bernal & Bernal for Appellant. Ralph Nathanson and Marshall Rutherford for Respondent. PETERS, P. J. Plaintiff, Gerald Norwood, brought this action against his partner in the contracting business, Fred T. Judd, for a disso...
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93 Cal. App. 2d 291 (1949) SHERMAN M. LAMONT et al., Appellants, v. WILBERT M. BALL et al., Respondents. Civ. No. 13878. California Court of Appeals. First Dist., Div. Two. Aug. 10, 1949. Irving M. Liner and Lionel B. Benas for Appellants. Deasy, Crittenden, Dodge and Alexander for Respondents. *292 DOOLING, J. Plaintiffs and appellants sued defendants and respondents for specific performa...
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93 Cal. App. 2d 295 (1949) LE ROY J. THEIN, Appellant, v. ALBERT STICHA et al., Respondents. Civ. No. 14030. California Court of Appeals. First Dist., Div. Two. Aug. 10, 1949. Joseph A. Brown for Appellant. Marvin G. Giometti, Alex L. Arguello and J. Joseph Sullivan for Respondents. GOODELL, J. Appellant brought this possessory action against respondents, who filed a cross-complaint for sp...
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Defendant Stoddard appeals from superior court orders (1) denying his motion, made under section 473 of the Code of Civil Procedure, for an order vacating the court’s order denying motion for change of venue, and (2) from an order denying his second application for change of venue. Contentions Defendant contends that the court abused its discretion in denying both motions. Procee...
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This is an appeal from a judgment notwithstanding the verdict in an action for malicious prosecution. About noon on October 4, 1946, Mrs. Sutherland was taken into custody and confined in the psychopathic ward upon an order of detention based upon a petition prepared by Dr. Andrews, the county psychiatrist, and verified by the defendant Palme. The matter was set for hearing on October 10, but s...
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93 Cal. App. 2d 315 (1949) MARTIN O. SMYTHE, a Minor, etc., Respondent, v. DANIEL V. SCHACHT et al., Appellants. Civ. No. 17032. California Court of Appeals. Second Dist., Div. One. Aug. 15, 1949. Sam Shayon for Appellants. Clayton B. Thomas for Respondent. WHITE, P. J. This action was instituted on behalf of Martin O. Smythe, 10-year-old son of his guardian ad litem, for damages predicate...
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This is an appeal from the judgment. Plaintiff filed the within action for damages based on the alleged negligence of defendant, an attorney at law, for failure to file an action for damages for personal injuries before the statute of limitations foreclosed the action. When the action was called for trial, defendant made a motion for judgment on the pleadings based on the contention that plaintiff...
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This is an action for declaratory relief involving the status of the constitution and by-laws of defendant labor union, an unincorporated association. The complaint was filed by a group of members of the Marine Cooks’ and Stewards’ Association of the Pacific Coast, sometimes known as the National Union of Marine Cooks and Stewards, on behalf of all of the members who chose to join with them. ...
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93 Cal. App. 2d 341 (1949) CATHERYN JOHNSON et al., Respondents, v. CHRISTINE MARQUIS, Appellant. California Court of Appeals. Aug. 16, 1949. Cooley, Crowley & Gaither and Vernon F. Gant for Appellant. Cleary & Zeff, C. Ray Robinson and Margaret A. Flynn for Respondents. THOMPSON, J. The defendant, Christine Marquis, has appealed from a judgment rendered pursuant to a verdict for pla...
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Petitioner seeks a writ of prohibition to restrain the superior court from hearing an order to show cause why he should not be held in contempt for failing to pay alimony. The main question involved is whether the provisions of a property settlement agreement entered into between petitioner and his wife were made an enforceable portion of the interlocutory decree in the divorce action between them...
Views: 9
93 Cal. App. 2d 365 (1949) THE PEOPLE, Respondent, v. MARIAN DEL CHAPMAN et al., Defendants; JACK LESTER CHAPMAN, Appellant. Crim. No. 2579. California Court of Appeals. First Dist., Div. One. Aug. 17, 1949. Jack Lester Chapman, in pro. per., for Appellant. Fred N. Howser, Attorney General, David K. Lener, Deputy Attorney General, J. F. Coakley, District Attorney, and Folger Emerson, Deputy ...
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This is an action for declaratory relief for the purpose of determining the validity of a lease. On August 2, 1926, the State Board of Harbor Commissioners leased certain tidelands in Mission Bay to the plaintiff for 50 years for a rental of $30 per month, together with 5 per cent of all gross income from the leased premises. The lease also required the plaintiff to expend, or cause to be expen...
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93 Cal. App. 2d 391 (1949) JEANETTE GLUCKSTEIN, Respondent, v. PHILLIP J. LIPSETT, M. D., Appellant. Civ. No. 13934. California Court of Appeals. First Dist., Div. One. Aug. 19, 1949. Robert L. Lamb, Peart, Baraty & Hassary, Geo. A. Smith and Alan L. Bonnington for Appellant. Melvin M. Belli and F. A. Devlin for Respondent. *394 BRAY, J. In a malpractice action, plaintiff recovered a j...
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This is a proceeding by plaintiff Fireman’s Fund Indemnity Company, a corporation, instituted under the doctrine of equitable subrogation, although defendant State Compensation Insurance Fund, a California state agency, assumes and argues that plaintiff is asking for contribution and that the rights and liabilities of the parties are governed by Civil Code, sections 1427 to 1432, defining and inte...
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93 Cal. App. 2d 414 (1949) H. L. GILBERT et al., Appellants, v. GUY B. ASHLEY, as City Clerk, etc., et al., Respondents. California Court of Appeals. Aug. 19, 1949. Kenneth C. Wiseman for Appellants. Colin M. Gair, City Attorney, Gray, Cary, Ames & Driscoll and John M. Cranston for Respondents. MUSSELL, J. Plaintiffs have appealed from a judgment rendered against them in an action to enj...
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93 Cal. App. 2d 417 (1949) EUGENE GOEHRING, Appellant, v. STOCKTON MORRIS PLAN COMPANY (a Corporation), Respondent. Civ. No. 7596. California Court of Appeals. Third Dist. Aug. 20, 1949. Mazzera, Snyder & DeMartini for Appellant. Lafayette J. Smallpage for Respondent. ADAMS, P. J. This is an appeal by plaintiff from a judgment entered upon a directed verdict in favor of Stockton Morris...
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On October 21, 1944, Angelina Ainoruso entered into a contract to buy from Archie L. Carley and Gertrude A. Carley, about 3% acres of land in the Carmichael Colony in Sacramento County, for $650. One hundred dollars was paid on execution of the agreement, and the balance was to be paid in monthly installments of $12.50 or more on the first day of each month beginning December 1, 1944, including in...
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93 Cal. App. 2d 428 (1949) EDWARD MYERS et al., Respondents, v. MARGARET GARAVENTA, Appellant. Civ. No. 7586. California Court of Appeals. Third Dist. Aug. 22, 1949. Huberty & Huberty for Appellant. Mull & Pierce and Arthur DeBeau Carr for Respondents. ADAMS, P. J. On October 31, 1944, Margaret Garaventa was the owner and operator of a tavern at Mokelumne Hill in Calaveras County k...
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93 Cal. App. 2d 435 (1949) ELIZABETH A. KARSTENSEN et al., Appellants, v. WESTERN TRANSPORTATION COMPANY (a Corporation) et al., Respondents. Civ. No. 7588. California Court of Appeals. Third Dist. Aug. 22, 1949. McGuire & Lahanier and Guernsey Carson for Appellants. Brown, Rosson & Berry for Respondents. PEEK, J. This is an action to recover damages for the alleged wrongful death ...
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Manuel Gonzales died March 2, 1948, in San Joaquin County, leaving an estate therein but no known resident relatives.. On March 11th, Sue H. Clowdsley, public administrator, filed a petition for letters of administration *441of the estate of said decedent, and letters were issued to her on March 22d. Subsequently that official found among the effects of decedent what purported to be a copy of a wi...
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This is an appeal upon the judgment roll alone from that portion of the decree of distribution declaring void a bequest of $1,000 upon the grounds that the legatee was not a cemetery authority within the meaning of chapter 4, articles 2 and 4, division 8, part 3 of the Health and Safety Code; that the trust attempted to be created was not a charitable use and is void in that it purports to create ...
Views: 0
93 Cal. App. 2d 448 (1949) THE PEOPLE, Respondent, v. GERALDINE RHOADES, Appellant. Crim. No. 2089. California Court of Appeals. Third Dist. Aug. 22, 1949. Leslie C. Gillen, W. E. Halley and Archibald M. Mull, Jr., for Appellant. Fred N. Howser, Attorney General, and Doris H. Maier, Deputy Attorney General, for Respondent. PEEK, J. Defendant appeals from a judgment convicting her of four c...
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93 Cal. App. 2d 459 (1949) WILLIAM P. MEHERIN, Appellant, v. MARK M. MEHERIN, JR. et al., Respondents. Civ. No. 13964. California Court of Appeals. First Dist., Div. One. Aug. 24, 1949. Courtney L. Moore and Charles R. Collins for Appellant. Frank J. Mahoney for Respondents. WARD, J. Plaintiff in an action for dissolution of a partnership and for an accounting appeals from the judgment in ...
Views: 5
93 Cal. App. 2d 467 (1949) E. A. SASNER, Appellant, v. EDWARD B. ORNSTEN, Respondent. Civ. No. 17047. California Court of Appeals. Second Dist., Div. One. Aug. 25, 1949. Hindin, Weiss & Girard for Appellant. No appearance for Respondent. WHITE, P. J. This is an action by plaintiff against defendant on three checks executed by the latter, two being made payable to one Lou Stein and the ...
Views: 0
93 Cal. App. 2d 473 (1949) THE PEOPLE, Respondent, v. PAUL LEE HOLT et al., Appellants. Crim. No. 4363. California Court of Appeals. Second Dist., Div. One. Aug. 25, 1949. Paul Lee Holt and Manuel Govia, in pro. per., for Appellants. Fred N. Howser, Attorney General, and Dan Kaufmann, Deputy Attorney General, for Respondent. WHITE, P. J. On January 19, 1939, the District Attorney of Los An...
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93 Cal. App. 2d 479 (1949) CHARLES DANIELS et al., Appellants, v. JOHN McPHAIL et al., Respondents. Civ. No. 14057. California Court of Appeals. First Dist., Div. One. Aug. 29, 1949. Freitas, Keating & Freitas for Appellants. Martinelli, Gardiner & Riede for Respondents. WARD, J. The gist of this action appears in the following paragraph of the complaint: "That in the months of February an...
Views: 0
93 Cal. App. 2d 484 (1949) MARGARET WILLIAMSON, Appellant, v. PACIFIC GREYHOUND LINES (a Corporation), Respondent. Civ. No. 13890. California Court of Appeals. First Dist., Div. Two. Aug. 31, 1949. Clarence N. Riggins for Appellant. Dana, Bledsoe & Smith and A. Dal Thomson for Respondent. GOODELL, J. This is an appeal from a judgment on a verdict in defendant's favor in an action for d...
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93 Cal. App. 2d 489 (1949) THE PEOPLE, Respondent, v. RICHARD E. SKEEN, Appellant. Crim. No. 4333. California Court of Appeals. Second Dist., Div. One. Sept. 1, 1949. Morris Lavine for Appellant. Fred N. Houser, Attorney General, and James A. Doherty, Deputy Attorney General, for Respondent. DRAPEAU, J. The prosecuting witness, Mrs. Edna H. Allen, is an elderly widow. Her daughter married ...
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Defendant was charged by information with the crime of violation of section 288 of the Penal Code, in that on October 2, 1948, he committed a lewd and lascivious act upon the body of a certain 5-year-old child with the intent of arousing, appealing to and gratifying the lusts, passions and sexual desires of the said child and the defendant. Trial by jury was waived by the defendant, his counsel an...
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93 Cal. App. 2d 497 (1949) In re ELLSWORTH CHIAPETTO, on Habeas Corpus. Crim. No. 2616. California Court of Appeals. First Dist., Div. One. Sept. 2, 1949. George T. Davis and Kenyon C. Keller for Petitioner. Fred N. Howser, Attorney General, Clarence A. Linn, Deputy Attorney General, Edmund G. Brown, District Attorney, and Elton G. Lawless, Deputy District Attorney, for Respondent. WARD, J....
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93 Cal. App. 2d 500 (1949) JOSEPH W. ROWELL, Appellant, v. HENRY T. CROW et al., Respondents. Civ. No. 7601. California Court of Appeals. Third Dist. Sept. 2, 1949. Calkins, Hall, Linforth & Conard and Maurice E. Gibson for Appellant. Hawkins & Hawkins for Respondents. ADAMS, P. J. Appellant, an architect, brought this action to recover from respondents the sum of $20,207 alleged t...
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93 Cal. App. 2d 504 (1949) PAUL A. HUNT, Petitioner, v. SUPERIOR COURT OF STANISLAUS COUNTY et al., Respondents. Civ. No. 7686. California Court of Appeals. Third Dist. Sept. 2, 1949. Bush & Ackley for Petitioner. Nathan B. McVay, F. M. Brack and A. M. Frad for Respondents. *505 ADAMS, P. J. This is a petition for a writ of prohibition to arrest the Superior Court of Stanislaus County ...
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93 Cal. App. 2d 508 (1949) ROBERT H. KAUFMAN, Appellant, v. JOHN W. BROWN et al., Respondents. Civ. No. 3942. California Court of Appeals. Fourth Dist. Sept. 2, 1949. T. T. Crittenden for Appellant. J. F. DuPaul, City Attorney, Louis M. Karp, Deputy City Attorney, Thomas Whelan and Ann Wansley for Respondents. GRIFFIN, J. Plaintiff instituted this action on January 16, 1948, for wrongful a...
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This is an appeal from a judgment entered on sustaining demurrers without leave to amend in an action for attorneys’ fees. Plaintiff as lessor, and defendants Morrison and Phipps as lessees, entered into a written lease of real property in the city of San Diego. The lessees, with the written consent of lessor, assigned the lease to defendants George and Genell Styliano who conducted a business on ...
Views: 0
This action involves the validity of a personal property tax levied for the year 1947-48 upon cer*523tain ships moored in San Diego harbor. The plaintiff paid the tax under protest and brought this action to recover the amount paid. The cause was heard upon an agreed statement of facts. The plaintiff is a New Jersey corporation, and none of its officers reside in California. On December 4, 1946, i...
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Caesar Milani was an employee of the city water department of the city of Vallejo. Some time prior to June 28, 1946, the city decided to replace the existing- 4-inch water main into the Sperry Flour Mill with an 8-inch main. The new water main was to be placed under spur tracks of the Southern Pacific Company used for service to the flour mill premises owned by General Mills, Inc. There are six sp...
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93 Cal. App. 2d 532 (1949) RENO RAWLTON PAYNE, Appellant, v. REAL ESTATE COMMISSIONER OF THE STATE OF CALIFORNIA et al., Respondents. Civ. No. 7655. California Court of Appeals. Third Dist. Sept. 6, 1949. Busick & Busick and Charles O. Busick, Sr., for Appellant. Fred N. Howser, Attorney General, and Leonard M. Friedman, Deputy Attorney General, for Respondents. SCHOTTKY, J. pro tem. P...
Views: 8
93 Cal. App. 2d 538 (1949) Estate of WILFRID JOSEPH LA BELLE, Deceased. MINERVA C. BIRNIE, Respondent, v. ELIZABETH M. LA BELLE, Appellant. Civ. No. 14038. California Court of Appeals. First Dist., Div. Two. Sept. 7, 1949. Sherman & Peters for Appellant. Charles H. Baldwin and Norman A. Gregg for Respondent. GOODELL, J. A petition was filed by respondent, the daughter of the testator, ...
Views: 4
93 Cal. App. 2d 545 (1949) RAY C. ROBERTS, Plaintiff and Appellant, v. CITY OF PALOS VERDES ESTATES et al., Defendants and Appellants. Civ. No. 17070. California Court of Appeals. Second Dist., Div. One. Sept. 7, 1949. McLaughlin, McGinley & Hanson and James A. McLaughlin for Plaintiff and Appellant. Donald Armstrong for Defendants and Appellants. DORAN, J. The record reveals that the ...
Views: 0
93 Cal. App. 2d 549 (1949) THE PEOPLE, Respondent, v. KENNETH BENNETT et al., Defendants; ROBERT STEWART, Appellant. Crim. No. 2122. California Court of Appeals. Third Dist. Sept. 7, 1949. Grover C. Julian for Appellant. Fred N. Howser, Attorney General, and Doris H. Maier, Deputy Attorney General, for Respondent. PEEK, J. Defendant Robert Stewart appeals from a judgment convicting him of ...
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93 Cal. App. 2d 553 (1949) WILLIAM A. BARNETT et al., Respondents, v. JESSE LEE GARRISON et al., Appellants. Civ. No. 14026. California Court of Appeals. First Dist., Div. Two. Sept. 8, 1949. Campbell, Hayes & Custer, Frank L. Custer and Edward J. Niland for Appellants. James F. Boccardo and John E. Longinotti for Respondents. NOURSE, P. J. This is an appeal by defendant from an order ...
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93 Cal. App. 2d 559 (1949) UNITED STATES FIDELITY AND GUARANTY COMPANY (a Corporation), Respondent, v. HENRY J. SULLIVAN, Appellant. Civ. No. 16820. California Court of Appeals. Second Dist., Div. Three. Sept. 8, 1949. Claude B. Morton and Henry J. Sullivan for Appellant. Hugh B. Rotchford and Henry A. Schultz for Respondent. VALLEE, J. Appellant here, defendant below, appeals from a summa...
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93 Cal. App. 2d 562 (1949) JOSEPH E. MARTIN et al., Plaintiffs and Respondents, v. L. R. BUTTER et al., Appellants; BERNICE L. COLLISCHONN, Defendant and Respondent. Civ. No. 14029. California Court of Appeals. First Dist., Div. One. Sept. 13, 1949. J. Elwood Andresen for Appellants. Raymond J. Ferrario and Robert S. Kernes for Plaintiffs and Respondents. Breed, Robinson & Stewart for D...
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93 Cal. App. 2d 568 (1949) ANN HANSEN, Appellant, v. EDWARD HANSEN, Respondent. Civ. No. 14101. California Court of Appeals. First Dist., Div. One. Sept. 13, 1949. Phil F. Garvey, Julia M. Easley and James A. Himmel for Appellant. Eugene Elerding for Respondent. PETERS, P. J. There is no merit to this appeal. Appellant secured an interlocutory decree of divorce from her husband, the respo...
Views: 3
93 Cal. App. 2d 572 (1949) JACOB GOLDMAN et al., Respondents, v. JOHN LEE HOUSE et al., Appellants. Civ. No. 14140. California Court of Appeals. First Dist., Div. One. Sept. 13, 1949. Charles H. Blagburn and James Sykes for Appellants. Leon A. Blum for Respondents. WARD, J. This is an appeal from a judgment against defendants John Lee House and Marie House, husband and wife, in a personal ...
Views: 7
93 Cal. App. 2d 577 (1949) Estate of KATE A. ZARING, an Incompetent Person. MANSON H. ZARING, Respondent, v. JOHN E. GLOVER, Appellant. Civ. No. 16848. California Court of Appeals. Second Dist., Div. One. Sept. 13, 1949. Richard H. Cantillon for Appellant. Paul Taylor for Respondent. DRAPEAU, J. Kate A. Zaring and her husband during their marriage owned a rooming house in Los Angeles. Titl...
Views: 11
Plaintiff and appellant, surviving husband of Tymie P. Teeple, deceased, filed this action for reformation of a deed which conveyed certain real property to Tymie P. Teeple as her separate property, and by *582said action sought to reform the deed so that it would convey the property to himself and Tymie P. Teeple as joint tenants. Defendant and respondent Henry IT. Stanley is a son of said deceas...
Views: 0
This is a judgment roll appeal. Defendant and cross-complainant appeals from the “judgment in declaratory relief” in favor of plaintiffs and from the denial of any affirmative relief on defendant’s cross-complaint, the allegations of which are in the nature of a complaint for rescission. The complaint alleges a cause of action by plaintiffs for (1) specific performance and (2) declaratory relief. ...
Views: 0
This is an appeal in a divorce action from an order denying a motion to set aside an order appraising an automobile, part of the community property of the parties and for reappraisement. In November, 1947, appellant, *590wife, was granted an interlocutory decree of divorce in which, as her one-half of the community property she was, among other things, awarded “one-half the market value of the 194...
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93 Cal. App. 2d 594 (1949) RICHARD D. LARKIN et al., Respondents, v. BANK OF AMERICA NATIONAL TRUST AND SAVINGS ASSOCIATION (a Corporation), Appellant. Civ. No. 16987. California Court of Appeals. Second Dist., Div. One. Sept. 16, 1949. Chambers & Lyman and Robert Chambers for Appellant. Sprague & Sparks and Richard W. Sprague for Respondents. WHITE, P. J. This is an appeal by defe...
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This is an appeal by plaintiffs from an order granting defendant’s motion for a new trial after a jury verdict in favor of H. G. Rembold, the surviving husband of Thelma Rembold, deceased, and Verne Marie Rembold, daughter of decedent, in an action to recover damages for the death of said Thelma Rembold who was killed in an automobile collision alleged to have been due to the negligence of defenda...
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93 Cal. App. 2d 608 (1949) ALBERTA WINTHER et al., Plaintiffs, v. WILTON M. MORRISON, Defendant and Respondent; UNITED STATES OF AMERICA, Defendant and Appellant. Civ. No. 3948. California Court of Appeals. Fourth Dist. Sept. 17, 1949. Theron Lamar Caudle, Assistant Attorney General of the United States, Ellis N. Slack, A. F. Prescorr, Hilbert P. Zarky, Helen Goodner, Special Assistants to th...
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93 Cal. App. 2d 616 (1949) Estate of LEO SCHOMAKER, Deceased. GARNETT CHRISTINE SCHOMAKER, Appellant, v. MARGARET EDY, Respondent. Civ. No. 14042. California Court of Appeals. First Dist., Div. Two. Sept. 19, 1949. Walter H. Duane for Appellant. William A. O'Brien for Respondent. RUNNELLS, J. pro tem. This is an appeal from an order appointing respondent, Margaret Edy, the administratrix o...
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93 Cal. App. 2d 624 (1949) Estate of MARY ELIZABETH MERRICK, Deceased. JAMES A. MERRICK et al., Appellants, v. JOHN P. MERRICK et al., Respondents. Civ. No. 14056. California Court of Appeals. First Dist., Div. Two. Sept. 19, 1949. Clarence E. Rust for Appellants. Samuel L. Gold and Augustin Donovan for Respondents. RUNNELLS, J. pro tem. Four of the heirs of Mary Elizabeth Merrick, decease...
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93 Cal. App. 2d 629 (1949) WILLIE JAMES POWELL, Appellant, v. PACIFIC NAVAL AIR BASE CONTRACTORS (a Corporation) et al., Defendants; THE VENTURA COUNTY RAILWAY COMPANY, Respondent. Civ. No. 16853. California Court of Appeals. Second Dist., Div. One. Sept. 19, 1949. Sampson & Dryden and DeWitt Morgan Manning for Appellant. O'Melveny & Myers, Lauren M. Wright and Rodney K. Potter for R...
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Defendant objected to the introduction of any evidence upon the ground that the amended complaint did not state facts sufficient to constitute a cause of action. The objection was sustained, and judgment was entered in favor of defendant. Plaintiff appeals. The amended complaint alleged that on January 15, 1945, plaintiff and defendant entered into a written contract which was as follows: “ Chartr...
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Defendant appeals from a judgment in favor of plaintiff in the sum of $2,416. The complaint set forth three separate causes of action of this amount on quantum meruit, account stated, and open account. Defendant’s “answer and counterclaim” alleged that on February 10, 1947, plaintiff orally agreed to remove a two store wooden building from one location to another on defendant’s premises; and that ...
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93 Cal. App. 2d 646 (1949) KATHLEEN RICE, Respondent, v. JAMES C. RICE, Appellant. Civ. No. 16852. California Court of Appeals. Second Dist., Div. Three. Sept. 19, 1949. William R. Law for Appellant. F. Walter French and Frank J. Indovina for Respondent. WOOD, J. Appeal by defendant from an order granting a motion of plaintiff (1) to vacate an interlocutory decree of divorce, and (2) to fi...
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93 Cal. App. 2d 653 (1949) DANIEL W. GRIMES, Appellant, v. L. B. ALLEN et al., Respondents. Civ. No. 7636. California Court of Appeals. Third Dist. Sept. 19, 1949. F. H. Bowers and R. A. Boon for Appellant. Al. B. Broyer and Robinson & Robinson for Respondents. SCHOTTKY, J. pro tem. [fn. *] Appellant, Daniel W. Grimes, a resident of Roseville, in Placer County, commenced an action *654 ag...
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This is an action to recover damages for breach of an oral agreement to level land. On February 21, 1946, plaintiff bought from one Murdock 160 acres of land in Kern County. Plaintiff, who spoke but little English, orally authorized Murdock to arrange for grading and leveling the land. He set a limit of $50 per acre as the cost price. Plaintiff entered into a written agreement with one Claborn to ...
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93 Cal. App. 2d 664 (1949) THE PEOPLE, Respondent, v. MIGUEL F. LOPEZ, Appellant. Crim. No. 677. California Court of Appeals. Fourth Dist. Sept. 19, 1949. Rosen & Taylor for Appellant. Fred N. Howser, Attorney General, and Howard S. Goldin, Deputy Attorney General, for Respondent. GRIFFIN, Acting P. J. It was charged in count one of the information that on December 22, 1948, defendant ...
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Jennie Fraser Hunter, individually and as administratrix of the estate of Rachel J. Fraser, appeals from a judgment directing the payment of certain income of an inter vivos trust created by Rachel J. Fraser. Article VI of the trust instrument, which was executed on July 8, 1932, provided that the entire net income from the trust estate was to be paid to the trustor during her lifetime; upon her d...
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93 Cal. App. 2d 678 (1949) THEODORE T. NEAL, Appellant, v. BANK OF AMERICA NATIONAL TRUST AND SAVINGS ASSOCIATION (a Corporation), Respondent. Civ. No. 16844. California Court of Appeals. Second Dist., Div. Three. Sept. 20, 1949. Geo. P. Cook for Appellant. Hugo A. Steinmeyer, G. L. Berrey and Geo. L. Beckwith for Respondent. SHINN, P. J. The original complaint in this action, which named ...
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93 Cal. App. 2d 684 (1949) K. K. LOWE, Respondent, v. GEORGE LOYD et al., Appellants. Civ. No. 3788. California Court of Appeals. Fourth Dist. Sept. 20, 1949. David E. Peckinpah and L. N. Barber for Appellants. L. Kenneth Say for Respondent. MUSSELL, J. This is an action by a real estate broker to recover commission. Plaintiff and defendants executed a written contract on August 24, 1946,...
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93 Cal. App. 2d 687 (1949) ANDREW NORMAN, Respondent, v. DOROTHY EVELYN BURKS, Appellant. Civ. No. 16886. California Court of Appeals. Second Dist., Div. One. Sept. 21, 1949. Hugh B. Rotchford, Richard T. Drukker and Chase, Rotchford, Downen & Chase for Appellant. Paul Overton, Gail B. Selig, Horace S. Wilson and Neil G. Locke for Respondent. *689 DRAPEAU, J. Plaintiff is a married man...
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93 Cal. App. 2d 692 (1949) VERDA E. BARDER, Respondent, v. ELLERY G. McCLUNG et al., Defendants; RAYMOND E. PIERCE et al., Appellants. Civ. No. 17135. California Court of Appeals. Second Dist., Div. One. Sept. 21, 1949. Henry C. Rohr for Appellants. Richard M. Thompson for Respondent. DRAPEAU, J. The instant action for damages is based upon the alleged fraud of defendants in a sale to plai...
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93 Cal. App. 2d 698 (1949) KENNETH C. HARDY et al., Appellants, v. MUSICRAFT RECORDS, INC., Respondent. Civ. No. 17104. California Court of Appeals. Second Dist., Div Two Sept. 21, 1949. Demetriou & Viney and John F. Reed for Appellants. A. E. Coppleman and Allan J. Greenberg for Respondent. WILSON, J. Appeal by plaintiffs from a judgment in favor of defendant in an action for money ha...
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This appeal is without merit. Appellant and his two codefendants were charged in two counts of the information with armed robbery and in count three with kidnaping for the purpose of robbery. The information also alleged that defendants were armed at the time of their arrest and that appellant had suffered a prior conviction of felony and had served a term of imprisonment therefor in the state pri...
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This is an appeal from a judgment and order dismissing an action under the provisions of section 581a of the Code of Civil Procedure. *708Plaintiff brought this action on October 1, 1941, to quiet his title to real property in San Diego. Summons in the action was served on the defendant city of San Diego on September 19,1944, but it was not returned to the court until October 17, 1944. On October ...
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Defendant appeals from a judgment based upon a written contract, by which plaintiff agreed to rent to defendant a certain number of sheets, towels and similar articles and thereafter launder the same and keep defendant supplied with a specified number of each of the articles. Defendant contracted to rent from plaintiff exclusively all articles so specified, to pay for such rental and laundry servi...
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Plaintiff instituted a separate maintenance action on the ground of extreme cruelty against defendant in San Diego County. She sought $2,000 per month as support money, and claimed community interest in considerable described property. On application of the defendant husband the action was transferred to Imperial County because it was claimed he was a resident of that county at the time. Defendant...
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93 Cal. App. 2d 729 (1949) FRANK C. WEAVER, Petitioner, v. SUPERIOR COURT OF THE CITY AND COUNTY OF SAN FRANCISCO, Respondent. Civ. No. 14204. California Court of Appeals. First Dist., Div. One. Sept. 23, 1949. Carroll, Davis & Freidenrich for Petitioner. Henry C. Clausen for Respondent. PETERS, P. J. By this proceeding in mandamus the petitioner seeks to compel the trial court to disc...
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Appellant was convicted of a violation of section 4502 of the Penal Code. He appeals from the judgment of conviction and from the order denying his motion for a new trial. Section 4502 provides that “Every prisoner committed to a State prison who, while at such State prison . . . possesses or carries upon his person . . . any dirk or dagger or sharp instrument, ... is guilty of a felony and shall ...
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93 Cal. App. 2d 744 (1949) THE PEOPLE, Respondent, v. REBEL B. CORNETT, Appellant. Crim. No. 808. California Court of Appeals. Fourth Dist. Sept. 23, 1949. J. M. Lopes for Appellant. Fred N. Howser, Attorney General, and Henry A. Dietz, Deputy Attorney General, for Respondent. MUSSELL, J. Defendant was charged with the murder of Fred Weaver Cole, the stepfather of his divorced wife. A jury...
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93 Cal. App. 2d 750 (1949) Estate of VIOLA C. CARR, Deceased. ELIZABETH CARR SULLIVAN, Respondent, v. H. G. JORGENSEN et al., Appellants. Civ. No. 14053. California Court of Appeals. First Dist., Div. Two. Sept. 26, 1949. Hudson, Martin, Ferrante & Street for Appellants. Mahaney, McDonald & Isenberg for Respondent. GOODELL, J. Viola C. Carr died in Monterey on August 4, 1943, aged ...
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93 Cal. App. 2d 757 (1949) JULIUS C. DUFFEY et al., Respondents, v. GENERAL PETROLEUM CORPORATION (a Corporation), Appellant. Civ. No. 7669. California Court of Appeals. Third Dist. Sept. 26, 1949. Goldstein, Barceloux & Goldstein for Appellant. L. C. Smith for Respondents. ADAMS, P. J. Plaintiffs, husband and wife, brought this action against defendant corporation for injuries to thei...
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93 Cal. App. 2d 761 (1949) CREDIT BUREAU OF SAN DIEGO, INC. (a Corporation), Appellant, v. MYRON SAMUEL WOLF et al., Defendants; ELBERT L. CROW, Respondent. Civ. No. 3955. California Court of Appeals. Fourth Dist. Sept. 26, 1949. Ruel Liggett and Roy M. Cleator for Appellant. A. T. Procopio for Respondent. MUSSELL, J. Plaintiff appeals from a judgment in favor of a third party claimant in ...
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93 Cal. App. 2d 765 (1949) PETER MENDIONDO, Appellant, v. CHARLES E. GREITMAN, as Administrator, etc., Respondent. Civ. No. 7616. California Court of Appeals. Third Dist. Sept. 28, 1949. Manwell & Manwell for Appellant. L. C. Anderson for Respondent. PEEK, J. Plaintiff commenced this action against the administrator of the estate of George Dewey Greitman, deceased, to specifically enfo...
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Four actions for declaratory relief were consolidated for trial and from the four declaratory judgments which followed appeals are prosecuted by the Attorney General of the United States, plaintiff in intervention in each action (hereinafter called intervener), and the Superintendent of Banks of the State of California, defendant. The four actions present common questions of law on facts in all ma...
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93 Cal. App. 2d 777 (1949) THE PEOPLE, Respondent, v. GARRETT A. WILLIAMS, Appellant. Crim No. 2609. California Court of Appeals. First Dist., Div. Two. Sept. 29, 1949. Garrett A. Williams, in pro. per., for Appellant. Fred N. Howser, Attorney General, and David K. Lener, Deputy Attorney General, for Respondent. GOODELL, J. This appeal is from an order of May 31, 1949, denying appellant's ...
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93 Cal. App. 2d 780 (1949) THE PEOPLE, Respondent, v. JAMES CARL THOMPSON, Appellant. Crim. No. 4349. California Court of Appeals. Second Dist., Div. Three. Sept. 29, 1949. David Silverton for Appellant. Fred N. Howser, Attorney General, and William E. James, Deputy Attorney General, for Respondent. SHINN, P. J. Defendant was convicted in a trial to the court of two offenses of assault wit...
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By this action plaintiff, as lessee of certain lands situated in Merced County, sought a declaration of his rights and duties under a certain lease agreement entered into with the defendant as lessor. The complaint alleged that plaintiff had been evicted by the act of defendant in farming a portion of the leased premises and that plaintiff’s duty to pay rent was thereby terminated. The defendant f...
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93 Cal. App. 2d 788 (1949) Estate of MARY ELIZABETH SELB, Deceased. EDWARD C. SELB, Appellant, v. BERTHA ELIZABETH MORRIS, as Administratrix with the Will Annexed, etc., Respondent. Civ. No. 7648. California Court of Appeals. Third Dist. Sept. 29, 1949. C. Ray Robinson, W. Eugene Craven and Margaret A. Flynn for Appellant. Vernon F. Gant and Carlos J. Badger for Respondent. SCHOTTKY, J. pro...
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The three above named actions were commenced by plaintiffs and appellants against defendants and respondents to recover taxes paid under the Retail Sales Tax Act of the State of California (Stats. 1933, p. 2599, as amended) for periods prior to July 1, 1943. The respondents having asserted that certain receipts of appellants were subject to the retail sales tax, the appellants paid the taxes, i...
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John W. Hartman, aged 14, and two other minors, were originally charged by grand jury indictment with the crime of involuntary manslaughter in that they did, on June 11, 1948, kill one Jose Inez Estrada, aged 9 years. The case was transferred to the juvenile court for hearing and after taking evidence the juvenile court de *803 clared all of the minors wards of the court. Hartman w...
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This is an action to impress a trust upon the proceeds of a United States war risk insurance policy and was filed by plaintiffs, the son and daughter respectively of the deceased Barton H. Kauffman, against their stepmother Angie Florence Kauffman who was the beneficiary named in the policy. The appeal is from a judgment in favor of defendant and is presented upon the judgment roll. The facts a...
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93 Cal. App. 2d 815 (1949) DANIEL ST. GEORGE et al., Petitioners, v. SUPERIOR COURT OF SAN MATEO COUNTY et al., Respondents. Civ. No. 14323. California Court of Appeals. First Dist., Div. One. Sept. 30, 1949. Kirkbride, Wilson, Harzfeld & Wallace for Petitioners. Frank V. Kington for Respondents. PETERS, P. J. The petition for a writ of mandate must be denied. The petition alleges tha...
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Defendant was convicted by a jury of eight felonies—four counts of kidnaping (Pen. Code, § 207), and four counts of rape by force and violence (Pen. Code, § 261). After judgment he moved for a new trial. From the judgment and the order denying the motion for new trial, he has appealed. Contentions Defendant does not attack the sufficiency of the evidence to support the convictions, other than to c...
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Petition for writ of habeas corpus on the ground that the term of sentence under which petitioner is imprisoned was beyond the jurisdiction of the court. Petitioner was convicted of a violation of section 702 of the Welfare and Institutions Code (contributing to the *827delinquency of a minor) and sentenced to imprisonment in the county jail for the term of two years. Her confinement began on July...
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93 Cal. App. 2d 827 (1949) IRENEO ROTEA, Respondent, v. TERESA ROTEA, Appellant. Civ. No. 16828. California Court of Appeals. Second Dist., Div. Three. Sept. 30, 1949. Claude A. Watson, Edward P. Hart and Henry F. Walker for Appellant. Willedd Andrews for Respondent. WOOD, J. Action to quiet title to an undivided one-half interest in a house and lot. Defendant appeals from the judgment in ...
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93 Cal. App. 2d 834 (1949) THE PEOPLE, Respondent, v. BENJAMIN MEARSE, Appellant. Crim. No. 4371. California Court of Appeals. Second Dist., Div. Three. Sept. 30, 1949. Philip M. Schwabacher for Appellant. Fred N. Howser, Attorney General, and Elizabeth Miller, Deputy Attorney General, for Respondent. WOOD, J. Defendant was charged in count one of an information with assault with a deadly ...
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Petition for writ of mandate directing respondent State Personnel Board to authorize payment of petitioner’s salary for the period from December 4, 1948, to March 25, 1949. The main question is: Under the State Civil Service Act, where charges are filed against a state employee by the appointing power and he is suspended by such power from service pending the hearing of such charges, and one of th...
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Defendant Rupert having deceased three months after the filing of this action and the due levy of a writ of attachment upon his property, his administratrix moved to dissolve the writ by reason of such death. She now appeals from the order denying the dissolution. It has been the established law for over 80 years that the death of a defendant destroys the lien of an attachment *845 ...
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On January 8, 1940, the parties to this action executed articles of copartnership for the purpose of operating an automobile parking station and thereafter transacted the partnership’s business. On March 8, 1943, the articles were modified by a writing which provided that (1) at the close of the war respondent might check the business *847done for five months; (2) during such five months responden...
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93 Cal.App.2d 849 (1949) FEODORA LEWIS, Appellant, v. SOUTH SAN FRANCISCO YELLOW CAB COMPANY (a Partnership) et al., Respondents. Civ. No. 14107. California Court of Appeals. First Dist., Div. One. Oct 4, 1949. E. C. Mahoney for Appellant. Hoge, Pelton & Gunther, Harry N. Grover, Leo V. Killion and Reginald M. Watt for Respondents. BRAY, J. From a judgment entered after order granting defe...
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The questions for decision are: whether respondent contracted to install a steam generator and whether the evidence supports the findings. • Appellant manufactures cheese. Respondent fabricates steam generators. On August 2, 1946, respondent through its president Allen contracted to construct and deliver a steam generator to appellant’s place of business. At the same time respondent advised app...
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The defendant, II. V. Stone, appearing in proper person, moved this court to recall and quash a remittitur after the judgment of conviction of conspiracy to commit abortions had been affirmed on appeal. It is contended the remittitur should be recalled because the judgment is invalid on account of the admission in evidence of medical instruments and Dorex soap solution “without complete knowledge ...
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93 Cal. App. 2d 864 (1949) CLARENCE NOBLIT et al., Respondents, v. BLICKSHIRE HOTELS AND MOTELS, INC. (a Corporation) et al., Appellants. Civ. No. 16954. California Court of Appeals. Second Dist., Div. Two. Oct. 5, 1949. Siemon, Maas & Siemon for Appellants. Michael M. Motta for Respondents. McCOMB, J. Defendants appeal from a judgment in favor of plaintiffs after trial before the court wi...
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Appeal from judgment in favor of defendants Waters and Jones following the sustaining of a demurrer to the second amended complaint without leave to amend. Respondents Waters, through their attorney respondent Jones, filed an action for unlawful detainer against appellant in the Municipal Court of Los Angeles. Judgment was rendered in favor of the plaintiffs from which an appeal was taken to th...
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This is a suit for injunction to restrain the defendants from maintaining or removing buildings alleged to have been constructed on the rights of way and easements of plaintiff across the lands of defendants in Solano County. The amended answer of the defendants alleges equitable defenses to the action. Plaintiff’s demurrer to the answer was sustained without leave to amend the pleading. Judgment ...
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The defendant is a practicing attorney in good standing at this bar. During the year 1948, in compliance with ordinance No. 3432 (New Series) of the city of San Diego, adopted January 14, 1947, the defendant paid the fee for procuring a license to engage in the general practice of law in the city of San Diego. During the year 1949, the defendant, while still engaged in the practice of law in the c...
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From an order modifying a previous order for the payment of alimony decreed originally in an interlocutory decree of divorce, plaintiff appeals. Facts: On March 20, 1940, an interlocutory decree of divorce was entered in favor of plaintiff which contained the following provisions: “It Is Hereby Further Ordered, Adjudged and Decreed that Defendant pay unto Plaintiff as alimony for her suppor...
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94 Cal. App. 2d 4 (1949) J. G. COLBURN, Appellant, v. DAVID SESSIN et al., Respondents. Civ. No. 17078. California Court of Appeals. Second Dist. Div Two. Oct. 5 1949. Lane & McGinnis for Appellant. Snyder & Naiditch, Samuel Greenfield and Daniel A. Weber for Respondents. WILSON, J. Appeal from judgment in favor of defendants after the sustaining of a demurrer to plaintiff's compla...
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Petition by Milton Kauffman, Inc., and Milton Kauffman for a writ of prohibition to restrain respondent from adjudging them in contempt for refusing *11to comply with an order permitting inspection and copying of certain writings in their possession. Charles E. Thorson, the real party in interest, has demurred to the petition on the ground that it 11 does not state sufficient facts to constitute a...
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94 Cal. App. 2d 20 (1949) THE PEOPLE, Respondent, v. ISAAC MANUEL, Appellant. Crim. No. 2128 Third Dist. California Court of Appeals. Oct 5, 1949. Henry W. Mahan for Appellant. Fred N. Howser, Attorney General, and Doris H. Maier, Deputy Attorney General, for Respondent. THOMPSON, J. The defendant was tried by a jury and convicted of lascivious acts upon a 5-year-old child, contrary to the...
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actions involving conflicting claims of rival colored Masonic organizations were consolidated for trial. The first was an action for conversion in which a cross-complaint was filed asking damages for fraud. The second action was one brought by the Hiram of Tyre Grand Lodge against the Sons of Light Grand Lodge to enjoin the latter from conducting a grand lodge of colored Freemasonry in California....
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The question for determination on this appeal involves the right of organized labor to strike, picket, and engage in other concerted labor activities against a governmental, rather than a private, employer. The action was brought by the city of Los Angeles and its department of water and power, which was engaged in construction and modification work upon some eight major water and electric...
Views: 30
Appellant, Robert White, and one Hardeman were charged with violation of section 11500 of the Health and Safety Code in that they unlawfully had in their jpossession a preparation of heroin. Hardeman pleaded guilty. Appellant was found guilty in a jury trial. He appeals from the judgment and sentence. Appellant contends that the evidence was insufficient to support the judgment. Officers found ...
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94 Cal. App. 2d 56 (1949) JOAN WILLIAMS FIELDS, Appellant, v. HARRY DAVID FIELDS, Respondent. Civ. No. 16816. California Court of Appeals. Second Dist., Div. Three. Oct. 7, 1949. Flint & MacKay for Appellant. Leo Shapiro for Respondent. SHINN, P. J. On May 15, 1947, Mrs. Fields obtained an interlocutory decree of divorce on the grounds of extreme cruelty and adultery. The court made fi...
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94 Cal. App. 2d 61 (1949) MICHAEL COLETTI, Respondent, v. STATE BOARD OF EQUALIZATION et al., Appellants. Civ. No. 16874. California Court of Appeals. Second Dist., Div. Three. Oct. 7, 1949. Fred N. Howser, Attorney General, and Bayard Rhone, Deputy Attorney General, for Appellants. Prentiss Moore and Charles M. Hughes for Respondent. SHINN, P. J. The State Board of Equalization and the me...
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A writ was heretofore issued on petition of Los Angeles Jewish Community Council and National Automobile and Casualty Insurance Company for the review of an award of $6,000 by the Industrial Accident Commission as a death benefit to Margareta Frederika Cohn, widow of Rabbi Emil Bernard Cohn. In the petition the statement of question involved reads as follows: “Whether the Industrial Accident Commi...
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Appellants Wright and Casey were convicted by a jury of grand theft. Motions for new trials were denied. They appeal from the judgments and the orders denying their motions for new trials. Each appellant contends that the evidence is insufficient to justify the verdict as to him, and that the court erred in giving instructions. The evidence stated most favorably to respondent follows. On Apri...
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A writ of habeas corpus was heretofore issued upon a petition asserting invalidity of petitioner’s confinement under a commitment following two adjudications of contempt for failure to comply with certain orders for the payment of money made in a pending action for divorce in which he is the defendant. When the matter came on for hearing it was submitted upon the petition and the return, the petit...
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Defendants were convicted on two counts of an amended indictment charging violation of section 182 of the Penal Code. The first count reads: “The said Grover Huían Nasworthy and Alvin Charles Knuthson did, on or about the 17th day of November, 1948, at Butte County, State of California, and before the filing of this Indictment, wrongfully, wilfully and unlawfully conspire to commit the crime of...
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The question for decision is whether the judgment of a state court is void by reason of its award of treble damages as provided by the Emergency Price Control *95Act of 1942 [56 Stats. 23; 50 U.S.C.A.App. § 901 et seq.], herein referred to as the act, where the party affected by the order of the O.P.A. has not complied with the procedure outlined in the act for vacating such order. Appellant, Busi...
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From a conviction of kidnapping defendants demand a reversal of the judgment on the grounds of (1) insufficiency of the evidence, (2) its inconsistency with the jury’s implied findings and (3) the improbability of its truth. The Evidence Is Sufficient The evidence adopted by the jury established that about 12:15 a. m., of a morning in May, 1948, appellants were engaged in operating games of c...
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Plaintiff’s 3-year-old child was so terribly bitten by a dog or dogs that he died. Plaintiff’s amended complaint alleges that the child was bitten by dogs belonging to defendants Arguello, and by a dog belonging to defendants Kramer. Answers were filed traversing these allegations. Plaintiff’s deposition was taken. In that deposition he testified that he did not contend that the Kramer dog bit the...
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Appeal in propria persona from judgments entered upon jury verdicts finding defendant guilty of three counts of robbery in the first degree and from an order denying defendant’s motions for new trial. Questions Involved Defendant contends (1) that the evidence is insufficient to justify the verdict; (2) that the information is void; (3) that the jury verdicts are void; (4) that the judgments ...
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The defendant has appealed from a judgment for refund of additional franchise taxes levied against plaintiff pursuant to section 4 (3) of the Bank and Corporation Franchise Tax Act (Stats. 1929, p. 19, and *119 amends.; 3 Deering’s Gen. Laws, Act 8488, p. 3010), and which were paid under protest. This appeal was heard upon a written stipulation of facts. The additional franchi...
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Appeal by defendant Vallerga from certain orders made after verdict and judgment in a personal injury action. The facts are agreed upon and presented in the form of a settled statement. Record Plaintiff was a passenger riding in a cab operated by defendant Don Clark, doing business as the Independent Cab Company, and driven by defendant Albert Stein. The cab collided *129 with an automobile...
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This is an appeal from a judgment in defendants’ favor after their demurrer- to the amended complaint had been sustained without leave to amend. The action was brought by the lessor against his two lessees of premises on Mason street, in San Francisco, to be occupied as a night club. The lease was dated April 30, 1947, to run for a term of 10 years commencing on August 1, 1947. The lease (whi...
Views: 2
Plaintiff sued on two written agreements, both executed ..at the same time. Neither agreement was pleaded in haec verba or incorporated by reference in the *141complaint. Judgment was given plaintiff on the first agreement, but the trial court refused to admit evidence of the second agreement and gave judgment thereon to defendant. This ruling is the pertinent issue on plaintiff’s appeal from that...
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Plaintiffs appeal from a judgment awarding them $227 actual, damages and $100 punitive damages. Appellants, mother and daughter, were evicted from a *144 flat in which they were living by a writ of possession following a judgment for the owner in the municipal court. The case is similar to Tranchina v. Arcinas, 78 Cal.App.2d 522 [178 P.2d 65] in that the owner represented to the O.P.A. that...
Views: 8
Defendant was charged with the murder of one Gilbert Moreno. He was convicted of murder in the second degree and appeals from the judgment and from an order denying his motion for a new trial. It is undisputed that on the night of August 14, 1948, defendant inflicted one stab with his knife into the abdomen •of Moreno, by which the aorta was pierced and death caused within a short time. The def...
Views: 9
Plaintiffs brought this action against defendant Glo-Fire Company, a corporation, alleging in the first count that on or about April 8,1946, plaintiffs sold to it certain lumber (classified as “shim stock” used for crating radiant gas logs manufactured by defendant company), which was delivered to defendant between April 8 and May 25, and that defendant agreed to pay plaintiffs $2,001.92 theref...
Views: 0
Petitioner represents by his verified petition, and the undisputed facts show, that the respondent city of Fresno, by and through its commissioners and in compliance with section 56 of its charter, and after proceedings duly taken, advertised for bids for the construction of Section One, *162Jensen Avenue Collector Sewer, and pursuant to the advertisement for bids, submitted to the bidders plans a...
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94 Cal. App. 2d 166 (1949) THE PEOPLE, Respondent, v. CLYDE RODGERS, Appellant. Crim. No. 727. California Court of Appeals. Fourth Dist. Oct. 14, 1949. Harry W. Horton and Reginald L. Knox, Jr., for Appellant. Fred N. Howser, Attorney General, and William E. James, Deputy Attorney General, for Respondent. GRIFFIN, J. Defendant was charged with the offense of manslaughter, i e., violating s...
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The defendant was charged with a violation of section 270a of the Penal Code, it being alleged that from February 18, 1948, to February 1, 1949, he wilfully abandoned his wife and left her in a destitute condition, and refused and neglected to provide her with necessary food, clothing, shelter and medical attention although he had sufficient ability to provide and earn the means therefor. A prior...
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This action was instituted by the Pacific Odorite Corporation, respondent, against Maury Gersh, appellant, to recover damages for the breach of a contract to purchase the former’s business and personal property in San Francisco. Gersh, the purchaser, appeals from the judgment entered in favor of respondent, the seller. On August 23, 1946, appellant visited respondent’s attorney, who was also a ...
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Plaintiff has appealed from that portion of an interlocutory judgment awarding severance damages to defendants in an action for the condemnation of a strip of land to be used for the opening and extension of a freeway (a limited access highway) from Hollywood into San Fernando Valley. The accompanying sketch (see next page) illustrates the relative locations of the several parcels of land ...
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94 Cal. App. 2d 197 (1949) THE PEOPLE, Appellant, v. JOSEPH ANTHONY BELTRAN et al., Defendants; JESUS DEANDA MORENO, Respondent. Crim. No. 4330. California Court of Appeals. Second Dist., Div. Two. Oct. 17, 1949. Fred N. Howser, Attorney General, and Frank Richards, Deputy Attorney General, for Appellant. Ellery E. Cuff, Public Defender, and Richard F. Bird, Deputy Public Defender, for Respo...
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By their complaint plaintiffs sought to quiet title to certain farm land standing in the names of plaintiffs and defendant as cotenants. Additionally they sought an accounting and a decree ordering defendant to convey to them his interest in said property. The defendant, by his cross-complaint, acknowledged his interest in the property but denied generally the remaining allegations in plaintiffs’...
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94 Cal.App.2d 222 (1949) JOSEPH T. MARTIN, Appellant, v. DAVID AUERBACH, Respondent. Civ. No. 17136. California Court of Appeals. Second Dist., Div. Two. Oct. 19, 1949. Anderson, McPharlin & Conners and Montgomery G. Rice for Appellant. Joseph T. Enright, Samuel J. Crawford and Robert Ogle for Respondent. WILSON, J. Plaintiff appeals from a judgment denying relief in an action to rescind a...
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William S. Ryan, deceased, at the time of his death was 16 years of age and the son of Margaret Ryan, the defendant herein. He held an automobile driver’s license which had been issued upon an application signed and verified by his mother under the provisions of section 350(a) of the Vehicle Code. On October 7, 1948, he was driving a roadster automobile on a desert road in the vicinity of Palmdale...
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Appeal from an order of partial distribution. The will of W. C. Fields bequeathed $5,000 each to his sister and brother. They petitioned for distribution of the *235legacies. The widow of Fields appeals from the order distributing the legacies to them. The verified petition for partial distribution alleged these facts: All claims against the estate have been paid except a contingent claim of the w...
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This is an appeal by Louise Klingenberg, widow of William Henry Klingenberg, deceased, from a decree of settlement of the first and final account and of distribution. William Henry Klingenberg died August 17, 1946, and left surviving him his wife, Louise Klingenberg, a daughter, Ruth Johnson, and a son, William Klingenberg. His will was dated October 22, 1945, and admitted to probate on Septemb...
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94 Cal.App.2d 246 (1949) WILBUR G. FLECKNER et al., Appellants, v. EDWARD G. DIONNE, a Minor, etc., et al., Defendants; P. D PANGRACS, Respondent. Civ. No. 14142. California Court of Appeals. First Dist., Div. Two. Oct. 20, 1949. Joseph A. Bonacina for Appellants. Robert L. Lamb and Robert A. Haughwout for Respondent. GOODELL, Acting P. J. The demurrer of respondent Pangracs, sued as Richa...
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The complaint herein alleges that plaintiff and defendant were both operating diaper laundries in the county of Los Angeles; that plaintiff prepared special lists of names and addresses of his customers which defendant surreptitiously acquired and thereafter solicited such customers without the knowledge or consent of plaintiff and also without advising the customers how their names had been se...
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Plaintiff had five cypress trees growing on the rear of her lot in Alhambra. Befendants entered upon plaintiff’s property and cut down the trees. Two of the defendants were owners of the abutting property at the rear, *261along the line of which the trees were growing. The remaining defendant was a tree surgeon employed by the other two defendants to fell the trees. Plaintiff sued, and the case wa...
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From a judgment in favor of plaintiff after trial before the court without a jury in an action to recover damages for personal injuries, defendant Southern Cities Transit Company appeals. Facts : Plaintiff, a woman 71 years of age, was a passenger on defendant’s bus. She arose from her seat when the bus approached the corner of Long Beach and Compton Boulevards for the purpose of alighting. The bu...
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Appeal by plaintiff from a judgment for defendants in an action for damages for the alleged breach of an oral contract to deliver shares of stock to plaintiff. Douglas Oil & Refining Company is a corporation. Pursuant to a preorganization agreement between appellant Douglas, respondents and one Stratton, 110,000 of its common shares were issued to respondents Bergere and Andrews, 55,000 sh...
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Appeal by defendants from a judgment for plaintiff entered on a verdict of a jury in an action to recover compensation for services rendered in securing a purchaser of all of the capital stock of a corporation. The complaint alleged these facts. About May 1, 1943, defendants entered into an oral agreement with plaintiff whereby they agreed to sell and transfer all of the capital stock of Neu-Ba...
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An alternate writ of mandate was issued directing the Superior Court of Los Angeles County to order Pauline Lachs Slosberg to appear and give her deposition in a certain pending action or, if said order be not made, to show cause for the refusal to make it. The matter came on for hearing in this court upon the petition and the return and answer of respondent court. It *284 appears that Mrs. S...
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From a judgment in favor of defendants after trial before the court without a jury in an action for declaratory relief, plaintiffs appeal. Facts: Plaintiffs alleged that they entered into a real estate option February 20, 1946, with Mary C. Durant, which read as follows: “Real Estate Option. Los Angeles, California, February 20, 1946, Received of Ann Fleming and James II. Mulligan the...
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Appellant, administratrix of the estate of her son, Walter A. Hamilton, deceased, appeals from a judgment decreeing that a creditor’s claim filed by respondent, the surviving widow, in the estate of her deceased husband, predicated on an award made in an interlocutory decree of divorce, is valid, and ordering appellant to pay respondent the sum of $3,750, being accrued monthly payments of $150 for...
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The defendant was charged with two crimes of incest alleged to have been committed on October 26, 1948, and on October 29, 1948. A jury found him guilty on both counts and he was sentenced to imprisonment, the sentences to run concurrently. He has appealed from the judgment and from an order denying his motion for a new trial. The defendant lived with his two daughters in a small house in La Jo...
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Defendant appeals from an interlocutory decree of divorce granted to his wife on the ground of extreme cruelty. The parties were married in 1936 and separated in 1947. The only grounds urged on appeal are a claimed con- *311 donation by resumption of marital relations after a previous separation of the parties in 1944 and the fact that the only acts of cruelty which were corroborat...
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In the within action for damages for personal injuries the jury returned a verdict for plaintiff and from the judgment that followed defendants appeal. Plaintiff, a truck driver, was backing a truck which collided with an automobile driven by defendant Simon Jubas. An argument resulted and then a fight during which plaintiff alleges, “defendants, and each of them, wrongfully and violently, assault...
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In an action for declaratory relief and for damages, a general demurrer to plaintiff’s amended complaint was sustained without leave to amend, and from the ensuing judgment of dismissal plaintiff prosecutes this appeal. The attempted appeal from the “ruling on demurrer” must be dismissed. It appears from the amended complaint that plaintiff, Photo-chart, a corporation, is the assignee of T...
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By writ of mandate filed in the superior court the B. C. Turf and Country Club, Ltd., a corporation organized and existing under the laws of British Columbia, sought to compel the California Corporation Commissioner to rescind an order issued by him on April 24, 1946, directing the Turf Club to cease and refrain from the further sale of its stock in California, and to rescind a letter sent by the...
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This is an appeal by Leonard W. Brown and Upper Lake Union High School District from a judgment in favor of plaintiff Frymire in three separate actions filed by him, and on the issues raised by the school district in a complaint in intervention which it filed, all of which were by stipulation consolidated for trial and tried together, but one set of findings and one judgment having been filed. ...
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Plaintiff, appellant here, brought this action against Bay City Land and Cattle Co., a California corporation, and nine individual directors and managing *344agents of the corporation, to compel the directors to account to the corporation for the reasonable rental value of premises owned by the corporation during the period of time they are alleged to have leased such premises for a rental less th...
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Plaintiffs, vendors in an installment contract for the sale of real estate, brought an action to “quiet title and foreclose contract” because of the asserted failure of defendants to make the installment payments as required. Defendants by cross-complaint sought affirmative relief. After trial without a jury, judgment was entered that plaintiffs take nothing, that they remove certain clouds existi...
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The complaint herein, as finally amended, alleges that since the year 1939 the parties “have had dealings together and as a result of which they have acquired and hold (real) property in which they cannot agree as to their respective interests”; that the record title thereto is held by the plaintiff, Verna V. O’Bryant, as trustee, but that *354“she recognizes that plaintiffs and defendant have int...
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On January 17, 1946, plaintiffs as buyers, the individual defendants as sellers and the corporate defendant as escrow agent, negotiated the sale of real estate by means of escrow instructions, one of the conditions made therein by the buyers being: “Hold for me termite clearance showing the property free and clear of infestation.” During the pendency of the escrow, the escrow agent submitted to...
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October 2, 1947, a modern four-lane highway was being constructed on State Highway 101 in San Luis Obispo County. At a point a mile or two north of the city of San Luis Obispo, the construction contractors had placed barricades across the old pavement and provided a detour or by-pass in the dirt alongside the old pavement. Kerosene flares were closely placed along the barricades across the pavemen...
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From a judgment of guilty of violating section 337a, subdivision 3,* of the Penal Code after trial before the court without a jury, defendant appeals. There is also an appeal from the order denying a motion for a new trial and a purported appeal from the sentence. Facts : Los Angeles City Police Officer Scheidecker on March 23, 1949, at about noon went to Jefferson Boulevard and Grand Avenue in Lo...
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Appeal by defendant, The Vita-Food Corporation, from a judgment for plaintiff in an action to recover compensation for services rendered under the terms of a written contract. The action was tried by the court without a jury. On February 5, 1942, appellant and respondent entered into a written contract by which appellant employed respondent to serve as its president from January 1, 1942, t...
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From a judgment in favor of plaintiff after trial before a jury in an action to recover damages for injuries resulting from a collision between a vehicle driven by plaintiff and a bus driven by defendant Brady and owned by defendant Bay Cities Transit Company, defendants appeal. Facts : On October 7, 1947, plaintiff was driving his car at about 15 miles per hour in a northerly direction on Four...
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Appeal from judgment dismissing a petition for writ of mandate. Petitioner brought an action in the municipal court of Los Angeles on a written contract signed by Mae Christian for the purchase of household furniture. Two persons were named as defendants under fictitious names. Defendant Christian failed to answer, whereupon a judgment by default was entered against her for the balance due on t...
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Defendant was charged with having received a wager on a horse race (bookmaking) in violation of subdivision 3 of section 337a* of the Penal Code. He pleaded not guilty. A jury trial having been waived he was tried by the court and found guilty as charged. His motion for a new trial was denied, proceedings were suspended and he was placed on probation for three years, six months to be spent in jail...
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Appeal by James Rawnsley from a decree determining the persons to whom distribution of an estate shall be made. Ann Seddon Rawnsley died testate. She left surviving, as her only heirs, James Rawnsley, her husband, and Ann Seddon Dempster and Ena Solly, daughters. In her will she bequeathed and devised her entire estate to James Rawnsley for life, remainder to Ena Solly. She omitted to prov...
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Petition for a writ of review whereby it is sought to annul an award of the Industrial Accident Commission. Petitioner and Jean Frances Brown entered into a contract of employment in California, the provisions of which were stated in a “Letter of Agreement,” dated August 19, 1947. The letter was received in evidence, and it stated that Miss Brown was employed by petitioner for service in its “Zone...
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Petitioners seek a writ of prohibition to restrain respondent court from taking any further proceedings in a divorce action entitled Edwin S. Douglas v. Fay H. Douglas, on the ground that respondent is without jurisdiction. As its return to the alternative writ heretofore issued, respondent has demurred to the petition on the ground it does not state facts sufficient to justify the issuance o...
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A writ of habeas corpus was issued on the petition of John F. Donovan who was at the time confined in the county jail under commitment following his conviction of contempt of court. His alleged offense consisted of disobedience of an injunction theretofore issued by which he was required to remodel a dwelling in the city of Santa Monica by the removal of 13 living units and the conversion of the ...
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Defendant, D. E. Howard, has appealed from a judgment rendered against him and from the order denying his application to vacate and set aside the judgment under section 473 of the Code of Civil Procedure. George T. Goggin, trustee of the bankrupt estate of the defendant, has also appealed from the order refusing his motion to vacate and set aside the judgment. Plaintiffs brought suit in Sh...
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This is an action to quiet title to two lots in separate blocks, and to two other lots in another block of a subdivision in San Diego. The plaintiff claims under various tax deeds to and from the state, and the defendants claim to be record owners of the property. The complaint, in the usual form, was filed on January 28, 1947, and alleged that the plaintiff is the owner in fee and entitle...
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94 Cal. App. 2d 412 (1949) C. E. ROUNDS, Respondent, v. JOSEPH DIPPOLITO et al., Defendants; GEORGE J. GARECHT et al., Appellants. Civ. No. 3833. California Court of Appeals. Fourth Dist. Nov. 2, 1949. Walker & Sullivan for Appellants. Oliver M. Charleville for Respondent. GRIFFIN, J. Many of the facts essential to a statement of the facts surrounding this appeal from the order here in...
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This is an appeal from a judgment quieting title to a lot in San Diego. The plaintiff claims as the former owner and the defendant claims under tax deeds to and from the state. The complaint, which was filed on April 17, 1947, alleged that the plaintiff is the owner in fee and entitled to possession. The answer contained a general denial, alleged that the defendant is the owner in fee and entitled...
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In this quiet title action the plaintiff claims as the record owner of the property and the defendant claims under tax deeds to and from the state. The complaint, filed on July 2, 1947, alleged that the plaintiff is the owner and entitled to possession. The answer, in addition to a general denial, alleged that the defendant is the owner and entitled to possession, and that plaintiff’s action is ba...
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This is an action to quiet title to Lots 10 and 11 in Block 13 of Valencia Park, Unit No. 2. The plaintiffs claim under tax deeds to and from the state, and the defendants claim to be successors to an intervening interest, thus becoming the record owners. The complaint, filed February 2,1948, alleges that the plaintiffs are the owners in fee and entitled to possession of the property. The ...
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This action was brought under section 2223 of the Welfare and Institutions Code to recover double the amount of old age aid paid to the decedent during the period from June 1, 1944, through January 31, 1948. A demurrer to the complaint was overruled, with 10 days to answer. The defendant refused to answer, and judgment was accordingly entered in favor of the plaintiff. The defendant has appealed ...
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Defendant and appellant Evelyn Marie Becker was charged with the crime of arson in the burning of a dwelling house in Crestline, and with burning insured property with intent to defraud an insurance company. The jury convicted her on both counts. She appeals from the judgment and order denying her motion for new trial. . Defendant and her present husband (Michael) were living in the .house whic...
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Appellant herein sought a writ of mandate to compel respondent Superintendent of the Department of Building and Safety of the City of Los Angeles to issue a *447 building permit pursuant to an application therefor. Upon presentation of the petition to the superior court an alternative writ was denied, no hearing being had or evidence taken. The allegations of the petition for a writ of mandat...
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Defendant was charged by information with violations of section 496bb of the Penal Code in counts one and two, in that he feloniously received, concealed and *453 withheld from the owner Harry Marón, certain articles of stolen jewelry, and with the crime of grand theft in count three, i.e., the felonious taking of personal property of the value of $300 from one Jerry Harwin. Jury trial was du...
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Recovery for alleged injuries by an automobile having been denied, appellant now demands a reversal of the judgment by reason of (1) the court’s denial of his motion for a continuance, (2) its exclusion of a writing by respondent Jackson purporting to admit his liability, and (3) rulings improperly excluding “material portions of evidence.” About 3 p. m., April 13, 1947, Timothy Connor (18 months ...
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Convicted by the court of attempted burglary of the second degree, appellant now seeks a reversal of the judgment on the ground of the insufficiency of the evidence. In the course of his argument he contends that the court erroneously admitted evidence of his admissions without proof of the corpus delicti. About 12:30 o’clock of a January morning appellant crossed an alley extending easterly fr...
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Review of an award of burial expenses and death benefit payable to Clara Lancaster, widow of Alex Lancaster. The question for decision is whether there was substantial evidence to justify the finding of the Industrial Accident Commission that the injury sustained by Alex Lancaster arose out of and occurred in the course of his employment. He was a spotter for Washington Cleaners and Dyers, a partn...
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In an action brought by plaintiffs as a class action in behalf of all creditors similarly situated, the court rendered judgment in favor of defendants. Plaintiffs appeal. Contentions The question to be determined is the validity of assignments made by certain certificate holders in defendant Pacific States. 1 Plaintiffs contend these assignments are void and should be set a...
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I concur. I am satisfied that the evidence in the ease at bar entitled the trial court to find that a confidential relationship existed between the testatrix and appellant, coupled with activity on the part of the latter in the preparation of the will, and from which a presumption of undue influence arose. This I say because, notwithstanding appellant’s admission that the testatrix told her, “You ...
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Respondent is the former wife of decedent, L. Vern Anthony. They began living separate and apart September 20, 1944, and a written property settlement agreement, dated November 3, 1945, was signed by them. The agreement contained the following recital: “Whebeas, it is the desire of the parties hereto to make a complete and final settlement of all of their property, affect property now owned by ...
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Appeal by defendant from a judgment in favor of plaintiff. Plaintiff is a merchandise broker and defendant is a manufacturer and packer of pickles and relishes. In 1945 and *5151946 plaintiff acted as a merchandise broker selling defendant’s products on commission. There was a written contract between the parties whereby defendant agreed to pay plaintiff a commission of 5 per cent on the value of ...
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This is an action for declaratory relief, to quiet title, for specific performance and for a restraining order. From a judgment in favor of plaintiffs, defendants appeal. It is defendants’ contention that (1) the superior court was without jurisdiction over the action by reason of the pendency of an appeal from an order denying a motion to vacate, recall *520 and quash a writ ...
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Plaintiffs have appealed from judgments, in two consolidated cases, which were rendered pursuant to orders sustaining general demurrers to the amended complaints with leave to amend the pleadings. The demurrers were sustained on the ground that the complaints fail to state facts sufficient to constitute causes of action. Plaintiffs refused to again amend their complaints and the actions were dismi...
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By his first cause of action plaintiff sought reformation of a deed dated February 13, 1923, by which the defendant Kiser as grantor conveyed to him certain real property near the city of Calistoga in the county of Napa. The basis for his claim being the alleged mutual mistake of said parties in the description of the property, and that Kiser intended to sell and tie intended to buy certain prope...
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The appellant sued to quiet title to a piece of residential property on Gault Street in the city of Santa Cruz. The complaint alleged that it was the community property of appellant and Mary M. Tompkins at the time of her death and that appellant’s claim thereto was based on his status as surviving spouse. Respondent Ernest L. Bishop was a son, and respondent Pearl Humphrey a daughter of Mrs. T...
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94 Cal. App. 2d 551 (1949) THE PEOPLE, Respondent, v. RALPH G. ACUFF, Appellant. Crim. No. 2610. California Court of Appeals. First Dist., Div. Two. Nov. 9, 1949. Ralph G. Acuff, in pro. per., for Appellant. Fred N. Howser, Attorney General, David K. Lener, Deputy Attorney General, Francis W. Collins, District Attorney, and Matthew S. Walker, Deputy District Attorney, for Respondent. GOODEL...
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By an interlocutory judgment of divorce it was adjudged that defendant was entitled to a decree of divorce on her cross-complaint, community property was divided, the custody of the minor child of the parties was awarded to defendant, and plaintiff was ordered to pay the sum of $45 per month to defendant for the support and maintenance of the minor. Upon the hearing of defendant’s motion for a ne...
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Appeal by defendants from a summary judgment rendered pursuant to section 437c * of the Code of Civil Procedure and from an order denying their motion to vacate *568 the same. The sole question to be determined is whether the pleadings and affidavits ‘ ‘ present a triable issue of fact. ’ ’ Plaintiff, a licensed real estate and business opportunity-broker, brought t...
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Joseph Capolino died in Merced County, November 22, 1945, whereupon Helen Capolino, representing herself as the surviving wife of decedent, was appointed administratrix of his estate, on December 3,1945. On May 16th, Helen Capolino filed an inventory and appraisement showing the assets of the estate to be of the approximate value of $50,000. In July, 1946, Hilda Matthews, daughter of Joseph Capol...
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94 Cal. App. 2d 578 (1949) THE PEOPLE, Respondent, v. RICHARD THOMPSON, a Minor, etc., Appellant. Crim. No. 2149. California Court of Appeals. Third Dist. Nov. 9, 1949. George T. Davis and Kenyon C. Keller for Appellant. Fred N. Howser, Attorney General, and C.J. Scott, Deputy Attorney General, for Respondent. *580 ADAMS, P. J. On June 10, 1948, Richard Thompson, a boy then 13 years of age...
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This is an appeal by the defendants city and county of San Francisco and the members and secretary of the city and county civil service commission from a judgment entered in favor of approximately 140 civil service machinist employees of the city and county, in which it was decreed by the trial court that plaintiffs should receive and defendants should grant to all of such employees who have had o...
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By this proceeding the state seeks to condemn certain candies owned by the claimant, Henry G. Walters, on the grounds that these candies are adulterated and misbranded. Originally included within the amended libel were 748 cases of Pep-O-Mint, Wint-O-Green and Five Flavors Life Savers, 15 boxes of Neceo Wafers, 84 boxes of Collins Walnettos and 593 boxes of chocolate bars. After the seizure, by...
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The defendants appeal from a judgment entered in an action instituted by plaintiffs to quiet their title to certain property located in Lake County. Plaintiffs and defendants are the owners of adjoining lots and the controversy concerns the location of the boundary line between their respective properties. By a deed dated February 8,1945, J. Dan Moy and Evalene Moy conveyed to plaintiffs L...
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The defendant was charged with the crime of issuing a check without funds with intent to defraud. In a separate action he was charged with the crime of possession of a firearm capable of being concealed upon the person by one previously convicted of a felony. He pleaded not guilty and not guilty by reason of insanity in each action. At his request the actions were consolidated for trial and tried...
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Action for damages for personal injuries and property damage arising out of a collision of vehicles. Defendant Madison Auto Sales Company of Jackson, Mississippi, through its agent, Rodney Henderson, contacted defendant F. M. Deason at Memphis, Tennessee, by telephone and Henderson stated that he had 125 trucks at the Naval Base at Oxnard, California, which he wanted unerated and moved to Jacks...
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This is an appeal by defendants from an order adjudging and decreeing that defendants hold legal title to certain real property in trust for plaintiffs, who, as the true owners, are entitled to possession. Defendants are ordered and directed to execute and deliver a proper deed of conveyance of the property to plaintiffs upon the payment to defendants by plaintiffs of a specified sum, with inte...
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Appeal by defendant Paul Cohn from a judgment of conviction of violation of section 337a, subdivision 2, of the Penal Code after jury verdict finding defendant guilty as charged in count one of the amended information, and from the order denying a new trial. The jury failed to reach a verdict as to defendant on counts two and three charging violations of section 337a, subdivision 4, and of conspi...
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Plaintiff obtained an interlocutory decree of divorce on October 8, 1947, on the ground of cruelty. The decree recites that by a stipulation entered into in open court, “plaintiff and defendant stipulated and agreed as to all matters embodied in this decree except the matter of whether or not plaintiff should obtain an interlocutory decree of divorce.” Custody of the two minor children of the mar...
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94 Cal.App.2d 651 (1949) MICHAEL SVISTUNOFF et al., Respondents, v. PETER SVISTUNOFF, Appellant. Civ. No. 14071. California Court of Appeals. First Dist., Div. Two. Nov. 17, 1949. Phil F. Garvey and Julia M. Easley for Appellant. Frank J. Baumgarten and Alex Riaboff for Respondents. DOOLING, J. [1] This litigation is between parents as plaintiffs and their son as defendant. In 1939, the so...
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The question for decision is whether a judgment denying the rescission of a contract for the conveyance of realty allegedly induced by fraud was also an adjudication of plaintiff's claim of a breach by the grantee of the same agreement to bequeath the property to appellant, such claim being coexistent with that alleged in the former action. In September, 1946, appellant sued the executor o...
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The question for decision is whether the actual tender of payment of an instalment of rent stops the running of interest as of the date of the tender. On February 15, 1944, respondents leased their hotel property to one Wolfe and his wife for a term of five years. The rental to be paid was $1,225 per month with an election to take in lieu of the fixed sum, 30 per cent of the rent revenue from t...
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This is an appeal by defendant Carpenter from a judgment quieting title in plaintiffs to certain real property situated in Los Angeles County. The complaint alleged plaintiffs’ ownership of the lands, and the adverse claims of defendants and prayed that the latter be adjudged to have no interest therein. Appellant denied all allegations of the complaint and alleged “that plaintiffs are barred i...
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From a judgment awarding respondents damages for slander of title and injunction against the publication thereof defendant appeals on (1) asserted errors in admitting certain testimony and (2) insufficiency of the evidence of the slander. Appellant and respondents are owners of Parcels 19 and 20 of Malibu Colony, contiguous properties in Los Angeles County. Prior litigation between them had det...
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In this suit against the sureties on an undertaking given to release an attachment, under sections 554-555, Code of Civil Procedure, the plaintiff has appealed from a judgment in favor of the defendants, which was rendered on the ground that the attachment was absolutely void and that the bond was therefore executed without consideration, and created no liability against the sureties. This appe...
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In this action for damages, arising from an automobile accident, the defendant county appeals from a judgment in favor of the plaintiff and also from an order denying its motion for a judgment notwithstanding the verdict of the jury. The accident happened in the community of Westminster at the “T” intersection of 13th Street, a county road, with Huntington Beach Boulevard, a through state ...
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From an order granting defendants’ motion for a new trial after a jury had returned a verdict in favor of plaintiff for the sum of $3,500 in an action to recover damages for personal injuries, plaintiff appeals. Facts : On November 16, 1948, the clerk in the trial court entered the following minute order: 11 Gome now the parties by their respective counsel, Royal M. Galvin for the plaintiff, and P...
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From a judgment in favor of defendant after trial before a jury in an action to recover damages for personal injuries received as a result of the alleged wilful misconduct of defendant, plaintiff appeals. Facts : Plaintiff, a stenographer employed in Beverly Hills, occasionally accepted an invitation to ride home from work with defendant who was employed in the same building. She paid no considera...
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From a judgment in favor of defendants predicated upon the sustaining of their demurrer without leave to amend in an action to recover damages for alleged invasion of plaintiff’s right of privacy, plaintiff appeals. *705 The essential allegations of plaintiff’s complaint as amended were that: In 1933, he had entered the prize ring as a professional boxer under the name of ‘‘Canvasback Cohen...
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Action to enjoin defendant Wilson from disclosing plaintiff's alleged trade secrets, relating to a process of coating and lacquering door knobs and locks; and to enjoin defendants Hillgren Manufacturing Company, and Mr. and Mrs. Carl Hillgren, Carl C. Hillgren and Theodore Hamm, copartners doing business under the name of Hillgren Manufacturing Company, from using information, relating to such tr...
Views: 1
Plaintiff has appealed from a judgment for defendants entered upon the verdict of a jury in an action for damages for personal injuries arising from an automobile accident. On the morning of September 2, 1947, plaintiff, who was driving his automobile southerly on Western Avenue in the city of Los Angeles, approached the intersection of 54th Street, where traffic signals were in operation....
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Plaintiff and his sister maintained a home together for many years. Neither of them was married. They lived on a little peach farm near Modesto. They adopted two children, a girl named Rosemary and a boy named Anthony. They took care of the boy and girl as good parents should, sent them to school, and raised them to womanhood and manhood. • Plaintiff’s sister died. Title to the farm was conveyed t...
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94 Cal. App. 2d 727 (1949) ALMA FANCHER, Respondent, v. RUTH E. BRUNGER, as Executrix, etc., Appellant. Civ. No. 17365. California Court of Appeals. Second Dist., Div. One. Nov. 21, 1949. Eugene Tincher for Appellant. Mary Swift Beeks for Respondent. DRAPEAU, J. After her claim therefor had been rejected, plaintiff brought this action against defendant as executrix of the last will and tes...
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We granted a rehearing in this case to give further consideration to the question of appellants’ contributory negligence. Since respondents in their petition for rehearing did not question the accuracy of the recital of the basic facts in our opinion previously filed nor our conclusion that their negligence was clearly established we copy that portion of our previous opinion: “Plaintiffs a...
Views: 2
Defendant was charged by information with contributing to the delinquency of a minor (Welf. & Inst. Code, § 702), a misdemeanor. He waived preliminary hearing and pleaded ‘1 guilty as charged in the information as deemed filed.” He also waived time for sentence and applied for probation. Thereafter the court pronounced judgment and sentence as follows: “Defendant is sentenced to the County Jail...
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From an order denying a motion of defendant Sampsell, (1) to vacate and set aside a judgment theretofore entered against him, and (2) for permission to file an answer to the complaint, said defendant appeals. Facts: The default of defendant Sampsell was entered October 2,1942, of which fact he and his counsel were apprised on September 17, 1943. On July 5, 1945, a default judgment was entered a...
Views: 0
These are appeals (1) by plaintiff from an order granting defendants’ motion for a new trial, and (2) by defendants from (a) a judgment entered in favor of plaintiff, and (b) an order denying defendants’ motion for a judgment notwithstanding the verdict. Facts: Plaintiff brought an action for false arrest and imprisonment against defendants. After trial before a jury a verdict was returned in favo...
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Plaintiff appeals from a judgment in Ms favor in an action brought by him to quiet title to certain real property in the county of Riverside. On October 28, 1939, plaintiff, as owner, agreed to sell and defendant to buy the property involved for the total purchase price of $750, payable as follows: “$30.00 cash, receipt whereof is hereby acknowledged by said party of the first part, and the remain...
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In July, 1918, the petitioner and appellant, Lewis Andrew Stuck, was granted a license to practice medicine and surgery in the State of California. On the 12th day of May, 1948, an accusation against him containing four counts of alleged unprofessional conduct was filed with the Board of Medical Examiners of this state. Counts numbered two and *754three were dismissed by the board and therefore do...
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This is an appeal by the defendants Beaumont Irrigation District, a public corporation, and others from a preliminary injunction restraining them, pending trial, from enforcing portions of a certain stipulated judgment between them and plaintiff Moreno Mutual Irrigation Company, a corporation. The latter corporation brought this action to quiet title to alleged water rights-and to set aside the...
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The question presented on this appeal is whether a property settlement agreement must be held to have barred the right of the plaintiff to receive, as beneficiary, the proceeds of four insurance contracts on the life of her former husband. The plaintiff and Benjamin L. Miller were married on September 21, 1935. At that time he was the holder of four life insurance contracts. Three of these were...
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This is an appeal by the plaintiff and cross-defendant from a judgment on verdict which awarded nothing to either the plaintiff or the defendant and cross-complainant in a personal injury action arising out of an automobile collision. In the early morning of October 9, 1947, plaintiff, Leila Nelson, was driving a 1941 Ford automobile in a westerly direction along Potrero Avenue in El Cerrito, C...
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This is a motion to dismiss an appeal. In January, 1937, Louise A. Reimer and her husband, Martin Reimer, brought an action against various named defendants. The case was tried over a period of several days in November, 1938, without a jury, before Honorable Maurice T. Dooling, Jr., then the duly qualified superior court judge for San Benito County who had been duly assigned by the Judicial Counci...
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Plaintiff and defendant entered into a property settlement on January 10, 1947, the stated purpose of which was to effect a complete and final settlement and adjustment of all property rights and interest of every kind and nature between the parties and to provide for the custody, care, support, maintenance and education of their two minor children, and for the support of plaintiff. Provisions ...
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Plaintiffs, Thomas and Myra Bassett, as the owners and sellers of a parcel of real property in San Mateo County, brought this action against Melvin B. Johnson as the buyer of the property, to recover $500 as liquidated damages for Johnson’s alleged breach of the agreement. From a judgment in favor of Johnson the Bassetts appeal. Johnson is a real estate broker and is a partner in the real ...
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The appellant herein was convicted in a jury trial, on a single indictment containing 13 counts, of six counts of felony, to wit, three of burglary, one of rape, one of robbery and one of assault with intent to commit rape, and of one count of simple assault. The offenses were committed against three individuals on three separate occasions. On each occasion there was a burglary and an attack on t...
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Appeal by plaintiff from a judgment for defendants in a derivative suit on behalf of shareholders of a mtual water company to rescind a sale of all of its assets. On October 18, 1946, an interlocutory decree was rendered in the action which adjudged: “1. That the sale and transfer of the assets and property of Mutual Water Company of El Jardín Tracts to Park Water Company be rescinded upon co...
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This is an action for partition of approximately 60 acres of unimproved land near Banning, jointly owned by plaintiff Emily J. Sting and defendant Mary Beck-ham. The only improvements on the land are a water well, a pump over which there exists a shed constructed by defendant Beckham and a 4-inch water pipe line running about 1,600 feet from the pump, across the real property, to a rock plant on ...
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94 Cal.App.2d 826 (1949) J. D. JEANES, Appellant, v. HENRY A. HOLTZ et al., Respondents. Civ. No. 3878. California Court of Appeals. Fourth Dist. Nov. 28, 1949. Meyer & Dreizen, N. D. Meyer and Samuel Dreizen for Appellant. Mize, Kroese, Larsh & Mize for Respondents. *827 GRIFFIN, J. Plaintiff's second amended complaint alleges that defendants Jack Patton and Bob Johnson were partn...
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Appeal from an order modifying a prior order made in an action for divorce with respect to the custody of a minor child. Michael H. Becker is the father of the child. Goldie Becker is the paternal grandmother. Lola Becker is his mother. The child is under the age of 14 years. On January 18, 1945, the father was granted an interlocutory decree of divorce. The decree awarded custody of'the c...
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This is an appeal by defendants from a judgment ordering them to specifically perform an agreement relating to the sale of certain real property owned by them in Tuba County. In addition, the judgment awarded damages to the plaintiff Rubel for his loss of use of the land by reason of defendants’ failure to convey and allowed the plaintiff Hall a real estate broker’s commission for his services ...
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The testator died on May 12, 1947. Three documents were admitted to probate as his last will and testament consisting of a will dated September 26, 1946, a codicil dated November 14, 1946, and a codicil dated April 2, 1947. Appellant George Dubois Jr., a son of testator, filed a contest wherein he alleged “That by the . . . codicil . . . of April 2, 1947 . . . decedent revoked the codicil ... of N...
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In an action for debt against Paul Matus the plaintiffs attached an Adams Patrol Grader which was being used by Matus on a construction job in Napa County. Anna Verutti filed a third party claim in the action which was commenced in Contra Costa County and thereafter the copartners, plaintiffs in the original action, filed their application to determine title to the grader. ' In due course this pro...
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This is an appeal from an order setting aside a default. Defendant was served with the complaint on August 31, 1948; default was entered September 16, 1948. Notice of motion to set aside the default was served November 10, 1948. Hearing on the motion was set for November 22d, continued to December 2d, on which last mentioned date it was granted. It is contended on appeal that: “1. Respondent’s fai...
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This is an appeal from the judgment. The action is for fraud and, among 10 specifications for relief in the prayer of the complaint, seeks to set aside a trust deed sale, an accounting and damages. It appears from the record that plaintiff had a judgment against one Charles H. Trowler; that said Trowler could not be found but plaintiffs discovered certain property belonging to said debtor; that Tr...
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From a judgment and order dismissing their petition to revoke after probate the purported lost will of Thomas J. Reynolds, deceased, and confirming the order admitting such will to probate, petitioners appeal. The sole question to be determined is whether the proponent *853 of the will has met the statutory requirements for proving a lost will. Section 350 of the Probate Code provides: “No ...
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Alleging that she was employed’by defendants for a period of one year at an agreed salary and was wrongfully discharged before the expiration of the employment period, plaintiff brings this action to recover the balance owing to her for the remainder of the contract period. From a judgment in favor of plaintiff, defendant Posell appeals. On or about July 1, 1946, plaintiff and defendants e...
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Defendants were charged in count I of an information with arson, in that, they unlawfully set fire to a dwelling house at 1401% East 15th Street in Los Angeles; and they were charged in count II thereof with unlawfully burning insured property, namely, furniture in said house. Trial by jury was waived. Defendants were convicted on both counts, and they appeal from the judgments and from the orders...
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This is a suit to cancel a gift deed to real property at Placerville, El Dorado County, on the grounds of lack of execution, mental incapacity and undue influence. From a judgment decreeing title to the real property in question to be in the defendants and cross-complainants, Frank B. Irwin and Ollie Irwin, husband and wife, subject to a life estate in the grantor, and a decree cancelling subsequ...
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The complaint in this action alleged that plaintiff, Madeline P. Venza and defendant Joseph J. Venza lived together from April 17, 1941, to March 5, 1945, under an agreement to pool their resources and efforts, and to share equally in their joint accumulations; that they accumulated property known as the Cannery which when acquired was of little value; that after its acquisition plaintiff devot...
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The defendant was charged with an assault with a deadly weapon, to wit, a loaded revolver, with intent to kill Tommy Young. He was tried with a jury and convicted of the lesser offense of assault with a deadly weapon. Prom the judgment which was rendered accordingly this appeal was perfected. The appellant contends that the verdict and judgment are not supported by the evidence; that he went wi...
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This is an appeal by defendant Stanley R. Eckert, et al., from an order striking plaintiffs’ memoranda of costs and disbursements and releasing a cash bond deposited to secure such costs. , Plaintiff brought an action against defendants for personal injuries in March, 1948, and defendants answered. On October 18, trial was commenced before a jury and several witnesses were sworn and examined. O...
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On November 1, 1948, in this action for unlawful detainer, plaintiff obtained a default judgment by publication of summons and on the same date a writ of restitution was served on defendant, pursuant to which all of the stock in trade and fixtures were removed from defendant’s place of business at Laguna Beach. Defendant moved to set aside the judgment under the provisions of section 473 of the Co...
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Pauline Harlan seeks by this proceeding in prohibition relief from, a conviction of contempt of court and a sentence of three days in the county jail. The order was made in an action for separate maintenance in which petitioner is plaintiff, and James J. Harlan is defendant. An alternative writ having been issued, respondent superior court demurred to the petition, and J ames J. Harlan filed an a...
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Elizabeth McPherson in her younger days lived in the Cuy ama Valley, not far from where Kern, San Luis Obispo, and Santa Barbara Counties come together. She and her husband were homesteaders. They raised a family of four girls and one boy. Two or three of the girls were born there. The land wasn’t much good; it was dry farming; it didn’t rain much, and times were always hard. After her husband die...
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This action was brought to recover damages for personal injuries suffered by Gertrude Woods who was struck by an automobile driven by defendant Eitze, Jr., a minor. His parents are joined as defendants. After trial by a jury a verdict was rendered in favor of plaintiffs for the sum of $5,000 upon- which judgment was entered. Plaintiffs moved for a new trial solely upon the issue of damages. Def...
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This is an appeal by petitioner from a judgment precluding her from participating as an heir in the distribution of the estate of Sara E. Barton, deceased. By her petition to determine heirship, it was alleged that decedent died intestate; that petitioner was the illegitimate daughter of decedent’s father who had legitimated her by compliance with the requirements of section 230 of the Civil Code;...
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Several appeals are involved herein resulting from the filing of divorce proceedings. A property settlement was executed by Mauvia and Lowell Bradford which provided a total payment of $1,800 in satisfaction of prior orders of the court directing monthly payments, including the sum of $300 designated as attorney’s fees and court costs in the pending proceeding. The property settlement further prov...
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In an action for declaratory relief, defendants appealed from a judgment in favor of plaintiff determining a lease to be in force and that an option to renew had been validly exercised. Facts Resolving conflicts in favor of plaintiff, the evidence shows the following: In 1935, plaintiff noticed the property here involved, which was then unimproved real property along Bayshore Highway in Santa Clar...
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Plaintiff, as assignee of The Emporium, a San Francisco department store, sued for $2,705.95 as owing for merchandise. Defendant Ellis Henderson admitted owing $10.76 but denied owing any more, and judgment was entered for $10.76 against her. While the plaintiff appealed from the whole of the judgment we assume the appeal was addressed only to that part of the judgment which denied a recovery for ...
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On June 16, 1947, the State Personnel Board certified respondent Boutwell to the State Board of Equalization for probationary appointment to the position of liquor control officer and Boutwell received such appointment. On November 18, 1947 (admittedly within the probationary period), Boutwell was given written notice by appellant of his rejection from his position “because you have failed to dem...
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This is an appeal by defendant from an order denying his motion, made under section 473 of the Code of Civil Procedure, to set aside an order, entered in a divorce action, directing him to pay $5,000 to his wife’s attorney as attorney’s fees pendent lite. The order for payment of attorney’s fees was made at the hearing of an order to show cause on May 3, 1948, and was entered on the minutes of the...
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Plaintiff Joseph Caccamo sued defendant Ruth Swanston for personal injuries. In a second cause of action plaintiff Rosfe Vignola as surviving widow sued defendant Ruth for damages for the death of her husband Silvio Vignola. Katie Vignola, mother of Silvio, filed a complaint in intervention asking damages of both defendant Ruth and plaintiff Caccamo. A jury awarded plaintiff Caccamo damages in ...
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Appellant was accused by an information of the crime of arson, defined by section 447a of the Penal Code, to which he pleaded not guilty. At the first trial the jury disagreed. An amended information was filed alleging that he had been convicted of a felony in the State of New York in 1926, and of another felony in 1931 and another in 1939 in Michigan, all three of which he admitted. On the second...
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Convicted of having served intoxicating liquor to a person who was obviously intoxicated, an act made a misdemeanor by section 62 of the Alcoholic Beverage Control Act (Stats. 1937, p. 2175; 2 Deering’s Gen. Laws, Act 3796), the defendant has appealed, contending that the evidence is insufficient and that the trial court erred in permitting two witnesses to testify that in their opinion the patron...
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The plaintiff and the defendant Phillips were married in 1941. In October, 1944, they contracted for the purchase of a house and lot in Fresno which they occupied as a home. On February 19, 1945, this property was deeded to them as “Eobert M. and LaVerne J. Phillips, husband and wife, as joint tenants. ’ ’ This deed was recorded on May 18, 1945. In December, 1945, these parties separated and the p...
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The Johns Hopkins University of Maryland, and the executor and executrix of the will of Ida H. Hyde, appeal from that portion of the order of the probate court imposing, over their objections, an inheritance tax on certain properties transferred to the university by decedent during her lifetime. Admittedly, no trusts were created by the transfers, inasmuch as Maryland prohibits charitable trusts. ...
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This is an appeal from an order directing defendant administratrix to pay plaintiff $4,000, plus interest and costs, as restitution of that amount which was paid deceased by plaintiff for shares of stock sold by deceased before a permit had been issued and therefore in violation of the Corporate Securities Act [Stats. 1917, p. 673; 2 Deering’s Gen. Laws, Act 3814], The complaint states two...
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This is an appeal from a judgment upon a jury verdict in favor of plaintiff, George Gibson. On June 4, 1945, plaintiff, a truck driver employed by Maas Steel Company, recovered a judgment in the sum of $65,000 against Columbia Stamping and Manufacturing Company for personal injuries suffered while unloading some sheet steel which he was delivering to Columbia. Columbia became bankrupt, and the ...
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Defendants, individually and as copartners, appeal from a judgment entered after a jury verdict of $4,000 in favor of plaintiffs in a personal injury action, the result of an automobile accident. It is alleged in the complaint that in February, 1946, defendants so negligently parked a tractor and semitruck on a highway as to cause to violently collide with it an automobile operated by Frank Castr...
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The appellant’s amended complaint seeks recovery based upon an alleged assignment to appellant by one Robert L. Neville, doing business as Neville Industries, of all moneys to come due by virtue of a purchase order under which the respondent Peters, doing business as Peters Metal Products Company, ordered certain aluminum eastings from Neville. In the language of appellant’s brief, recovery is sou...
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This is an appeal by plaintiff from the judgment following a jury verdict for defendants. According to appellant, “Plaintiff, Lauretta M. Garcia, seeks to recover damages for personal injuries and moneys expended as a result thereof, caused by the negligence of defendant, police officer, John Twiford, while engaged in the *54due course of Ms employment, at which time he used an automobile owned by...
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Defendant was charged with the murder of his wife. In a trial by jury, under his plea of not guilty, he was convicted of murder in the first degree, and the punishment was fixed at life imprisonment. In the trial before the same jury, under his plea of not guilty by reason of insanity, the verdict was that he was sane. He appeals from the “conviction” and from the order denying his motion for a...
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Plaintiff sued in mandate to compel the issuance of a building permit. Following a trial on an agreed statement of facts the trial court denied the application, basing its judgment on a written opinion which we quote in full and adopt as the opinion of this court, with minor editing. It follows: “This is a proceeding in which plaintiffs seek a writ of mandamus to compel the defendant to issue a bu...
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This action for divorce was tried as a default. At the close of plaintiff’s case, the trial judge stated that there was not sufficient evidence to sustain a finding of extreme mental cruelty. Judgment followed denying plaintiff’s prayer for a divorce. The plaintiff testified that her husband was in the military service, stationed in Hawaii; that when the minor child of the parties was born in 1947...
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The parties to this action became involved in a controversy respecting their rights under the following provision in a lease of real property: *89 “At the expiration of this lease, Lessor agrees to give Lessee first refusal for an additional term of lease, at rentals and terms to be mutually agreed upon at that time, provided, the said Lessee shall faithfully comply with and perfo...
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By a petition for determination of heir-ship, the heirs at law of Cathryn Braun Ball, the predeceased spouse of the intestate, Arthur Ball, seek distribution to them under sections 228 and 229 of the Probate Code of all of the separate property of Cathryn Braun Ball, and one-half of all of the community property of said predeceased spouse and decedent. In opposition to such petition, the heirs ...
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This is an appeal from an order denying the motion of appellants Ash to quash a writ of execution issued after entry of judgment upon a cross-complaint in favor of the appellants’ codefendant, the respondent Pianka, in an original action brought by Pfeiffer to foreclose a mortgage on real property executed by appellants to secure their promissory note. The pertinent portions of the record ...
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In 1935, Narcissa Hanna employed Samuel Taylor, an attorney at law, to collect three notes totaling $750, with interest at 7 per cent, all dated February 23, 1932. These notes were signed by the defendants and were payable to Mrs. Hanna “and/or” her former husband. Mrs. Hanna delivered these notes indorsed in blank to Taylor with instructions to collect them. A few small payments were made and on ...
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Plaintiff's automobile having need of mechanical improvement, he left it with defendant’s service department. Upon his return several hours later he engaged in conversation with the mechanic who had made the repairs. While the workman was explaining that he had installed a new fuel pump he dropped the old one upon plaintiff’s great toe. Judgment was entered upon the verdict for plaintiff from whic...
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Charles Willis Moore, also known as C. W. Moore, died November 30,1947, leaving as heirs at law a sister and numerous nieces and nephews. Celina Thomas, a niece with whom decedent had been living, was appointed administratrix of his estate. In January, 1948, Mrs. Thomas found in decedent’s Bible a document purporting to be the will of decedent, which she offered for probate. Florence Kalb, anothe...
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Petitioner has idled separate petitions for the review of two awards made by respondent Industrial Accident Commission in favor of N. E. Huffman, said awards being based upon an alleged injury to Huffman’s left shoulder on August 23, 1947, and a later injury to his hip and back incurred September 13, 1947, both sustained while he was *126 employed by the Winter King Packing Company...
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On January 13, 1949, respondent filed in this court a notice of motion to dismiss this appeal, which notice was accompanied by a certificate of the clerk of the *130trial court in conformity with rule 42(a) of the Rules on Appeal, and an affidavit of due service upon appellant’s counsel. The clerk’s certificate shows that on December 7, 1948, appellant’s attorneys were notified of the cost of prep...
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This appeal was taken by Arthur C. Svoboda, the father of Linda Svoboda, a minor, from an order granting letters of guardianship of her person to respondent Gladys L. Hurst, her mother. Appellant and respondent were married in Illinois in 1938. In 1945, respondent sued appellant in the Superior Court of Cook County, Illinois, where they lived, and on August 31, 1945, was awarded a divorce on th...
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Appellants sued to recover a fire loss of $1,839.48, on an insurance policy written by respondent. Judgment, entered on the findings, was in favor of the insurer for its costs, and this appeal was taken. Appellants own a frame store building in San Jose. On July 4, 1945, respondent issued the policy in suit covering the property for $2,600 “while occupied only for barber shop purposes.” Appellant ...
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Appellant sued respondent for $5,000 in an action for money had and received. The $5,000 was escrowed with the title company which was joined only because of the escrow. It paid the $5,000 into court and was dismissed from the case. A judgment against the plaintiff, which awarded the $5,000 to respondent, was entered on the findings, and. this appeal followed. The litigation arose out of a...
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Appellants filed a complaint against respondents Frederick and Hill and others upon an alleged contract for the purchase of certain real and personal property. The action went to trial against Frederick and Hill alone and judgment was entered in favor of these defendants. Respondent Frederick is a real estate broker and respondent Hill is his salesman. Frederick had acquired an option to purcha...
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The appeal is from an order made in probate denying a motion made under section 473 of the Code of Civil Procedure to amend an order confirming a sale of real estate. The motion was based upon the ground that the portion of the order directing the administratrix to pay a commission on the sale to a real estate broker was inadvertently made because valuable services had not been rendered by him. ...
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Plaintiffs brought this action for the recovery of the sum of $2,362.05, designating their complaint as one for reformation of a contract and for damages. They were awarded the amount prayed for and the defendant appeals. The cause of action is upon a written contract which the trial court found entitled plaintiffs to receive for their services as real estate brokers, the difference betwee...
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Action by Sanford Novack, a minor, by his guardians ad litem, for damages for personal injuries sustained by him on the playground of a public school. At the close of plaintiff’s case, in a trial by jury, defendants’ motion for a nonsuit was granted. Plaintiff appeals from the order and judgment of nonsuit. The accident occurred on Sunday afternoon, September 22, 1946, at the Sheridan Street ...
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Marc Silver, a beneficiary under a testamentary trust created by the will of Isador Silver, deceased, *174 appeals from an order of the superior court awarding Helen Silver, decedent’s widow, a family allowance. Facts: By the last will and testament of Isidor Silver he created a testamentary trust of which Marc Silver (appellant) was a beneficiary. Helen Silver, decedent’s widow, filed a pe...
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This is an appeal from a judgment in favor of defendants predicated upon the sustaining of their demurrer without leave to amend to plaintiff’s second amended complaint, seeking to have his resignation from the Police Department of the city of Los Angeles cancelled on the ground of fraud and duress. There is also a purported appeal from the order sustaining the demurrer. Facts It was ...
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Defendant city appeals from a judgment in favor of plaintiff after trial before a jury in an action to recover damages for injuries resulting from a collision between an automobile in which plaintiff was riding and a motor vehicle driven by an employee of defendant acting within the scope of his employment. *183 Facts A judgment for $22,500 was rendered against defendant because of damages ...
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This proceeding in mandate involves the right of petitioner to become a member of the Alameda County Employees’ Retirement Association. Specifically it requires a determination of the question whether an elective officer has a right to membership and subsequent retirement under the provisions of the retirement law and the Constitution. If this question is answered in the affirmative then the d...
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The defendant was charged, by an information, with an assault with a deadly weapon upon Albert C. Durand, and with two prior convictions. He admitted the two priors, and pleaded not guilty to the main charge. He was found guilty by a jury, and from the judgment entered upon the verdict prosecutes this appeal. There is no doubt but that the evidence shows that defendant assaulted Durand, the bas...
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Plaintiffs and appellants, purchasers of five lots in the “Henry J. Brown Wilshire Terrace Tract” in the city of Los Angeles, upon which they desired to erect apartment houses, brought an action to quiet title and for declaratory relief against some of (but not all) the owners of other property in the tract, seeking to have set aside restrictions to single family residence purposes which had been...
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This appeal is prosecuted by plaintiff from a judgment entered on the verdict of the jury in favor of defendant, and is presented upon the judgment roll and a settled statement on appeal. From, such statement it appears that appellant was a passenger on a bus owned and operated by respondent, and as the bus was leaving the Cahuenga station at 4:30 a. m. of September 6, 1946, it collided with a rub...
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According to appellant’s brief this is an appeal by the defendant city “from a judgment in of the plaintiff for damages for bodily injuries and property damage caused by a collision between plaintiff’s automobile and motor vehicle driven by an employee of the defendant within the scope of his employment. The sole question in*215volved is whether the plaintiff complied with the statutory requiremen...
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Neva Nelson, formerly the wife of Albert E. Galvin, as contestant to the probate of his will appeals from the “Decree First and Final Account Distribution of the Estate” of Albert E. Galvin, filed February 18, 1948, and from an amendment thereto filed April 2, 1948. Albert E. Galvin’s will, dated April 30, 1946, named his brother as executor. He bequeathed his “home & furniture” to a sister, nephe...
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Clarence Abernathy, acting as a pilot for Nat’s Air Transportation Service, was, on October 17, 1946, killed in an airplane crash. In addition to his duties as pilot, Abernathy was secretary of Nat’s Air Transportation Service, a corporation, but received no remuneration for performance of the secretary’s duties. The employer’s insurance carrier, petitioner, denies liability on the ground that ...
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In an information filed by the District Attorney of Los Angeles County, defendant was accused in two separate counts of the offenses of grand theft, the grand theft from the person. The information also charged the defendant with a prior felony conviction which was admitted. In view of the fact that the jury was unable to agree on the verdict as to count I and that the same was subsequently dis...
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This is an action to recover for services rendered in connection with the sale of real property. From a judgment in favor of defendant after the sustaining of a demurrer without leave to amend, plaintiff appeals. The sole question for us to determine is whether plaintiff’s cause of action is barred by subdivision 5 of section 1624 of the Civil Code. * The material allegations ...
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Action for damages for alleged trespass. From a judgment in favor of defendants plaintiff has appealed. Plaintiff, with his wife and children, were tenants in possession of a dwelling in Los Angeles of which defendants were the owners. Defendant Max Salisbury, a veteran, having no home and needing a place of abode for himself and family, obtained a certificate relating to eviction from the Office ...
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Having been convicted by the court without a jury of eight violations of the Corporate Securities Act (Stats. 1917, p. 673; 2 Deering’s Gen. Laws, Act 3814) appellant demands a reversal of the judgments on two grounds, to wit, (1) the evidence is insufficient and (2) the act as construed by the trial court violates due process of law and equal protection of the law guaranteed by the Fourteenth ...
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This is an action for declaratory relief under an oil and gas lease and to require lessor to pay the cost of dehydrating oil. In this proceeding plaintiff seeks declaratory relief to determine the rights and duties of the lessor and lessee with respect to the dehydration or cleaning of the oil produced under an oil and gas lease executed by plaintiff’s predecessor, as lessee, with the predecess...
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This is an appeal from an order and judgment made under section 1020.1 of the Probate Code determining that an assignment by Georgia May Larson to appellant of a portion of her interest in the estate of Frederick 0. Larson was null and void. At the threshold of this appeal we are met with a dispute over what constitutes the record on appeal. The appellant filed a timely notice of appeal. H...
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Defendant and cross-complainant in a divorce action in which each party alleged cruelty appeals from a “particular part of the judgment . . . awarding and allotting to the plaintiff and cross defendant the real property standing in the joint names of the parties and consisting of a certain lot of land . . . together with the improvements thereon. ’ ’ *275 The only question involved on appeal ...
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Demurrer to plaintiff’s complaint was sustained without leave to amend, and judgment followed. Therefore, a somewhat detailed statement of the allegations of the complaint is necessary. The complaint alleges: 1. That the plaintiff, Faye F. Hamilton, appears by guardian ad litem; that the plaintiff and the defendant George D. Ferrall are sister and brother, and that their father died in 1940...
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John Angus and others, herein referred to as plaintiffs, brought an action against Howard M. London for the recovery of $4,500 damages for the alleged breach of a contract to buy two vacant residential lots. The amended complaint alleged an agreement in the form of escrow instructions to a bank. Defendant answered; denied that he had entered into a written agreement of purchase; denied that the...
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This is a proceeding to review an award made by the Industrial Accident Commission upon a claim of permanent disability, following an award for temporary disability. On August 7,1942, Joseph Smith sustained an injury while in the employ of Broadway-Locust Company, Incorporated. On October 29, 1942, he filed an application for compensation with the Industrial Accident Commission; and on *...
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This is an appeal from an order of the Superior Court of Stanislaus County, granting letters of guardianship of the person of Billy Harold Sloot, aged about 2% years, to Lome A. Campbell, great-uncle of the boy. Appellant, who is the mother of said child, opposed the application of petitioner. The court made no findings. The testimony shows that on January 17, 1947, an interlocutory divorce decree...
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This is an appeal from a judgment of dismissal in an injunction proceeding after sustaining general demurrers to the complaint without leave to amend. The plaintiffs are Western Gulf Oil Company and the Texas Company. One group of defendants are The Ohio Oil Company, General Petroleum Corporation of California, Union Oil Company of California and Barnsdell Oil Company, and will hereinafter be r...
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This is an appeal from a California judgment establishing a Nevada divorce decree as a valid foreign judgment. Plaintiff filed a complaint charging extreme cruelty and failure to provide and prayed for separate maintenance, community property, attorney fees and costs. Defendant answered by denying the allegations of cruelty and failure to provide and set up an absolute decree of divorce secured...
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This is an action to recover damages for unlawful eviction; for personal injuries sustained in an assault and battery committed upon plaintiff by defendants in furtherance of the eviction; and for treble damages for excess rent paid by plaintiff. The amended complaint alleges in substance that plaintiff rented the house from defendants, and that while in lawful possession thereof, the defendant...
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The testator, John L. Ridgway, died on December 17, 1947, aged 85; Loretta Ridgway, a second wife, survived, together with testator’s five adult children by a previous marriage, contestants and appellants herein. The respondent, Loretta Ridgway, petitioned for probate of a testamentary instrument dated March 18, 1947. Contestant *326 Claude A. Ridgway then petitioned for prohate of a previous w...
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Plaintiff in a divorce action appealed from those portions of an interlocutory decree of divorce which awarded her only 60 per cent of the community property. The sole question involved is whether the trial court abused its discretion in granting plaintiff, to whom it awarded a divorce on the ground of extreme cruelty, only 60 per cent of the community property. Pleadings Plaintiff wife bro...
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Appeal by plaintiff from an order of the superior court setting aside a judgment of divorce and permitting defendant to file an answer and cross-complaint, made on a motion under section 473 of the Code of Civil Procedure. The sole question involved is whether the trial court in making such order abused its discretion. Record In a divorce action brought by plaintiff husband against defendan...
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Petition for a writ of habeas corpus. The principal question is whether in a proceeding of this kind, the recital in the judgment of the juvenile court that due notice *353 of the hearing, in which a child was declared a ward of that court, was given to its mother, is binding on this court. The petition sets forth that on August 5, 1945, Martha Ann Orosco was born to Lupe Oros...
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In an information filed by the District Attorney of Los Angeles County, defendant was charged with a violation of section 11500, Health and Safety Code, a felony, in that he did on or about April 14,1948, have in his possession a preparation of heroin. Following entry of a plea of not guilty and waiver of a jury, the cause proceeded to trial before the court, resulting in a decision adjudging t...
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On the cross-complaint of Mrs. Weedon, an interlocutory decree of divorce was entered February 3, 1943. Pursuant to a “Property Settlement Agreement” executed by the couple two months prior to the decree, the court ordered appellant to pay his wife “for her support and maintenance the sum of . . . $66.67 per month . . . subject to all the terms ... in paragraph 7 of said property settlement agree...
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Appeals from orders appointing a receiver in each action. The ensuing discussion involves the issues of cause 16910. The conclusions derived will be applied to the companion cases. Appellant is the owner and operator of numerous oil-bearing properties in which respondents claim various interests. By a previous action respondents had been awarded a substantial judgment against appellant based upon ...
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Appeal from order denying petition for writ of error coram nobis. Appellant was convicted of murder of the first degree, and the jury fixed the punishment at life imprisonment. Judgment on the verdict was rendered on May 29, 1946, and no appeal was taken therefrom. On June 13, 1947, appellant made a motion for a “Writ of Review and Request for a new trial, ’ ’ and on that day the court denied...
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Appellant Rich sued defendant Riverbank Canning Company to recover damages for the failure of defendant to take and pay for a crop of tomatoes grown by appellant in 1944, for the purchase of which defendant had contracted. It was alleged in plaintiff’s complaint that defend*379ant had agreed to furnish plaintiff with picking boxes at his field, but had failed to furnish a sufficient number, and th...
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Respondents Abdul Rahim and Abdul Khanan brought this action to have it adjudged they were the owners of a lease on the Metropolitan Hotel in Sacramento, that appellants Ali Akbar and Khan Bahadar held the lease in trust for them, that an assignment of respondents’ interest in the lease to appellants be set aside on the ground of fraud and deceit, and that appellants be required to assign the leas...
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The defendant has appealed from a judgment of $2,106, which was rendered against her in a suit for damages for fraud exercised in procuring plaintiff to execute a written contract of employment as her agent to go to Alaska and sell properties to which she positively claimed title and ownership, when in fact she knew, or was charged with knowledge, that she did not own a substantial portion ther...
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The defendants have appealed from a judgment in favor of plaintiff, rendered pursuant to an order sustaining a demurrer to the amended answer without leave to amend the pleading. The judgment restrains defendants from constructing or maintaining an automobile garage and repair shop on plaintiff’s right of way and easement beneath the wires and electric lines on and across defendants’ land. The ...
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These two cases were consolidated for trial. Miller sued Boynton and others to enjoin the construction of a street through his property. Nordstrom sued Miller and others to establish an easement for street purposes through the Miller property. Both judgments were for Miller. The notices of appeal are limited to Fowle, Boynton and Nordstrom and these join in a brief which states the issues to be...
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By an information the appellant was accused of murder, in that on December 19, 1947, in Santa Clara county he did “willfully, unlawfully, feloniously, and with malice aforethought, kill and murder Raymond Coyne. ’ ’ Incidentally, he was charged with carrying a deadly weapon, a .25 caliber Colt automatic pistol, without a license. He pleaded not guilty. He was tried by jury and a verdict of guil...
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The within action to quiet title involves a lot sold to the state for delinquent county and city taxes for the fiscal year 1931-32 and purchased by plaintiffs from the state at a tax sale on August 22,1945. On May 16, 1947, the same lot was sold by the treasurer of the city of Los Angeles to one E. A. Stevens as the result of proceedings for the foreclosure of an improvement bond issued Decembe...
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By his last will and testament dated January 8, 1947, Patrick H. Leonard devised all of his estate, “both real and personal, and wheresoever situate, to my sister Ellen Bagwell and my said sister Margaret Danielson and to my brother-in-law, Herman Danielson, husband of said Margaret Danielson, share and share alike. ’ ’ He died on September 26, 1947, and on September 30, 1947, the executrix therei...
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Defendant was charged, by information, with the crime of armed robbery in that “he did, while armed with a certain deadly weapon, to wit, a gun, rob one Carl Torres. ’ ’ He admitted three prior felony convictions in 1932, of armed robbery, first degree, and that he served a term therefor in San Quentin, and a fourth previous felony of assault with a deadly weapon with intent to commit murder, com...
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This is an appeal from a judgment of dismissal of this action on the day set for its trial, and from an order denying appellants’ motion to restore the cause to the trial calendar and to set aside their default. On August 28, 1946, the complaint was filed alleging negligence of the defendant Pacific Greyhound Lines, its bus driver defendant Hurbaee, and defendant Hawkins, who was the drive...
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Appeal from judgment confirming arbitration award. Under contracts entered into in December, 1945, and February, 1946, appellants granted to respondent an exclusive license throughout the world excepting Canada to manufacture and sell popcorn machinery and equipment. Disagreements arose between the parties concerning the interpretation of the contracts and respondent asserted that appellan...
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Plaintiff was awarded judgment on a verdict for damages resulting from the drowning of his 4-year-old son. Defendant’s motion for new trial was granted and plaintiff appeals from the order. The order granting a new trial did not specify insufficiency of the evidence as one of the grounds. The trial judge stated in a memorandum of his ruling, and an entry in the minutes of the department clerk a...
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Petition for a writ of habeas corpus. On November 30, 1948, in the action of Bessie Johnson versus Andrew Johnson, there was entered an amended and *468 modified order requiring Andrew to pay Bessie $50 a month for her support, $150 counsel fees, and $25 costs. Andrew failed to make the payments, and, on January 18, 1949, he was adjudged guilty of contempt for willfully failing to comply with t...
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This is an appeal from a judgment in favor of defendant Vearl Shaver, entered upon the verdict of a jury, in an action for damages for the wrongful death of Henry Lyon, who was killed in an accident in the city of Long Beach, California, on or about May 31, 1943. The decedent sustained his fatal injuries when the station wagon owned and operated by defendant Vearl Shaver, and in which decedent wa...
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Separate motions and applications were filed in the two separate proceedings which were consolidated for the purpose of hearing and on appeal. *483On October 14, 1927, the trial court, based upon the application of T. M. Hancock, entered its decree establishing the “Westmorland Mail" as a newspaper of general circulation under section 4460 of the Political Code and the amendments thereto. A hearin...
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Plaintiff appeals from a judgment entered on the granting of a motion for a directed verdict in an action under the Federal Employers’ Liability Act (35 Stats. 65, 45 U.S.C.A. § 51 et seq.) providing that every common carrier by railroad engaged in interstate commerce shall be liable in damages to any person suffering injury while he is employed by such carrier in such commerce “resulting in whole...
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In this action to quiet title, the record reveals, as recited in respondents’ brief that, “There are three separate interests represented in this litigation. Plaintiff and appellant, who is the successor in interest of Allie M. Kays. The original owners of the property in question who are Ross F. Bundy and Blanche A. Bundy. The respondents Dean A. Tobias, Helen M. Philpott and Title Insurance and ...
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Appellant here, defendant below, appeals from a judgment adjudging respondent to be the owner of an award made by the American Mexican Claims Commission for Lots B and K in Eaneho Tijuana, Baja California, Mexico, to “The heirs of Jose Francisco Arguello as their interests may appear.” The American Mexican Claims Commission was created by an Act of Congress (Settlement of Mexican Claims Act of ...
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This case arose out of the same award as did Luckhardt v. Mooradian, this day decided, ante, p. 501 [207 P.2d 579], The judgment in the Luckhardt case was signed March 24,1948. On the following day Gwendolyn Lucero Mooradian, not as administratrix of the estate of Jose Francisco Arguello but individually, filed a petition in the probate court of the County of Los Angeles labeled “To Determine Heir...
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A notice of motion to dismiss the appeal in this action was filed by respondents on April 15, 1949, same being supported by a certificate of the clerk of the trial court which shows that notice of appeal was filed August 13, 1948, but no arrangements were thereafter made for preparation of the record on appeal as provided by the Rules on Appeal; and that on the date of the certificate, to wit, Feb...
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The defendant, Odell Hooper, was convicted by a jury of the crime of robbery of the first degree and sentenced to San Quentin for the term prescribed by law. His motion for new trial was denied. From the judgment and from the order denying a new trial this appeal was perfected. There is ample evidence to support the verdict and judgment. The only point urged on appeal is that the defendant was ...
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In' an information filed in Stanislaus County appellant was charged with an assault with intent to commit rape, upon the person of Mary Gorman. A verdict of guilty was returned by the jury, a motion for a new trial was denied, and from the court’s judgment and order denying a new trial defendant has appealed on the sole ground that the evidence is insufficient to support the judgment. Mrs. Gorman ...
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Petitioner, in his petition for a writ of habeas corpus, seeks to have his term of imprisonment and his eligibility for parole redetermined, contending that while he was adjudged an habitual criminal with three prior convictions and sentenced to imprisonment for life without possibility of parole, at least one of the alleged priors was not one of the offenses set forth in section 644 of the Penal...
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This is a motion made by defendant and appellant in propria persona to set aside this court’s order of July 29, 1948, dismissing his appeal under rule 17 (a) for failure to file an opening brief. Inasmuch as the remittitur has issued, the proceeding may be treated as a petition to recall the remittitur. The appellant, through his then lawyers, Albert M. King and William M. Savage of Oroville, o...
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This is an appeal from a judgment in favor of defendant corporation in an action - brought against it and others by plaintiff for damages for personal injuries resulting from the processing of plaintiff’s hair with a preparation known as a “Helene Curtis Creme Oil Cold Waves.” This *543 product was manufactured, sold and distributed by the defendant corporation to beauty shops gene...
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92 Cal.App.2d 547 (1949) WILLIAM HAERDTER, Appellant, v. MAXWELL JOHNSON et al., Respondents. Civ. No. 13975. California Court of Appeals. First Dist., Div. One. June 24, 1949. Alfred F. Breslauer, George Liebermann and Appel, Dains & Liebermann for Appellant. Dana, Bledsoe & Smith, Paul Dana and A. Dal Thomson for Respondents. WARD, J. Plaintiff appeals from the judgment entered o...
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92 Cal.App.2d 562 (1949) THE PEOPLE, Respondent, v. WALTER BROWER, Appellant. Crim. No. 2533. California Court of Appeals. First Dist., Div. One. June 24, 1949. Walter Brower, in pro. per., for Appellant. Fred N. Howser, Attorney General, and David K. Lener, Deputy Attorney General, for Respondent. *564 BRAY, J. Defendant was tried by a jury and found guilty of the crime of forgery. After ...
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This is an action based upon the breach of a contract for the purchase of certain raisins. On October 22, 1946, plaintiff sold his entire crop of raisins to Bonner Packing Company for $335 per ton. The contract provided that the seller guaranteed the fruit to be his sole and absolute property “free from all encumbrances”; that title should immediately pass to the buyer; and that payment was to be ...
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Plaintiff, Sally J. Murphy, wife of the insured John E. Murphy, was adjudged to be entitled to one-half of the proceeds of a life insurance policy issued by defendant company in which the assured’s mother, Mary V. Murphy, appellant herein, was named beneficiary. The defendant company deposited into court $10,000, double the face value of the policy, because Mr. Murphy’s death was due to ac...
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Defendant was charged by an information with a felony in that he did wilfully, unlawfully and feloniously escape from the California Institution for Men at Chino, California, while confined therein as a prisoner. He entered a plea of not guilty to the charge, waived trial by jury, and after a trial by the court was found guilty. Thereafter judgment was pronounced and defendant was sentenced to im...
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This is an appeal from the judgment denying the peremptory writ of mandate set forth in the petition, the basis of which was that the husband of petitioner, William Marshall, who was a member of the Police Department of the city of Oakland, “died as a result of an injury and a disability incurred in the performance of his duties.” Following the death of William Marshall petitioner filed an appl...
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The plaintiff, a boy 12 years of age, was struck by a southbound locomotive of defendant Southern Pacific Company at its Redwood City station and suffered severe injuries including the loss of the left leg below the knee and the major portion of the right foot. After a jury trial a verdict for $91,000 was returned in favor of the minor against the Southern Pacific Company and its engineer and b...
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Appeal by defendant Elbert, Ltd., from a judgment for plaintiffs ordering the City Treasurer of Los Angeles to reinstate a bond issued under the Improvement Act of 1911. (Sts. & Hy. Code, § 5000 et seq.) On January 25, 1946, and for a long time prior thereto, plaintiff Shaw was the owner of the bond which was a lien on Lot 8, Tract 6346 in Los Angeles. Shaw was president of and controlled plaintif...
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Plaintiff, a minor 3% years of age, appeals from a judgment for defendant after a verdict by a jury in an action for damages for personal injuries. On December 15, 1945, at about 10:30 a. m., defendant was driving a Buiek automobile in an easterly direction on Wood Avenue, in a residential section of Los Angeles. He was traveling at a speed of about 15 to 20 miles an hour when suddenly, approxi...
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The defendant was charged with the crime of “Forgery of Endorsement” in violation of section 470 of the Penal Code, it being alleged that he had with fraudulent intent forged the name of one Keister upon the back of a certain check and had uttered and passed this check thus forged with the intent to cheat and defraud certain individuals and corporations. A prior conviction of forgery was also cha...
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After judgment for defendant in an action for the death of a person struck by a San Francisco streetcar, plaintiffs appealed. They also attempted to appeal from the order denying their motion for new trial. No such appeal lies. Plaintiffs, son and daughter of the deceased, sue individually and as administrators with the will annexed of her estate. Grounds of Appeal 1. Insufficiency of the evidence...
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This action under the Federal Employers’ Liability Act was brought by appellant, the widow of Ray Brown, a brakeman employed by respondent. He was run over and killed by an engine while switching at Pittsburg, California, on November 25,1944. Nobody saw him fall, jump or step from the rear footboard of the engine tender, on which he had been standing just before the accident. The jury returned a v...
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The instant controversy involves no disputed questions of fact. The appeal is concerned with the effect, if any, of section 1858(b) and (f) of the Civil Code upon certain warehouse receipts, and raises the question whether that code section was repealed by the Uniform Warehouse Receipts Act [Stats. 1909, p. 437; 3 Deering’s Gen. Laws, Act 9059], adopted in 1909. According to appellant’s brief, the...
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Defendant Irving Zachary appeals from a judgment for damages resulting from the breach of a contract for the sale of a wholesale wine distributing business. In January, 1946, appellant caused to be prepared a contract in quadruplicate for the sale of such business to respondent for $3,000. Spaces were left in the instrument for the date, price and terms of payment. After the omitted data had ...
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The question for decision is whether there is sufficient evidence to support the finding that no enforceable contract was made by the parties. Appellant Claude Dickey is the son-in-law of respondent Amelia Pattison while his wife Edna and respondent Richard Pattison are her children. Amelia was the owner of Lot C in Santa Monica. It stood of record in the name of Richard. In August, 1944, a num...
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From a conviction of rape by force and violence defendant appeals, asserting the insufficiency of evidence, and errors in the admission thereof. The prosecutrix having finished her day’s work in a café at Port Hueneme entered her automobile nearby about 12 o’clock midnight, December 18, rested her head on the steering wheel to await the arrival of her husband and fell asleep. She was suddenly a...
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Plaintiff suffered a severe cut in her right wrist when a half gallon glass bottle of Purex burst while she was unscrewing the metal cap. She brought suit against Purex Corporation, Ltd., manufacturer and bottler of Purex, and Latchford-Marble Glass Company, manufacturer of the bottle. In a jury trial a judgment of nonsuit was entered in favor of Latchford-Marble Glass Company, from which no ap...
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Hilma Peterson, life beneficiary of a testamentary trust, appeals from an order denying her petition for partial distribution, and from the decrees of partial distribution and settlement of the executor’s account “in so far as said decrees are in conflict with the partial distribution sought by Hilma Peterson in her petition for partial distribution. ’ ’ We are of the opinion that the orde...
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Action to recover value of alleged fixtures and certain furniture which were removed by defendants from land owned by plaintiff. There was also a cause of action for damages for conversion of the alleged fixtures and the furniture, and a cause of action for rent for occupancy of the premises. The court found that defendant Mrs. Heydenreieh was a licensee on the land; that the said improvements ...
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Motion to dismiss the appeal which is from an order denying a motion to change the place of trial of a proceeding to revoke probate of a will. The ground of the motion is that the order is nonappealahle. Eespondents argue that the order is nonappealahle because it is not one of the orders listed in Probate Code, section 1240, from which an appeal may be taken and there is no authority in l...
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Appellant's motion to augment the record is granted and the clerk of the superior court is directed to forward to the clerk of this court the following documents: Affidavit for writ of execution to issue, filed March 22,1948; Writ of Execution issued thereon hy the Clerk of the Superior Court of the State of California in and for the City and County of San Francisco, and the Return of the Sheriff ...
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Defendants were charged in an indictment returned by the grand jury of Ventura County with grand theft in seven counts—the stealing of various sums of money from the Bank of Hueneme. Both defendants pleaded not guilty and waived trial by jury. The court found both guilty under the count charging the theft of $110,000, and the other six counts were dismissed. Mrs. Colton was placed on probation an...
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Appeal by trustees from a judgment directing them to pay to a beneficiary $400 per month from the corpus of a testamentary trust. The testator, John C. Ferrall, who died October 9, 1940, left surviving him a son, George D. Ferrall, and a daughter, Faye F. Hamilton. Under the provisions of his will, which was made April 15, 1938, he gave $2,000 to each of George D. Ferrall’s three sons, and gave on...
Views: 0
In an action for damages for fraud and deceit, plaintiffs appeal from a judgment entered following an order sustaining, without leave to amend, the demurrer of defendant B. J. Lange to the second count of plaintiffs’ amended complaint, after plaintiffs had informed the court they could amend no further. The demurrer of defendant Harold Lange to the amended complaint was overruled. Harold Lange ...
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This is an appeal on the judgment-roll from a judgment for (a) the restitution of certain leased premises, (b) the forfeiture of the lease, (c) $770 of unpaid rent, and (d) $100 attorney’s fees. The appeal is presented on appellant’s brief alone. No brief was filed by respondent, and neither side appeared when the case was called for argument. The findings show that respondent leased to defen...
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This appeal was taken by defendant E. Hagan from an order denying his motion for change of venue. The action was brought for $5,408.86 claimed to be owing on a transaction wherein defendants were alleged to have sold respondent a quantity of cheese for which respondent paid them $19,782 before discovering that it was unmerchantable; respondent alleged that after such discovery “the purchase the...
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This is an appeal by plaintiffs from an adverse judgment in an action for declaratory relief wherein plaintiffs sought a declaration that defendant had defaulted under an agreement to purchase certain real estate from plaintiffs and that plaintiffs were entitled to recover and retain the sum of $1,000 paid by defendant and deposited in escrow pursuant to the agreement of sale. The judgment of t...
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Plaintiff appealed from a judgment which was rendered against him pursuant to an order sustaining defendant Ott’s demurrer to the complaint without leave to amend the pleading. The amended complaint against the administrator of the estate of Richard D. Bishop, deceased, and Dorothy Elizabeth Bishop alleges personal injuries and property damages sustained by plaintiff in an automobile collision,...
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The defendant was convicted of eight counts of violation of sections 288 and 288a of the Penal Code. He was also found to have suffered two prior felony convictions, one for stealing an automobile and the other for operating an automobile without the owner’s consent. He was sentenced to the state penitentiary for the term prescribed by law as to each count, counts one and two to be served concurr...
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Plaintiff sued for damages for personal injuries sustained as a result of being struck by an automobile owned and operated by defendant, Opal Renfro. The latter having apparently lost control, her machine proceeded over and across a curb and onto the sidewalk, crushing plaintiff, a pedestrian, against an adjacent building. The city’s demurrer to the amended complaint was sustained without ...
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Having been convicted of attempted burglary in the second degree defendants have assigned five errors as grounds for reversal of the judgment. They contend that their cause was prejudiced by the court’s allowing “evidence of narcotics to be introduced.” The fact that such proof might have been prejudicial is not a ground for exclusion. The objection to it was made in the course of the testimony...
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Plaintiff brought this action to recover damages arising out of an accident wherein he was injured while riding as a passenger on a bus belonging to defendant corporation and operated by defendant E’Golf, an employee. La Mesa Boulevard, in the city of La Mesa, is a through boulevard running east and west. Palm Avenue runs north and south. Boulevard stop signs were erected on it as one approache...
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This is an action to quiet title in which plaintiffs seek to terminate an easement granted to the predecessors in interest of defendants for the construction and maintenance of a drainage ditch extending from Foss Lake to the San Luis Rey River in San Diego County. The area covered by Foss Lake is owned by the defendants, and in 1918 was owned by John Johnston, Jr., and his wife. On June 25, 19...
Views: 0
This is an action to recover damages for technical assault and battery—the performance by defendant, a physician and surgeon, of an alleged unauthorized operation on plaintiff, Florence Wheeler. (See Valdez v. Percy, 35 Cal.App.2d 485, 491 [96 P.2d 142].) The operation was performed in a hospital in the city of Ventura. A verdict was rendered in favor of defendant and plai...
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Appeals from orders denying change of venue from Santa Barbara County to Ventura County in five actions brought to recover damages for personal injuries to plaintiffs alleged to have been caused by the negligent operation of an automobile by defendants on a public highway in Ventura County. In each case, on December 17, 1948, defendants transmitted to plaintiff, by United States mail, copi...
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This action was brought to determine whether or not the defendant, in the operation of its telephone system, is occupying portions of streets in San Diego without a legal right so to do. The city first adopted a freeholders’ charter in 1889. The defendant succeeded to the rights of the Pacific Telephone & Telegraph Company. The latter company and its predecessors had obtained the right to ...
Views: 2
Plaintiff brought this action for an accounting, and to recover a balance claimed to be due for services rendered as ranch foreman for the defendant over a period of approximately four years. The parties agreed that plaintiff was employed by defendant as general foreman in defendant’s farming operations in Imperial Valley in December, 1939, and remained so employed until about the first of August,...
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At the time of the death of John Koehler on October 10, 1946, plaintiff and appellant, Ethel Broderick, was in possession of two cashier’s checks issued by the Bank of America, dated August 5, 1946, and August 30, 1946, for the sums of $600 and $500 respectively, payable to the order of John Koehler, and not indorsed. Plaintiff brought an action to quiet title to the checks, basing her claim upon ...
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The action herein arose out of a contract of sale whereunder appellant corporation located in Los Angeles undertook to sell and deliver to respondents whose plant was *820 in Denver, one carload of 280 aluminum sheets. The aluminum was shipped with order bill of lading consigned to appellant with arrival draft attached. Respondents, upon notification by the railway company, paid th...
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In this habeas corpus proceeding petitioner alleges that he was convicted of violating section 210 of the Police Code, part of chapter VIII, article 2 of the San Francisco Municipal Code. The California Constitution, article XI, section 11 provides: “Any county, city, town, or township may make and enforce within its limits all such local, police, sanitary, and other regulations as are not in con...
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In an action for wrongful death the jury returned a verdict for defendants. The court granted a new trial on the ground of insufficiency of the evidence and defendants appeal. The death was caused by a collision of two airplanes on the ground at a privately operated airfield. This field has an easterly and westerly runway about 3,000 feet long and 400 feet wide. The northerly 300-foot strip is ...
Views: 0
A document purporting to be the last will and testament of Filippo Cecala, dated February 9, 1935, was admitted to probate after a contest tried by jury. A new trial was denied. From the order entered on the verdict this appeal was taken. The contestants and appellants are the son and daughter of the testator; the proponent and respondent his other daughter. The testator died on February 12, 19...
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Plaintiff and appellant procured an interlocutory decree of divorce from respondent’s intestate in 1925 and the final decree was entered in 1926. The court awarded her $50 per month alimony. Only $55 was paid by the decedent to appellant and after his death in 1945 she sued his administrator for the accrued balance amounting to $11,850. The court found that the claim to all instalments which ac...
Views: 5
Plaintiff's predecessor in interest was adjudged bankrupt in October, 1942, and an indebtedness of defendant Joseph M. Keegan was found to be an asset of the bankrupt. On September 22, 1943, the sum of $741.93 was found by the bankruptcy court to be due and owing from said defendant. Plaintiff acquired this obligation for value in February, 1946, and obtained judgment thereon in the Municipal Cou...
Views: 0
Appeal by plaintiff from a judgment for defendants in an action for damages for fraud in the sale of real property. The facts as found by the trial court are these. On August 26, 1946, defendants Benton and Marlow, with intent to deceive plaintiff and to induce her to purchase the real property which was improved, falsely represented to her that one of the dwelling units on the property wa...
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Appeal by Anthony J. Xydias, executor of the will of Marina A. Xydias, from an order of the probate court quieting title to a parcel of real property in her devisees and against his claims in his individual capacity. Marina A. Xydias, a resident of Los Angeles, died testate on September 26, 1943, in Manila, Philippine Islands. Her will was admitted to probate in the Superior Court of the C...
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This is an appeal from an order granting a petition for a writ of habeas corpus and discharging the petitioner. The petitioner was found guilty of manslaughter, a misdemeanor, without gross negligence. On January 10, 1947, his application for probation was granted and he was released upon the conditions that he violate no laws, that he refrain from the use of intoxicating liquors, and that he refr...
Views: 8
Prosecution for illegal transportation and possession of narcotics and for conspiracy. Defendant was charged with illegal possession and transportation of narcotics and with criminal conspiracy to commit a violation of section 11500 of the Health and Safety Code. The information contained seven counts: the first three charged possession of morphine, opium and cocaine in separate counts, in the nex...
Views: 1

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