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All Reporters → cal-app-lexis → Volume 1952

Opinions in cal-app-lexis Volume 1952

Action for declaratory relief and to declare defendants’ tree which overhangs plaintiffs’ premises a nuisance. Defendants appeal from a judgment ordering defendants to abate the nuisance and awarding $200 damages. Questions Presented 1. The law concerning encroaching trees. 2. Sufficiency of the evidence to prove (a) a nuisance and (b) damages. 2. Evidence (a) Nuisance ...
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On November 3, 1945, George Altman and Billie Weleher, 13-year-old boys, were killed when an automobile driven by respondent Richard Peirano struck the bicycle on which they were riding. Two actions were brought, one by appellant Clark Altman for the death of his son George, the other by appellant Marie Smith for the death of her son Billie. They were consolidated for trial and in each case the v...
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In January, 1948, the parties hereto were divorced. The plaintiff was awarded the custody of the two minor children and the husband was ordered to pay $125 a month for the support of each. The parties thereafter each took a new spouse—the wife apparently getting the better bargain from the financial point of view. In January, 1951, the defendant moved for a modification of the support awards on...
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The question presented is-when a man and a woman cohabit without marriage, both knowing that a legal marriage is impossible, is the property acquired by them while so living together, title to which is taken as joint tenants, subject to distribution on the death of the survivor as community property under section 228 of the Probate Code. The answer is in the negative. There was no putative marr...
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Defendant was the owner of a vacant lot in the Pacific Palisades in Los Angeles County, upon which he constructed a new house. By their complaint, plaintiffs alleged that defendant offered to sell said property to them. That for the purpose of inducing plaintiffs to purchase the same, defendant falsely and fraud3ilently represented the extent to which said property was filled ground. That by reas...
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Plaintiff, shortly after he attained the age of 21, brought this action for damages for personal injuries alleged to have been sustained as a result of the negligence of defendants on September 29, 1938, when he was 14 years of age. In their answer, among other defenses, defendants pleaded two pleas in bar; (1) that on July 7, 1939, on petition of plaintiff’s father, the Superior Court of Los Ang...
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Petitioners seek a writ of mandate commanding the Superior Court of the County of Los Angeles (1) to annul its order granting a motion of defendants to quash a subpoena for the taking of the deposition of one Jack Kissel in an action pending in that court entitled Margaret F. Ahern et al. v. Charles M. King et al., No. 567679, (2) to deny the motion, and (3) to enforce the...
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Plaintiffs appeal from a judgment of dismissal after a general demurrer was sustained without leave to amend to their second amended complaint. The complaint, as amended, is for declaratory relief on the construction and interpretation of section 40 of the charter of the county of San Diego, which provides as follows: “In fixing compensation, the Board of Supervisors shall at least an...
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Plaintiffs brought this action against defendants to recover upon a promissory note for $500, made on May 17, 1948. It was secured by a pledge of a third trust *38deed for $4,215, executed by Harley V. Cooper, on April 24, 1948. Defendants answered and in effect admitted the due execution of the note, that it was past due, and had not been paid. By way of cross-complaint they alleged that plaintif...
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In this action a general demurrer to plaintiff’s complaint was sustained, with leave to amend, and plaintiff having declined to file an amended pleading, a judgment was entered against her, from which she appeals. The facts upon which this action is based, and as alleged in the complaint, may be summarized as follows: On March 14, 1951, plaintiff entered the defendants’ place of business, a bak...
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Plaintiff sued for $5,000 as money had and received for his use and benefit. His claim was in reality for money due under an express oral agreement and which also became due upon mutual cancellation of the agreement; defendant counterclaimed for $5,000 alleged to be due him under the same agreement, and for other relief. Plaintiff appeals on the judgment roll from the judgment rendered in a trial...
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Plaintiff Olivia Taylor, a passenger in a taxicab owned by defendant Luxor Cab Company and driven by defendant Emanuel Schwarts, was injured when the cab was struck by a passenger car owned and driven by defendant Jack Newman Rabinowitz. The jury rendered its verdict in favor of plaintiff and against all three defendants. From the judgment entered thereon, the cab company and Schwartz (hereinaf...
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In 1916 the plaintiff and appellant married Charles Barnes. In 1945 she obtained a decree of divorce from Barnes in Nevada and shortly thereafter married her cousin Bryon. In 1949 she commenced an action against Barnes for the sale of a parcel of real property standing of record in her name and that of her former husband together with some miscellaneous tools claimed to have been community propert...
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This cause was tried upon an agreed statement, the controlling facts of which may be summarized as follows: Plaintiff is a sanitary district duly organized undei; the Sanitary District Act of 1923. Its resolution No. 57, authorizing publication for bids for a sanitary disposal system, called for one publication of notice inviting bids. This notice was published on September 15, 1947. Three days la...
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In this mandamus proceeding, the Superintendent of Public Instruction and the Controller of California appeal from a judgment directing them to apportion and pay to petitioners, Los Angeles City School District and Los Angeles City High School District, the sum of $211,789.91 under the provisions of article 2, chapter 15, division 3, of the Education Code, as additional apportionment for the co...
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Respondent, Morris Genser, who held a position as Investigator, Grade Two, in the Motor Vehicle Department, was suspended from his position on May 6, 1948. Charges were filed against him on May 12, 1948, and the appellant State Personnel Board, through a hearing officer, conducted a hearing on the charges on July 20,1948. The State Personnel Board found that the following charges against responde...
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Plaintiff Pehau, the owner and lessor of a tavern known as Oak Grove Tavern, located near Redding, California, brought this action on November 22, *92 1949, to specifically enforce the terms of the lease which provided for a retransfer of an on-sale liquor license to the lessor upon termination of the lease. It was alleged that the lessees failed to pay rental of $200 per month due...
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Plaintiff-respondent brought this action to recover damages for personal injuries sustained by him while preparing to unload steel from flat cars owned and operated by defendants-appellants. The jury returned a verdict in favor of respondent in the sum of $40,000. Upon appellants moving for a new trial it was ordered that the same be granted unless respondent would consent to a reduction in the s...
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Plaintiff brought this action for annulment of marriage against defendant upon the ground that at the time of the purported marriage ceremony between them defendant was married to one Charles Orr, from whom she had only obtained an interlocutory decree of divorce. The final decree was obtained on April 7, 1941, about six months after the marriage. These facts are conceded. Defendant showed that s...
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This is a motion to dismiss an appeal on the grounds that the judgment has been satisfied, and that the appellants have voluntarily accepted its benefits to the detriment of respondents. *114 The Maekays brought this action against the Whitakers, the Emslies, James C. Philips and the Philips corporation for declaratory relief and to quiet title to a parcel of property on which the Emslies had...
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Appellant, with two others, was convicted in 1948 of certain counts of forgery. (Only one of the others appealed. See People v. Robinson, 102 Cal.App.2d 800 [228 P.2d 583].) On October 5, .1951, appellant, in propria persona, filed in the superior court in the original criminal proceeding a “Motion for the Records.” This requested the court to order the clerk to deliver to appellant the clerk...
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Defendant was accused of four violations of Penal Code, section 288, and was found not guilty on three counts and guilty on one count. Three of such offenses, including the one on which defendant was found guilty, were alleged to have been committed with a little girl between 5 and 6 years old. To the other alleged offenses there was no eyewitness except the child involved but in the case of the ...
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Appeal by plaintiff from a judgment in his favor. On October 26, 1945, plaintiff, owner of agricultural land, made the following lease to defendant to raise alfalfa: “Lease for 30 acres corner Gale & Hasciendo Mr. Giacomo Dotta & C. L. Nye. C. L. Nye to furnish seed and water and land. G. Dotta to furnish all work and deliver % crop to 4611 Fifth Ave. W...
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Appeal by plaintiff and cross-defendant from a judgment for defendant and cross-complainant on her cross-complaint in an action for money. Since there is no appeal from an order denying a motion for a new trial (Code Civ. Proc., § 963), the appeal therefrom will be dismissed. On May 3, 1949, plaintiff, the maternal grandmother, Betsy Mansfield Lovett, the mother, and Herman W. Lovett, the ...
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Defendant was charged in four counts with (1) a violation of section 288 of the Penal Code, lewd and lascivious act on the body of a child 10 years of age (Count I); (2) a violation of section 288(a), copulation of the sexual organ of the same child (Count II); (3) a violation of section 286, sodomy on the same child (Count III); a violation of section 207, kidnaping the child (Count IV). He wa...
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The plaintiff was severely injured in a collision between an automobile in which he was riding as a passenger and another car driven by Alfred Erickson, who died shortly after the collision. The accident happened on November 11, 1948, and this action was filed on November 9, 1949. The court, sitting without a jury, found for the plaintiff and gave him judgment for $32,400. A new trial was denie...
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Plaintiff appeals from a judgment of non-suit in an action to recover a real estate broker’s commission alleged to be due under the terms of a written contract. Plaintiff alleged that he had fully performed his obligations under the contract, which reads as follows: “Mr. George S. Denbo 27111 Buckskin Lane Rolling Hills Via Lomita California “Dear Mr. Denbo: 111 enclose herewith ...
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Defendant Berk has been engaged in the real estate business in Los Angeles for many years. Plaintiff Vogel was a manufacturer of ladies’ suits and coats. These men, prior to the events leading up to this litigation, were neighbors. Vogel told Berk that he had “a little money lying around” and “he would like very much to be given an opportunity” to put some money in one of his real estate deals. B...
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Plaintiffs are the owners of the north half of Section 28, Township 6 South, Range 8 East, M.D.B.&M. Defendants are the owners of the south half of the same section. A dispute arose between them concerning the boundary of their respective properties and the ownership of a narrow strip of land along said boundary. The strip in question is approximately 12 feet wide at the westerly end and approx...
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This is the second appeal taken in this case. Upon the first appeal (101 Cal.App.2d 41 [224 P.2d 765]) the rulings of the trial court were affirmed. In short it was held (1) that the allowance of a claim filed by the county of Los Angeles for the sum of $554.89 was not subject to attack; (2) that the court properly disallowed appellant’s claim for reimbursement for funeral éxpenses of decedent. ...
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This is an action to recover the payments made under a rescinded contract. The defendants, with one Frymeir and one Castillo had previously purchased certain land in Mexico. Title was taken in the name of Castillo, in order to comply with Mexican law, with an oral agreement that he would hold such title in trust, one third for himself, one third for Frymeir, and one third for Ingle and Tadloek, an...
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This is a mandamus proceeding to review an administrative order of the Real Estate Commissioner revoking plaintiff’s license to act as a real estate broker. From an adverse judgment plaintiff appeals. In September, 1948, one Rowley owned a motel in Santa Monica. Marks had learned from others that Rowley had listed the motel for sale. On September 24 Marks telephoned Rowley requesting a listing ...
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Plaintiffs brought this action to set aside the sale of a parcel of realty made on foreclosure of a deed of trust after default. Plaintiffs are the trustors, defendant Title Service Company, the trustee, and defendant R. Reese Myers, the beneficiary, named in the deed of trust. Defendants answered, Title Service Company filing a cross-complaint seeking instructions and declaratory relief. The cou...
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Plaintiffs and cross-defendants appeal from a judgment in favor of cross-complainants and respondents in an action for declaratory relief and injunction. Plaintiffs Robert E. Hoffman and wife were the lessees and operators of premises known as the Leland Hotel in the city of San Diego. The hotel is situated in a business building of three stories and occupies one-half of the second floor a...
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Plaintiff, a switchman, sued under the Federal Employers’ Liability Act for personal injuries sustained while switching in respondent’s yards at Eugene, Oregon. The action was prosecuted on the theory that respondent had not furnished appellant, its employee, a safe place in which to work. The court granted a motion for nonsuit and from the judgment entered thereon this appeal was taken af...
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This is a proceeding in quo warranto alleging that defendant water district failed of formation and demanding it he ousted from all corporate rights and privileges. The district appeals from an adverse judgment. The organization of the district in the Malibu section of Los Angeles County was attempted by an election under the County Water District Law. (Wat. Code, § 30000 et seq.) At the e...
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Plaintiff in an amended and supplemental complaint alleged that he had entered into an oral contract with defendant to purchase from him about 200 head of cattle for an agreed price of $20,000 of which $100 had been paid ; that subsequently he tendered to defendant $19,900 and •demanded the delivery of the cattle, which defendant refused. *235Plaintiff also set forth a memorandum written by plaint...
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Eight actions were commenced against the State Franchise Tax Commissioner to obtain a refund of personal income taxes paid by plaintiffs under protest for the years 1935 and 1936. The eight actions were consolidated for trial and were tried on a stipulation of facts from which the court made findings and drew the following conclusions of law: “I “That the income received by Monarch In...
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Plaintiffs instituted an action to recover damages resulting from a fire alleged to have been caused by defendant corporation, acting through its agent, defendant Lupella, in negligently causing a fire which damaged property of plaintiffs. A cross-complaint was filed and after trial before the court without a jury, the trial court found: (a) “That it is true that on the 12th day of April, ...
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Prom a judgment in favor of plaintiff after trial before the court in an action to recover damages for breach of a contract to permit plaintiff to do all defendant’s hauling of its prefabricated houses, defendants appeal. *257 Fads: On March 14, 1946, defendants wrote plaintiff as follows: “Ravel Trux Co. 1528% North Cordon Street Hollywood, California ‘...
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From a judgment in favor of defendants, predicated upon the sustaining of a demurrer to their third amended complaint without leave to amend, in an' action to recover damages for wrongful eviction, plaintiff appeals. Facts: On February 21, 1948, plaintiff filed a complaint for wrongful eviction. Subsequently, after various proceedings, a third amended complaint was filed December 5, 1949. In this ...
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The Hollywood Turf Club by a writing engaged appellant to remodel and renovate its grandstand by removing two floors of a section and by reconstructing three floors. For the purpose of executing its contract, appellant let 21 subcontracts with the approval of the club and employed 125 men for the general work. The Arenz-Warren Company had the subcontract to do the painting and it-employed a sup...
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Dr. Mario was accused before respondent of having violated section 2377 of the Business and Professions Code. That statute declares procuring or aiding or attempting to procure a criminal abortion constitutes unprofessional conduct. The State Board of Medical Examiners tried the issues created by such accusation and appellant’s “notice of defense” (Gov. Code, §11506), convicted him and made an or...
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By an interlocutory decree of divorce entered in favor of plaintiff on December 1, 1950, it was ordered that defendant pay to plaintiff for her support $65 per month. It provided further that “commencing November 30, 1950, and continuing thereafter for the period of one year only, excepting that plaintiff may request the Court to continue support payments for a longer period of time for sufficient...
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Appellant was convicted on 23 counts of grand theft. He now demands a reversal of the judgments on the grounds of insufficiency of the evidence to support the verdicts, and errors in giving and in refusing certain instructions. *288 Sufficiency o-f the Evidence In April, 1947, appellant was a salesman of used cars. He met certain engineers of an aircraft company and requested them to redesi...
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This is an original proceeding in certiorari to review an order of the superior court adjudging James G. Bryant, as Director of the Department of Employment of the State of California, not to be in contempt. To understand the questions involved a review of the litigation between the parties is necessary. On June 22, 1944, petitioner commenced an action to recover a refund of unemployment taxes pai...
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Margaret Fama died on June 14, 1950. She had been married twice and was survived by nine children : six by the first marriage and three by the second. She left a will dated August 3, 1949, in which she devised her entire estate to a daughter of her first marriage, to wit: Mary Kanter. By a later will dated February 23, 1950, she left her entire estate to her two youngest sons, Tony John and Josep...
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Plaintiff, a minor, brought an action through his guardian ad litem to recover damages for personal injuries resulting from an assault by the defendant. The defense to the action was that the assault was committed by defendant in defense of himself, his son, and his home. The trial court, hearing the cause without a jury, gave judgment for the plaintiff for $2,500 damages, from which judgment d...
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Plaintiff, Dolores Ramirez, testified that on several occasions she had had sexual intercourse with defendant, Jess Romero; that she consented to it upon his promise to marry her; that she had never had intercourse with any other men; that when she told Jess she was pregnant he said, ‘ ‘ Get rid of the baby or do something. ’ ’ When she told him she would not do that, he told her he would call ...
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Plaintiff has appealed from a judgment entered after a demurrer was sustained to his amended complaint upon the stated ground that his cause of action was barred by the provisions of subdivision 1 of section 339 of the Code of Civil Procedure. Plaintiff alleged that on December 3, 1947, he entered into a contract for the purchase of certain real property from *322 William and James P. Bianchi...
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112 Cal.App.2d 324 (1952) THE PEOPLE, Respondent, v. ROY J. BECKER, Appellant. Crim. No. 4741. California Court of Appeals. Second Dist., Div. One. July 21, 1952. S. V. O. Prichard for Appellant. Edmund G. Brown, Attorney General, Dan Kaufmann, Deputy Attorney General, S. Ernest Roll, District Attorney, Marcus R. Brandler and Thomas F. Finnerty, Jr., Deputy District Attorneys, for Respondent...
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On July 11, 1946 the district attorney of Los Angeles County filed an information wherein defendant was accused in two counts of the crime of robbery. It was further alleged that at the time of the commission of said offenses defendant was armed with a deadly weapon, to wit, an automatic pistol. The information further charged' that prior to the commission of the aforesaid offenses defendant ha...
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In an information filed by the district attorney of Los Angeles County defendant was accused of the crime of burglary, in that he entered the home of Donald Calundan at Walnut Park, in the county of Los Angeles, with the intent to commit theft. Following the entry of his plea of not guilty a jury found defendant guilty of burglary and found the offense to be burglary of the second degree. Defenda...
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Defendant, Dan Knox, and his lady friend registered at a rooming house in Watts. While there they were arrested for resorting and taken to jail. Before the room was rented to defendant it had been cleaned and the linen changed. It was not rented again that night. The next morning the landlady again cleaned the room and changed the linen. When she shook out the pillowcase a gun fell out—a little bl...
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Defendant appeals from an interlocutory decree of divorce granted plaintiff upon the ground of cruelty. Defendant in her opening brief states: “At the time of trial Appellant, whose original counsel had departed this planetary hunk of matter known as the Earth, elected to represent herself.” This statement, although literally accurate, is misleading. The record discloses that on April 5, 1950, Wil...
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From a judgment in favor of plaintiff after trial before the court in an action to recover damages for breach of a contract to sell a food market, defendant appeals. Defendant’s sole contention is that the findings are not supported by the evidence. This proposition is devoid of merit. The findings and judgment based thereon must be affirmed if there is any substantial evidence in support thereof....
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Defendant was convicted after trial before a jury on three counts of grand theft. From the judgment and order denying his motion for new trial, he appeals. Defendant does not question the sufficiency of the evidence to sustain the finding of guilty on each count but claims that the court erred in (a) giving the jury an instruction on the subject of embezzlement, 1 and (b) refusing to instruct...
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Action, under the provisions of the Federal Housing and Rent Act, to recover alleged overcharges paid as rental for residential property. Plaintiff appeals from the judgment for defendant. On July 12, 1948, the plaintiff and defendant entered into a written lease whereby plaintiff leased from defendant a nine-room furnished dwelling house at 10734 Lindbrook *354A.venue, Los Angeles, for 18 months,...
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Richard J. Norton and Mary S. Norton were married August 16, 1941. Two children were born of the marriage: Michael, now about 9 years old, and Genevieve, now about 4 years. Mr. and Mrs. Norton were divorced, by an interlocutory decree August 9, 1949, and by a final decree August 18, 1950. By the interlocutory decree the mother was awarded custody of both children. But, in September, 1949, one mont...
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Petitioner, a plastering contractor, seeks a review and annulment of respondent Industrial Accident Commission’s award of increased compensation to respondent employee, Robinson. The award was based upon a finding that the injury was caused by the serious and wilful misconduct of the employer. Charles D. Robinson, while employed by petitioner as a plasterer at Stockton, California, on Febr...
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Plaintiffs appeal from a judgment entered in favor of defendant in an action for damages for personal injuries received in an automobile accident. The collision occurred at the intersection of Hermosa and Anita Streets, public highways in the county of San Diego. Both streets are surfaced with oil and gravel and at the time of the accident there were no stop signs at the intersection and neither s...
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In this shareholders’ derivative suit instituted by preferred shareholders the ultimate question presented is whether the trial court erred in holding, upon the facts adduced, that section 834 of the Corporations Code was applicable and as a consequence that the plaintiffs were under a duty to deposit security for litigation expenses in favor of the defendants I. M. Weinstein, Harold Larson, and ...
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Petition for writ of mandate directing the superior court to correct a finding made by it in an action for the forfeiture of an automobile. It was alleged in the petition that: On May 11, 1950, an action was commenced by the People of the State of California *382 against one 1949 Ford V-8 Conpé, pursuant to sections 11610, 11611, 11612 and 11613 of the Health and Safety Code (relating to seiz...
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This is an appeal by plaintiff from a judgment and order denying a new trial in an action to quiet title against the executor of the estate of Arthur H. Kelly, the appellant’s deceased father. The order is not appeal-able. (Estate of Dopkins, 34 Cal.2d 568, 569 [212 P.2d 886]; Fay v. Norquist, 60 Cal.App.2d 218, 219 [140 P.2d 141].) Plaintiff’s claim to title is based upon a gift deed to ...
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Mildred Ripling and William J. Ripling seek a peremptory writ prohibiting respondent court from proceeding without a jury in the case of Norton v. Ripling (L. A. Super. Ct. No. 556274). It is not questioned that prohibition is a proper remedy. On February 25, 1949, Richard Norton, as guardian of the estate of Thomas J. Norton, incompetent, filed an action against Mild...
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On October 31,1945, Edwin J. DePMarmol was convicted in the Superior Court of Los Angeles County of burglary; in December, 1951, he filed in said court a petition for writ of error coram nobis; the sole ground was claimed insufficiency of the evidence; the petition was denied and Del’Marmol appealed from the order. The appeal is without merit. Since the claim of insufficiency of the evidence could...
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Defendant, having pleaded guilty to burglary which the court found to be of the second degree, made application for probation. The application was denied and he was referred to the Youth Authority. On January 8, 1952, the court committed defendant to the Youth Authority for the term prescribed by law, and remanded him to the sheriff to be held in custody under the jurisdiction of the Youth Author...
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Appeal from an order denying a petition for a writ of error coram nobis. The sole ground of the petition was that petitioner was persuaded to enter a plea of guilty to forgery with a prior conviction, by the representation of his counsel that he would receive a light sentence, and that he received instead a sentence to state prison. No claim was asserted that any peace officer, the district attorn...
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In January, 1950, appellant contracted with respondent for the latter to insert certain advertising script in its Los Angeles Classified Telephone Directory. The contract contemplated a 1-inch advertisement under the title “Detective Agencies” and appellant’s name listed in bold *417 face type. The listing and the advertisement were to commence with the next succeeding issue of res...
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Southwestern Development Company, a corporation, appeals from an order adding its name as a judgment debtor to a final judgment previously rendered against the initial defendant, L. C. Roney, Inc., a corporation. In July, 1949, plaintiff commenced an action against defendant L. C. Roney, Inc., and others for the recovery of money arising out of certain business transactions dating from Jul...
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Appellant was accused by information of violating section 337a, subdivisions 2 and 4, of the Penal Code, by keeping a store with books, papers, and paraphernalia for the purpose of recording and registering bets upon the result of a trial and contest of skill, speed and power of endurance between horses and in the second count thereof by registering bets. The case was submitted upon the record mad...
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Plaintiff appeals from a judgment rendered upon the issues raised in the second cause of action in a complaint to recover money allegedly due plaintiff under the terms of contracts in which plaintiff agreed to construct certain buildings on real property in El Centro and to build and complete sewers, roads, curbs and paving in connection therewith. It was alleged in the first cause of acti...
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The judgment herein ordered dissolution of the Los Angeles Social Center, Inc., formerly known as the Townsend Social Center, Inc., a nonprofit membership corporation. Incorporated in 1945, the articles of incorporation recite as purposes of incorporation, the “mutual improvement of its members for social and educational purposes”; and to “acquire and maintain a clubhouse or clubrooms and to take...
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By his petition of April 12, 1948, the plaintiff Wilson sought a writ of certiorari to annul an eligible list promulgated on November 25, 1947, as the result of an examination theretofore held for the position of county clerk of Los Angeles County. On October 5, 1948, the trial court ruled in favor of petitioner Wilson and issued a peremptory writ of mandate requiring defendant commission to ca...
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Plaintiff is an attorney at law. He sued defendant for $2,046.75 for legal services. Defendant denied the claim and cross-complained for $9,665.80 for professional malpractice of plaintiff. Much of the background of this case is to be found in the reported decisions in McMahon v. Superior Court, 29 Cal.2d 515 [175 P.2d 817]; Estate of Merrill, 29 Cal.2d 520 [175 P.2d 819]; Estate of Merril...
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Plaintiff commenced an action to recover for certain equipment and dredging supplies delivered to and used by a gold mining dredge operated in Trinity County. The action was against defendants individually and also against defendants doing business as Crescent Gold Dredging Company, a copartnership. Plaintiff’s complaint contained three causes of action. The first was for the reasonable value o...
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The defendant was charged in Count I with the murder of Richard Cook; in Count II with the murder of Doris Cook; in Count III with the kidnaping of Doris Cook; in Count IV with assault with intent to commit rape on Doris Cook; in Count V with assault with a deadly weapon upon James Hicks; in Count VI with the kidnaping of Betty Maund; and in Count VII with the rape of Betty Maund. It was also all...
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Defendant was charged with the crime of forgery in raising the amount of a check payable to her in the amount of $74.63 to $174.63. She waived a jury trial and was convicted by the court. Probation was denied. She was sentenced to six months in the county jail. Three months of that sentence was suspended. Between May 1, 1950, and March, 1951, defendant was employed as a bookkeeper for a San Ber...
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In an information filed by the District Attorney of Los Angeles County defendant was charged with the crime of kidnapping his estranged wife Zelda, while he was armed with an automatic pistol. Following the entry of a plea of not guilty, trial by jury resulted in a verdict finding defendant guilty as charged in the information and also finding that at the time of the commission of the offense c...
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Defendant Werwee was convicted in a jury trial of forcible rape and attempted violation of section 288a, Penal Code. His motion for a new trial was denied. Proceedings for imposition of sentence were suspended and defendant was placed on probation. He appeals from the order denying his motion for a new trial. The sole ground of appeal is that after the cause was submitted and while it was under...
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Iowa Manufacturing Company, hereinafter called Iowa Company, on January 18, 1952, filed in this court a verified petition for a writ of prohibition to enjoin the Superior Court of Sacramento County from proceeding further in an action brought by the American River Sand and Gravel Company, hereinafter called American Company, against petitioner and others, petitioner alleging that said action wa...
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The instant action was commenced in December, 1933, upon seven promissory installment notes, each having a separate maker, the payee of all of the notes being California Cooperative Producers, a corporation, which had contracted with the various note makers, and others, to can and process crops of cling peaches to be grown by the various note makers. The respondents are transferee of the seven in...
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Upon this appeal from a judgment for plaintiff in a suit upon a claim against the estate of Leland M. Woods, deceased, the sole question presented is the sufficiency of the evidence to support the findings of the trial court before whom the cause was heard without a jury. The substance of plaintiff’s complaint was that plaintiff advanced sums of money to the deceased to enable him to purch...
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Action to recover $10,000 for services rendered as a real estate broker. Judgment was for defendant, and plaintiff appeals therefrom. On October 28, 1949, the defendant and Safeway Stores, Incorporated, entered into a written agreement entitled ‘ ‘ Sales Deposit Receipt,” which recited that defendant had received $100 from Safeway Stores as a deposit on and part payment for certain real propert...
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Back in 1945 plaintiff, Mrs. Dulcie Pike, owned a Ford automobile. Defendant, Patricia Rhinehart, owned a Buick. Mrs. Pike lived in Los Angeles; Mrs. Rhine-hart lived in San Francisco. While Mrs. Rhinehart, her husband, and her son were visiting in Los Angeles the Buick was wrecked. It was in a garage to be repaired, but was not in shape to be driven. The Rhineharts needed immediate transportat...
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This appeal presents the question whether the equal protection clause of the Fourteenth Amendment of the Constitution of the United States forbids the maintenance in a state court of an action for damages for the alleged breach of a covenant prohibiting the use or occupancy of real property by non-Caucasians. Defendant’s demurrer to the complaint was sustained without leave to amend. Plaintiffs...
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On November 3, 1947, Sam and Harriet Zimberoff, being the owners of an undivided interest in real property, executed and filed of record a declaration of homestead; July 6, 1948, the defendant bank caused to be levied on the property an attachment in an action against Zimberoff and wife; November 29, 1950, Zimberoff and wife brought the present action to quiet title; December 27, 1950, they sold ...
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This controversy arises out of a dispute between plaintiffs and defendant concerning title to a certain placer mining claim located on the Feather River in Butte County. In 1942 plaintiffs instituted an action against defendant to quiet title to and recover possession of the claim in question, together with damages for trespass thereon. Defendant likewise sought to have its title quieted. Upon ...
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On May 26, 1952, respondent filed in this court a notice of motion to dismiss the appeal of Helen Matthews Smith. Said notice was accompanied by a certificate of the clerk of the Superior Court of. Sonoma County dated March 25, 1952, in which it was set forth that notice of. appeal to this court was filed October 27, 1951; that notice to prepare the clerk’s and reporter’s transcripts was filed Nov...
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This is an action to compel the defendant to remove certain installations used in connection with her motel property at Olancha. In 1938, one J. F. Saner acquired title to 30 acres of land in the Southwest Quarter of the Northwest Quarter of Section 18-19-37, M. D. B. & M. This land is some 300 feet westerly from Highway 395 and for many years a road has run from that land to the highway, crossing...
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Defendants were convicted of a conspiracy to violate section 337a of the Penal Code and each subdivision thereof. They have appealed from the judgment and from the order denying their motion for a new trial on the grounds of the insufficiency of the evidence and errors of law in certain rulings that occurred during the trial. The evidence established that Chaiken and Weisbart were proprietors o...
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W. W. Carr and Thelma C. Carr, husband and wife, brought this action against Robert William Holtslander and others for damages resulting from a collision between an automobile driven by Mr. Carr, in which Mrs. Carr also was riding, and a car driven by defendant Holtslander. Mr. Carr departed this life before the trial and Mrs. Carr was substituted in his stead as administratrix of his estate. In ...
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Appeal from an order denying the motion of defendants Imperial Cattle Company, a corporation, and Adolph Weinberg, for an order changing the place of trial of the action from Los Angeles County to Imperial County. The principal office of Imperial Cattle Company is in Imperial County. Weinberg is a resident of Los Angeles County. The remaining defendants reside outside Los Angeles County. T...
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Appellant, Myrtle F. Day, was a defendant in an ¿ction involving real property. She filed a cross-complaint alleging grounds for the appointment of a receiver, and upon her application respondent R. E. Allen was appointed receiver and thereafter duly qualified and acted as such. His first account and report as receiver was filed and approved. Thereafter, appellant Day, with court permission, su...
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Plaintiffs, who are husband and wife, brought this action against the administrator of the estate of M. B. Finley, deceased, charging that decedent Finley had so negligently operated a motor vehicle as to cause it to collide with two riding horses on which plaintiffs were mounted and as a result plaintiff Gordon Smith was thrown to the ground, sustaining personal injuries, and one of the horses w...
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112 Cal. App. 2d 602 (1952) THE PEOPLE, Respondent, v. SIDNEY KROSS, Appellant. Crim. No. 4771. California Court of Appeals. Second Dist., Div. Two. Aug. 8, 1952. Morris Lavine and Edward R. Brand for Appellant. Edmund G. Brown, Attorney General, and Stanford D. Herlick, Deputy Attorney General, for Respondent. FOX, J. Defendant was charged with two counts of grand theft and two counts of ...
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Defendant was charged by information with violation of subsections 1, 2, 3 and 4 of Penal Code, section 337a. Before trial, on motion of defendant, the counts as to subsection 1 (bookmaking) and 3 (receiving, holding, or forwarding money or memoranda referring to money bet) were dismissed on motion for insufficiency of evidence under section 995, Penal Code. The cause was submitted on the transcr...
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Plaintiffs appeal from a judgment entered after .demurrers had been sustained to their fourth amended complaint. Apparently convinced that a cause of *623 action had been stated and that the special demurrers interposed were not well taken, their counsel, during the argument when the demurrers were heard, suggested to the trial court that if the demurrers were sustained again no leave to amend ...
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George W. Robinson, an inmate of Folsom State Prison, has filed in this court a petition for the issuance of a writ of habeas corpus, alleging that he is illegally restrained of his liberty by the warden of said prison in that the said warden refuses to allow him to forward for filing a petition for a writ of mandate addressed to the District Court of Appeal for the First Appellate District, but ...
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Edward Donald Malone, an inmate of Folsom State Prison, has filed in this court a petition for the issuance of a writ of habeas corpus, alleging that he is illegally restrained of his rights and liberty by the warden of said prison in that said warden refuses to allow him to forward for filing a Petition for a Writ of Quo Warranto addressed to this court, but instead has referred said petition to...
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Annie Cochems died testate on August 28, 1950, leaving six children surviving her. One son, Paul Leopold Cochems, predeceased her. *635 By her last will duly admitted to probate herein, she bequeathed her estate to the six surviving children, naming them. No mention was made of her predeceased son, nor of his three living children: Paul Charles Cochems, Mary Martha Cochems and Josephine Crosi...
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The judgment herein refused probate to a will of the decedent, Ida Teed, executed on January 25, 1949, -on the -ground of' mental, incompetency. The. decedent, a *640 maiden lady aged about 93 years, died on January 31, 1949. The trial court found that there was no undue influence and no fraud. The appellant Helen Hough is a grandniece of Miss Teeed; appellant Mabel Croy...
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This is an appeal from the judgment. Defendant was charged by information in two counts with issuing checks without sufficient funds. It was also alleged that defendant had been convicted twice before of a similar offense and had served a term therefor in the state prison. The trial was by the court' without a jury. The issue was by stipulation submitted on the preliminary examination transcript. ...
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This is /an appeal from a summary-judgment entered on of the respondents who were the defendants in the action/ The relief asked by appellant’s complaint was the specifi/ enforcement of what appellant alleged was an agreement/for the sale to him by respondents of certain real property. His complaint averred that on June 5, 1950, respondents “agreed to sell” to him the subject property by a writ...
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In this action, tried without a jury, respondent Anthony Ventimiglia, a hoy of 9, was awarded $15,000 for personal injuries, and his mother was awarded *659 $390 for his medical and nursing care and treatment. A new trial was denied and this appeal was taken. On Sunday, February 15, 1948, about 7 p. m. a Plymouth automobile owned and driven by John Ventimiglia, and a Mercury automobile owned ...
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This is an action to have a contract declared null and void, and to restrain the respondent city and its officers from paying out any city funds in connection therewith. General demurrers to the complaint were sustained without leave to amend, and the plaintiff has appealed from the judgment which followed. The admitted facts are as follows. The appellant is a taxpayer in Santa Ana, a city of the ...
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Appellant was charged by information with the violation of the Dangerous Weapons Control Law of 1923 and in a separate information appellant was jointly charged with one Howard Jensen in two counts. In count one defendants were accused of grand theft, and in count two with a violation of section 503 of the Vehicle Code. It was further alleged that each defendant had been previously convicted of a ...
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As recited in respondent’s brief, in three separate informations, “appellant was charged with a violation of the Dangerous Weapons Control Law; one count of grand theft and one count of a violation of Vehicle Code, Section 503, both in connection with the taking of an automobile; and a charge of escape from jail. In each information it was also alleged that appellant had suffered a prior felony co...
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Defendant pleaded guilty to violation of Penal Code, section 288,—misconduct with a 5-year-old girl. Also he admitted a prior felony conviction of burglary and grand theft, for which he served a term of imprisonment. After taking his plea, the superior court suspended further proceedings, adjudged defendant a sexual psychopath, and committed him to a state hospital. (Welf. & Inst. Code, di...
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112 Cal. App. 2d 676 (1952) WILLIAM G. HAY et al., Appellants, v. DELMER E. ALLEN et al., Respondents. Civ. No. 8088. California Court of Appeals. Third Dist. Aug. 14, 1952. Spurr & Brunner for Appellants. Kasch & Cook for Respondents. PEEK, J. This is an appeal from an adverse judgment rendered in a quiet title action instituted by plaintiffs. The situation out of which this liti...
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This is an appeal from a judgment in favor of plaintiff arising out of the assignment of a conditional sales contract by defendant to plaintiff. By its complaint plaintiff and respondent (referred to hereinafter as the finance company) alleged as follows: That on March 31, 1947, defendant and appellant (hereinafter referred to as the tractor company) transferred to the finance company a documen...
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Joseph and Philip DiMaria, brothers and partners in the practice of law, brought this action against Tom Mitchell and his wife to recover $6,652 attorneys’ fees, it being alleged that as to certain of the services rendered there was an agreed fee, while as to the balance there was no express agreement and the reasonable value of such services is sought. The answer alleges full payment for all ser...
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Plaintiff brought this action against the defendants, alleging two causes of action'; one, for $1,026 as compensation for services rendered at the agreed rate of $400 a month, and the other, for $2,000 as the reasonable value of services rendered at the request of the defendants. Upon the conclusion of plaintiff’s case in chief, the defendants moved for and the court granted a nonsuit as to each o...
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In this action, brought under the Federal Employers’ Liability Act, the widow of James J. McGuigan seeks to recover damages for his wrongful death alleged to have been caused in interstate commerce by the negligence of the defendant employer, the Southern Pacific Company. At the conclusion of plaintiff’s case, the trial court granted a nonsuit. Plaintiff appeals. *706 The facts mo...
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Plaintiff, as an employee of the city and county of San Francisco, brought this action on his own behalf and on behalf of some 7,835 other employees similarly situated, to have it determined that the salary standardization ordinance passed by the board of supervisors in 1950 was improperly submitted to a referendum. At that referendum the ordinance was rejected by the voters. The action seeks a...
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The California Department of Mental Hygiene petitioned the probate court for an order directing the guardian to pay expenses incurred for care, support and maintenance of the incompetent at the Stockton State Hospital. Prom an order requiring him to do so, the guardian appeals. Question Presented Can the estate of an incompetent be held liable for care at a state hospital furnished to an incompete...
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112 Cal. App. 2d 739 (1952) VAN FLEET-DURKEE, INCORPORATED (a Corporation), Respondent, v. A. J. OYSTER, Appellant. Civ. No. 15170. California Court of Appeals. First Dist., Div. One. Aug. 18, 1952. Alden Ames for Appellant. Frederick M. Fisk, W. Burleigh Pattee, H. P. Livermore and Chickering & Gregory for Respondent. PETERS, P. J. Plaintiff, Van Fleet-Durkee, Incorporated, as payee o...
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Plaintiff, Louise Stone, brought this action against defendant Ethel Lobsien, to have the title to certain real property quieted and to have it .determined that defendant, the record title holder, holds such title in trust for plaintiff. The trial court found that there was a resulting trust, and entered its judgment accordingly. Defendant appeals. At the time of the events here involved, the p...
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The action herein is for an accounting under a license agreement whereby plaintiff, the owner of certain letters patent on safety pins, granted to the defendants, Charles P. Sakin and Leo L. Sehaumer, “the exclusive' right to manufacture, cause to be manufactured, sell, cause to sell, distribute and cause to be distributed, said safety pin containing said patented improvement, and any and all impr...
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Defendant was charged by information with the violation of the Dangerous Weapons Control Law. The information alleged that defendant, having been convicted of certain felonies, had “in his possession and under his control” a .38 caliber revolver. The issue was, by stipulation, submitted on the transcript of the preliminary hearing. No evidence was offered for the defense. Defendant was adjudged gu...
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In August, 1945, defendant pleaded guilty to robbery and grand theft as charged in an amended information filed in the Superior Court of Fresno County. He admitted six prior felony convictions set forth in the information and was sentenced to the state’s prison as an habitual criminal. On December 28, 1951, defendant filed a petition for a writ of error coram nobis in the superior court above n...
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Appellant, with one Leonard Cruz, was charged in an information with the crime of robbery. It was also charged that Cruz was armed with a deadly weapon and that he had been previously convicted of first degree burglary. Appellant Deveny was charged with three previous felony convictions: Violation of the Dyer and Mann Acts, forgery and escape from state prison. Appellant denied the first prior co...
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112 Cal. App. 2d 771 (1952) GILBERT SONBERGH, Appellant, v. HAVEN MacQUARRIE, Respondent. Civ. No. 18965. California Court of Appeals. Second Dist., Div. One. Aug. 19, 1952. Lawrence William Steinberg for Appellant. Jerome J. Mayo for Respondent. DRAPEAU, J. By his complaint of August 9, 1951, plaintiff sought recovery of damages for severe personal injuries which he alleged he sustained a...
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This is a petition for a writ of supersedeas to restrain the sale of certain real property, pursuant to an order of sale included in a judgment, pending the appeal from that judgment. The appellant having failed to comply with section 945 of the Code of Civil Procedure, and no sufficient reason having been shown why a stay was not perfected in accordance therewith, the petition must be denied. (Gu...
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Defendant has appealed from a judgment awarding plaintiff $10,000 as the reasonable value of his services in preparing for defendant a wage and bonus incentive plan covering the work of all of its employees in the several departments of its textile plant. The only issues presented by defendant upon this appeal pertain to the sufficiency of the evidence to support the findings of fact. The trial co...
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In an action brought in San Francisco, the court denied defendant’s motion for change of venue to Los Angeles, the county of defendant’s residence. Defendant appeals. Questions Presented (1) Is an action for dissolution of a partnership and an accounting one founded on a contract within the meaning of section 395 of the Code of Civil Procedure? (2) Does that section apply where there is no sh...
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Plaintiffs commenced an action upon a common count for labor and materials furnished to defendants. Judgment was rendered in favor of plaintiffs against defendant Peardon for $810.20 and against defendant McCue for $22. Defendant Peardon has appealed from the judgment. Appellant, Peardon, is the owner of a building located on Third and Oak Streets, Marysville, California. McCue, the codefendant...
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112 Cal.App.2d 797 (1952) THE PEOPLE, Respondent, v. VITO GERUNDO, Appellant. Crim. No. 2306. California Court of Appeals. Third Dist. Aug. 23, 1952. Vito Gerundo, in pro. per., for Appellant. Edmund G. Brown, Attorney General, Doris H. Maier and Wallace G. Colthurst, Deputy Attorneys General, for Respondent. *799 ADAMS, P. J. Defendant was charged with and convicted by a jury of theft of ...
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Plaintiff has appealed from an order granting a new trial, in an action for personal injuries sustained by plaintiff while riding as a passenger in an automobile, caused by a head-on collision with an automobile driven by the defendant, in the middle lane of a three-lane highway. *809 The new trial was granted on the ground of insufficiency of . the evidence to justify the verdict. “An order ...
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Plaintiff sued for a balance of $12,108.70, claimed to be owing for work done and labor and materials supplied in the repairing and overhauling of two fishing boats owned by defendants. Judgment on the findings was entered for $8,793.97, interest and costs, from which defendants appeal. The work extended over a period of about a year and involved eight distinct jobs on the “Mary LaRocca” and the “...
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The plaintiffs were injured in a collision with a motor vehicle operated by defendant Durrington. More than a year after the collision plaintiffs brought this *822 action for damages joining with defendant Durrington his insurance carrier. This was predicated on allegations that defendants were barred from pleading the statute of limitations because of representations of a settlement without su...
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Appellant filed his notice of appeal herein on November 2, 1951. On August 8, 1951, appellant was adjudicated a bankrupt in the United States District Court. Although appellant according to his verified application for relief from default “requested and demanded of the Trustee in Bankruptcy to proceed with the appeal herein . . . said Trustee refused and failed to proceed with and has abandoned sa...
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Petitioner seeks a writ of mandate ordering the dismissal of an action in conversion commenced on August 11, 1944. He relies on section 583, Code of Civil Procedure. Respondent defends on the ground that other litigation relating to some phases of the conversion action excuses his delay. No service of process having been made the defendant Neustadt, on July 19, 1946 (almost two years after complai...
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Defendant was tried to a jury on two counts—one charging a violation of section 11500 Health and Safety Code—possession of narcotics, the other charging transportation of same. The second count was dismissed on motion. A conviction was had on the first count and the appeal is from the judgment and from the order denying the motion for a new trial. The appeal rests solely on the question of the suf...
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Defendant was tried to a jury on four counts—three charging burglary and one charging an attempt to commit burglary. He was convicted on all four counts. His appeal is from the judgments. Proof was made that the three dwellings had been entered in the night time as alleged in the first three counts and that the occupant of the fourth dwelling observed a man’s arms and shoulders partly through her ...
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Following the filing of the original opinion of this court defendant company petitioned for a rehearing, which was granted. The contentions of appellant in support thereof are that the court “omitted from and/or incorrectly stated” material facts in the opinion, and that there was a failure to “specifically consider” certain issues raised. Counsel then concludes the petition with a statement th...
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This is an action for declaratory relief to test the validity of an ordinance of the city of Vallejo which awarded an exclusive garbage disposal contract to defendant Vallejo Garbage Service, and to determine the rights of the individual parties under a contract providing for garbage disposal on dividing territory between them. Plaintiff also sought an alternative judgment against the individua...
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112 Cal. App. 2d 859 (1952) TRIMBLE DE ROODE, Individually and as Executor, etc., Appellant, v. THE COUNTY OF PLACER, Respondent. Civ. No. 8145. California Court of Appeals. Third Dist. Aug. 25, 1952. Albert L. Johnson for Appellant. A. B. Broyer, District Attorney, for Respondent. SCHOTTKY, J. pro tem. This is an appeal from an order dismissing an action for failure to bring it to trial w...
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On October' 8, 1951, an information was filed in Napa County in four separate counts. The first charged that defendant, in Napa County, on or about May 1, 1950, did “wilfully, unlawfully, fradulently and felonously make, forge and counterfeit a certain .check and order in writing for the payment of money, and did then and there utter, publish and pass the same, knowing that said check was false...
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The defendant was charged with burglary and with rape. A jury found him guilty of burglary of the first degree, and of assault with intent to commit rape. He has appealed from an order denying his motion for a new trial and from the judgment. The complaining witness, Mrs. Mustin, lived at the intersection of two roads about ten miles west of Lemoore. Her husband was employed as an' irrigator in a ...
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112 Cal. App. 2d 876 (1952) JOHN M. KNOLL et al., Appellants, v. CHARLES SCHLEUSSNER et al., Respondents. Civ. No. 18970. California Court of Appeals. Second Dist., Div. One. Aug. 27, 1952. Richard A. Haley for Appellants. Miller, Vandegrift & Middleton for Respondents. DRAPEAU, J. By the instant action in usury, plaintiffs sought treble damages and injunctive relief. Their complaint a...
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The plaintiff has appealed from a judgment on the pleadings rendered in an action to recover damages for fraud. On May 16, 1949, appellant Morris entered into a written contract with respondents Harbor Boat Building Company, and Dair N. Long and Associates, for the purchase of a “Hareo 40 Cruiser” with certain special equipment, the total purchase price being $30,215, which was paid by Morris t...
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112 Cal. App. 2d 890 (1952) INA R. GOULD, Appellant, v. EXECUTIVE POWER OF THE STATE, Respondent. Civ. No. 4295. California Court of Appeals. Fourth Dist. Aug. 28, 1952. Ina R. Gould, in pro. per., Caryl Warner and Tom Sherrard for Appellant. Edmund G. Brown, Attorney General, and Norman H. Sokolow, Deputy Attorney General, for Respondent. MUSSELL, J. Plaintiff appeals from a judgment and ...
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The facts and issues in these proceedings are similar to those involved in John Breuner Co. v. Superior Court, Civ. No. 15287, ante, p. 304 [246 P.2d 694] this day decided. For the reasons therein stated the orders are affirmed. Petitioners’ application for a hearing by the Supreme Court was denied September 18, 1952. Schauer, J., was of the opinion that the petition should be granted....
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The district attorney of the county of Fresno filed an appeal from an order of the Municipal Court of the Fresno Judicial District sustaining defendant’s demurrer to a complaint charging a misdemeanor, to wit: Violation of section 647a (1) of the Penal Code. The order sustaining the demurrer was duly entered on the docket. Although no formal dismissal of the action was thereafter ordered, the Peop...
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On the evening of May 12, 1952, two adjoining houses in South Pasadena were ransacked by a burglar, one at 175 Monterey Road, the other at 167 Monterey Road. Mr. and Mrs. Henze, who lived at 175 Monterey Road, were visiting neighbors across the street. Mrs. Henze went home about 9 o’clock to put her baby to bed. When she opened her front door a man who had been inside her house dashed past her ...
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This is an appeal from the judgment and order denying a motion for a new trial. *6Defendant was charged by information with the violation of section 337(a) of the Penal Code, which declares the law relating to “bookmaking” in that defendant did wilfully, etc., “record and register a bet and bets . . . upon the result . . .” etc., following the language of the statute. A jury was duly waived and fo...
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Defendant appeals from a judgment entered upon a verdict convicting him of forcible rape, and from an order denying his motion for a new trial. He admitted to the arresting officers and as a witness an act of intercourse, but steadfastly insisted it was with the consent of the prosecutrix. He does not question the sufficiency of the evidence to justify the verdict. It is therefore unnecessary to r...
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Defendant was convicted .by a jury of having sold ,to Deputy Sheriff Grimes 15 marijuana cigarettes in violation .of section 11500 of the Health and Safety Code. He appeals from the ensuing judgment and the order denying his motion for a new trial. Defendant bases his appeal upon the alleged misconduct of the prosecuting attorney. The particular incident occurred during: the cross-examination o...
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Appellant was convicted in a jury trial of robbery in the second degree and attempted robbery. Upon trial of his plea of not guilty by reason of insanity to a jury he was found sane. He was also found to have suffered a prior conviction for which he had served a term in prison. He made a motion for a new trial, which was denied and he appeals from the judgment and order. Upon application of app...
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This is an appeal by plaintiff from the judgment and order denying her claim as a pretermitted heir of Frank Talmage and decreeing final distribution of the estate. The decedent had five children, four of whom survived him. The fifth, Frank Talmage, Jr., predeceased his father and left surviving him one child, Joan Talmage McGowan, the appellant herein. Through her guardian ad litem Joan filed obj...
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In an action for specific performance of a contract for sale of real property, judgment went for defendants. Plaintiff appeals. *27 Questions Pbesbnted 1. Was the description of the real property indefinite? 2. If so, was it so indefinite as to exclude the admission of parol evidence? Pacts Defendant Ernest Lorentz, Sr., agreed to sell and plaintiff to buy certain r...
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114 Cal. App. 2d 35 (1952) LEONARD L. GREENWELL, as Executor, etc., Appellant, v. SAMUEL CARO et al., Respondents. Civ. No. 15307. California Court of Appeals. First Dist., Div. One. Nov. 3, 1952. Myrick & Deering & Scott for Appellant. Keith, Creede & Sedgwick and Cavan Hardy for Respondents. WOOD (Fred B.), J. This is an appeal from an order vacating the default of defendants...
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Plaintiff commenced an action against defendants upon a promissory note executed by defendants in favor of plaintiff’s assignor. Defendants Elmer Ráy Ingersoll and Emma Ingersoll, his wife, were copartners doing business under the firm name and style of Ingersoll Lumber Company. On May 10,1949, at Marysville, California, defendants gave plaintiff’s assignors, Arthur D. Mervin and Rebecca Mervin, h...
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Appellants, as successors in interest of Eldon L. Cleveland, commenced an action to enjoin respondent, State Box Company, from cutting and removing timber from Section 27, T. 18 N., R. 11 E., in Nevada County, and to quiet appellants’ title to said timber. Respondent filed an answer denying that appellants had any right to said timber and also filed a cross-complaint in *45 wh...
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Defendant was charged with grand theft of $1,800 from Arthur A. Matthews. In a trial by jury he was found guilty. Proceedings were suspended and probation was granted. He appeals from the order granting probation. (See Pen. Code, § 1237, subd. 1.) Appellant contends that the verdict is against the evidence and the law; that the court erred in giving and failing to give certain instructions; and...
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The state brought this action in eminent domain to condemn some 22 parcels of property required in connection with certain highway construction. Parcel 22 was *62 owned by Carl B. Mellor., On August 30, 1945, Mellor had leased the property to Archibek for 10 years, with an option for an additional 10 years. Archibek erected a drive-in restaurant on the property, and on January 17, 1947, subleas...
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Plaintiff brought this action against his daughter and her husband, alleging that in July, 1948, he conveyed two parcels of real property and assigned a trust deed note to her as collateral security for loans to him aggregating “about $10,000,” which he alleged had been repaid to her out of the proceeds from the collateral. Plaintiff demanded a reconveyance of the property and an accounting. De...
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The city of Long Beach and certain of its officers appeal from a judgment based upon findings of a jury upon special interrogatories. The action was in mandate to compel the city and its officers to grant a pension to petitioner, widow of a police officer of the city. The jury answered affirmatively the questions (1) whether Mr. Wight received any injury or contracted any sickness as a result of t...
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Appeal by plaintiff from a judgment for defendants entered on a directed verdict in an action for damages for personal injuries. Viewing the evidence and the reasonable inferences to be drawn therefrom in the light most favorable to plaintiff, the facts are these. Brown Drilling Company was the owner of oil field equipment which it wanted moved from Los Angeles County to Sacramento Co...
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114 Cal. App. 2d 82 (1952) Estate of MICHAEL JAMES WALSH, a Minor. EDITH JAEGER, as Guardian, etc., Respondent, v. BERTHA I. WALSH, Appellant. Civ. No. 19048. California Court of Appeals. Second Dist., Div. Three. Nov. 7, 1952. Joseph Scott, J. Howard Ziemann and John R. Kent for Appellant. Reynolds, Painter & Cherniss for Respondent. SHINN, P. J. Bertha I. Walsh appeals from an order ...
Views: 2
Plaintiff sues for damages for trespass upon his land and for an injunction. He appeals from a judgment for defendant. Plaintiff owned a parcel, we shall call “A,” 145 feet wide and more than 900 feet in length. Defendant owned “B” immediately east of “A.” Plaintiff owned parcel “C” immediately east of “B.” Both parties were desirous of subdividing their respective parcels. They entered in...
Views: 2
This case was here before. (Howard v. General Petroleum, Corp., 108 Cal.App.2d 25 [238 P.2d 145].) On the former appeal, it appeared that after all the evidence of the parties was in, the court had rendered a judgment of nonsuit instead of making findings of fact. We reversed the judgment of nonsuit with directions to the trial court to make findings and conclusions of law, and to render judg...
Views: 5
Patrick King and Jack Scott were jointly charged with armed robbery and armed burglary. The robbery charge was later dismissed. After a lengthy second jury trial, the first jury having disagreed, both defendants were found guilty of first degree burglary. Both appeal. Both defendants were represented by counsel at the trial, but both appealed in propria persona. Defendant King subsequently secure...
Views: 13
On December 7, 1948, plaintiff filed her second action for divorce subsequent to an agreement for reconciliation and division of the community property. The interlocutory judgment in that action was filed December 14, 3950. Plaintiff was awarded a divorce on the ground of extreme cruelty; custody of the three minor children; $200 per month for their support. The property agreement was approved; th...
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114 Cal. App. 2d 110 (1952) RANDAL CREWS DUNNING, a Minor, etc., et al., Plaintiffs; VIRGINIA CREWS DUNNING, Respondent, v. CARROLL DODGE DUNNING, Appellant. Civ. No. 18993. California Court of Appeals. Second Dist., Div. One. Nov. 10, 1952. Covey & Covey and William Solomon for Appellant. John L. Mace for Respondent. *111 WHITE, P. J. Plaintiff and respondent brought an action to reco...
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This is an appeal by the city and the chief of the electrical division of the Department of Building and Safety, from a judgment granting an injunction against the enforcement of city ordinance No.-94073, requiring state-licensed electrical contractors to pay a fee of $100 per year, and to post a surety bond conditioned on compliance with the local law, as a condition precedent to the issuance ...
Views: 11
Defendant appeals from that portion of an interlocutory judgment of divorce, entered upon his default, whereby defendant was ordered to pay to the plaintiff wife $15 per week “for her support.” The respondent wife has made no appearance in this court by brief or otherwise. By her complaint the wife alleged that the defendant had been guilty of extreme cruelty; that there were no children of the...
Views: 0
114 Cal. App. 2d 122 (1952) SUSUMU IGAUYE, Respondent, v. FRED HOWARD, Appellant. Civ. No. 18935. California Court of Appeals. Second Dist., Div. Three. Nov. 10, 1952. A. Brigham Rose for Appellant. Knight, Gitelson, Ashton & Hagenbaugh and Leon J. Alexander for Respondent. VALLEE, J. Appeal by defendant, Fred Howard, from a judgment for plaintiff in an action for damages for wrongful ...
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Appeal by plaintiff from a judgment for defendant entered on a verdict of a jury in an action for damages for personal injuries. *129Plaintiff, a motorcycle officer, in pursuit of a suspected traffic violator, in broad daylight, was northbound on his motorcycle on Lankershim Boulevard in Los Angeles. Defendant, southbound in an automobile, was making a left turn "at the intersection of Oxnard Stre...
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Defendant appeals from the judgment rendered upon his conviction of possessing heroin in violation of section 11500 of the Health and Safety Code, and from the order denying his motion for new trial. He claims (1) the evidence was insufficient to show possession by the defendant because (a) proof that he knew of the existence of this substance, or of the package in which it was found, is lackin...
Views: 6
This is an appeal by plaintiff from a judgment entered in favor of the defendant R. A. Boyett, doing business as R. A. Boyett Automobile Finance, in an action wherein plaintiff sought to recover from the respondent and others the sum of $3,900. The defendants other than the respondent suffered their defaults to be entered and judgment thereon was entered against them, which has since become fin...
Views: 2
Forrest M. Hammett brought an action for personal injuries sustained in a collision between the automobile in which he was riding and a Pontiac automobile operated by Lucille M. McIntyre and owned by the defendant J. B. McIntyre. It was charged that Lucille M. McIntyre was operating the Pontiac automobile with the consent of the owner, J. B. McIntyre. The law firm of Parker, Stan- . bury, Reese...
Views: 11
The complaint herein, for declaratory relief, was filed by plaintiffs as members of the defendant International Union of Operating Engineers and Local Union No. 12, both unincorporated associations. The dispute and controversy concern certain new by-laws which plaintiffs claim are invalid “because of express violations of the basic Constitution in their contents, and by reason of the invalid meth...
Views: 8
In this action for personal injuries allegedly resulting from a collision between the motor vehicles of the respective parties, plaintiff appeals from a judgment in her favor entered upon a verdict of the jury in the sum of $100. As grounds for reversal appellant contends (1) that the judgment is not supported by the evidence in that the damages awarded were inadequate and not commensurate...
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This is an appeal by the defendant wife from an interlocutory judgment of divorce granted upon the grounds of desertion and extreme cruelty. It is contended that plaintiff’s testimony is not corroborated as required by section 130 of the Civil Code; that the trial court erred *178 in excluding from evidence the record of a previous divorce action which had been brought by the plaintiff and dism...
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114 Cal. App. 2d 181 (1952) Estate of GRACE GLASSFORD, Deceased. ESTELLE G. DIBBLE et al., Respondents, v. BEN H. BROWN, as Public Administrator, Appellant. Civ. No. 19154. California Court of Appeals. Second Dist., Div. Two. Nov. 12, 1952. Harold W. Kennedy, County Counsel, and Baldo M. Kristovich, Deputy County Counsel, for Appellant. Gibson, Dunn & Crutcher, Richard E. Davis and Frank...
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Defendant Chamberlain and his codefendant Elkington were convicted by a jury of the crime of violating section 288a of the Penal Code. Chamberlain was granted conditional probation. He appeals from an order denying his motion for new trial and argues (1) that the evidence is insufficient to support the verdict; and (2) that the court erred in refusing to give a requested instruction. The evidence ...
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114 Cal. App. 2d 195 (1952) THE PEOPLE, Respondent, v. MANLEY HATTON, Appellant. Crim. No. 2867 First Dist., Div. California Court of Appeals. Two. Nov. 13, 1952. Joseph A. Garry for Appellant. Edmund G. Brown, Attorney General, Clarence A. Linn, Assistant Attorney General, and Wallace G. Colthurst, Deputy Attorney General, for Respondent. JONES, J. pro tem. Appellant was convicted of a vi...
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Plaintiff brought this action for damages for the loss of an eye alleged to have been caused by the negligence of defendants. The jury, by a 10 to 2 vote, brought in a verdict for defendants. Plaintiff appeals from the judg *200 ment and from the order denying his motion for a new trial. In civil cases the order denying a motion for a new trial is not independently appealable, bnt ...
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This is an appeal from an order increasing the amount to be paid by appellant to his former wife for the support of their two minor children. Appellant’s principal contention is that the court lacked jurisdiction to make the order. *212 That portion of the order pertinent to the appeal reads: “It is hereby ordered, adjudged and decreed, that the following order contained in the interlocutor...
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This is an appeal from an order denying an application for a temporary injunction. Appellant and respondent entered into an agreement of lease wherein appellant is lessor and respondent lessee. Respondent bound itself as lessee to operate the property as a quarry, to install certain equipment therein, to pay the lessor 7% cents per ton for all rock removed, to sell to lessor all crusher base rock...
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Two police officers in a patrol car came up behind defendant Emery Charles Newsom’s car. It was dark, in the early morning hours after midnight. The officers threw their red light upon defendant and he pulled over to the curb. He had a passenger riding in the front seat with him, Ben R. Lawson, Jr. The two men got out of their car. The officers searched it and found 19 marijuana cigarettes...
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Defendant appeals from a judgment dissolving a limited partnership and decreeing that its assets be sold and distributed in equal shares to the partners after payment of partnership liabilities and expenses of sale. By written articles on December 28, 1943, the parties agreed to engage in the partnership for the purpose of buying and selling alcoholic beverages, catering and sale of food a...
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Appellant Isabel Espinosa entered respondent hospital under contract to receive obstetric care and services at the birth of her baby. On the third day thereafter respondents delivered to Isabel an infant purporting to be her own. Appellants took such child to their home and cared for it until their discovery that it was the offspring of others. On making known their grievance to respondents, th...
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Defendant appeals from an order entered pursuant to Code of Civil Procedure, section 473, vacating a judgment in his favor. Respondent commenced this claim and delivery action on March 19, 1948, to recover certain Baby Do-nut machines and electric motors then in defendant’s possession. Bond was posted in the sum of $4,000 whereupon respondent took immediate possession of the property and remove...
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This is an action brought by sellers for the balance due on a sales contract. Contending the products delivered were of such poor quality as to be useless the buyer-defendant counterclaimed and also filed a cross-complaint seeking damages. Judgment was entered for plaintiffs for the balance due and against defendant on the cross-complaint. Defendant appeals. The sole question presented on ...
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Plaintiff brought this action against defendants to recover a deficiency judgment on a promissory note secured by a chattel mortgage after private sale of the security. Defendants appeal on the judgment roll alone. In their five-page opening brief appellants urge that there was a prior foreclosure action, which was later dismissed, and contend that the bringing of such action, under sectio...
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Plaintiff brought contempt proceedings against defendant for alleged failure to comply with the provisions of an interlocutory divorce entered in 1940, and a final decree entered in 1941. While cross-appeals were filed from the whole of the court’s "Order Fixing Amount of Moneys Payable by Defendant Under Property Settlement Agreement and Decrees of Divorce,” each party is questioning only certai...
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Plaintiff brought this action for a declaration of her rights under an agreement, partly oral and partly written, with her aunt, Adaline Hoge, a widow, referred to as defendant. The alleged agreement was a promise by defendant that if plaintiff would come from New York State and live in the home of defendant, keep house, cook, care for and look after said Adaline Hoge and her then husband, Willia...
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This is a contest of a will before probate. The respondents filed a contest to a will dated July 18, 1949. A jury found that the deceased was of unsound mind at the time the will was executed. A judgment denying admission of the will to probate was filed on January 12, 1951, and entered on the same day. The proponents moved for a judgment notwithstanding the verdict and for a new trial, which mot...
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This is an appeal by plaintiff from a judgment in favor of defendants in an action instituted by plaintiff to recover a real estate broker’s commission alleged to be due him from defendants by reason of their failure to perform a written agreement between the parties. *272 Although, three contentions are made they are not separately stated bnt are treated as one: that the evidence...
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This is an action for damages for breach of an oral lease. At the outset of the trial an objection to the introduction of any evidence was sustained on the ground that no cause of action was stated. A judgment of dismissal was then entered, from which the plaintiffs have appealed. *276The amended complaint alleges that the defendants owned a hotel, apartment and store building in Palm Springs; tha...
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The defendant was charged with grand theft in taking certain money from the Bank of America. In a separate information, he was charged with grand theft in taking certain money from the Security-First National Bank of Los Angeles. In each information he was also charged with- a prior felony conviction in Oregon, for forgery, resulting in a term of imprisonment in the Oregon State penitentiary. In ...
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This appeal is from a judgment for $5,115.47 and interest, in an accounting suit arising out of a partnership between the litigants, which existed from April 1, 1945, to July 5, 1946. *284 Both parties were experienced fire insurance adjusters who had been engaged in that work in San Francisco for many years. On February 17, 1944, they made a contract wherein respondent agree...
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Defendant Alysse Wyatt Allen appeals from a judgment quieting title to certain real property in plaintiffs and declaring void certain restrictions and right of reentry which defendant claimed she was entitled to enforce. The basic facts are undisputed. The property involved was deeded on January 6, 1908, by Mrs. Alice Latham and her husband to William L. Deysher. In the deed the property—w...
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This is a motion to recall remittitur. In an action wherein movants as plaintiffs sought to have declared the respective rights and obligations of the parties to a written contract, a judgment was rendered adverse to their contentions and from that judgment they appealed. The matter of the appeal was referred to this court and our decision appears in 107 Cal.App.2d 436 [237 P.2d 338]. Therein w...
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Petitioner appeals from a judgment dismissing her petition for writ of mandate by which she sought to compel the defendant city of Long Beach, the members of its city council and other administrative officers to grant her a widow’s pension under the provisions of section 187 (4) of the city charter. Appellant alleges that she was married to Henry W. English on December 12, 1940; that there...
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This is an action for damages based on the failure of the defendant to return land, buildings and equipment in good condition as required by the terms of a written lease. The complaint alleged damages in the amount of $2,000, without specifying what they were. A demurrer was filed. An amended complaint was then filed which alleged damages in the sum of $3,054.70, including specified items amountin...
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These actions, bearing superior court numbers 52621 and 52412 respectively, were consolidated for the purpose of trial and on appeal. For convenience, the Lobdells will be referred to as plaintiffs, and William B. Miller and Frank 0 ’Farrell as defendants. On a motion to dismiss the appeal, these actions were before this court for consideration. (Miller v. Lobdell, 109 Cal...
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Plaintiff was a captain with permanent civil service status in the fire department of the city of Berkeley. June 14, 1949, he was dismissed by the city manager without a hearing and was given written notice of dismissal. He petitioned for a writ of mandamus claiming that he was entitled to a hearing prior to dismissal and that the notice of dismissal did not adequately state the reasons fo...
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Appeal by John P. Galvin individually and as executor from a portion of an order of the probate court, sustaining an objection to the executor’s first and final account and petition for distribution. The effect of the portion of the order appealed from is to require the executor to inventory and account for certain real property claimed by appellant individually and which the court found belongs t...
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At the time of the filing of the complaint in this action for damages for breach of a contract and for ‘damage to his credit rating and business reputation,” claimed due under the first count, and for money claimed to be due under the second count, upon an account stated, plaintiff’s residence and principal place of business was in the county of San Bernardino. The individual defendants lived i...
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Plaintiff husband filed an action for divorce against defendant wife, alleging cruelty. He particularly alleged that there was no community property and so testified at the hearing. After an amendment by interlineation by the court, as hereinafter indicated, the complaint recited that the minor child, aged about two years, “. . . is now in the custody of the defendant and: that is and view...
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Plaintiff appeals from a judgment in favor of defendant, in an action for overtime pay, liquidated damages and attorney’s fees, brought under the federal Pair Labor Standards Act of 1938. (52 Stats. 1060, 29 U.S.C.A. §§ 201-219.) Questions Presented Primarily: (1) Was plaintiff engaged in working on, or in any process necessary to the production of, goods for interstate commerce? (2) If so, can hi...
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Plaintiffs, who are husband and wife, sued in a single cause of action for unlawful eviction and conversion of certain personal property. The court, sitting without a jury, found that plaintiffs had been wrongfully evicted and awarded them as damages therefor $892.50. The court also found that there had been no conversion of their personal property. Plaintiffs and defendant have both appealed f...
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This is an appeal on the judgment roll alone from a judgment for damages for the conversion of an automobile. The second amended complaint contains the following allegations: “That . . . defendants . . . offered to subscribers to the Associated Bulletin, during its circulation drive, for a con *390 sideration of One ($1.00) Dollar paid for a six months subscription thereto, delivery of the As...
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Plaintiff brought an action for malicious prosecution against defendant as administrator of the estate of Harry Lasky, deceased. A demurrer to the amended complaint was sustained without leave to amend and from the judgment which followed this appeal was taken. The amended complaint alleges that Lasky died on September 21, 1949, and that defendant was appointed administrator of his estate ...
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Appeal from a judgment on a single question of law: did defendants in transporting plaintiff and other school children in a taxicab, commonly used as a common carrier, owe plaintiff the duty of exercising the highest degree of care for her safety or merely ordinary care? The Long Beach Unified School District had in attendance at its schools a number of physically and mentally handicapped ...
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Having been convicted on seven counts 1 of grand theft, appellant now demands a reversal on the grounds of insufficiency of the evidence, errors in rulings on the admissibility of evidence and errors in rejecting offered instructions. In the spring of 1951 there was a scarcity of newsprint on the Pacific Coast. Its price had soared to $250 a ton. Appellant was publisher of certain neighborhoo...
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While he was a member of the Los Angeles Board of Education appellant was indicted on three counts, each accusing him of having an unlawful interest in a contract executed by the board. Count I alleged a contract between the board and the Jack and Jill Ice Cream *418 Company, a partnership herein referred to as Jack and Jill, and that it was contrary to the provisions of section 10...
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Prior to August 1, 1946, Weston P. Kreck and C. W. Kreck conducted as copartners a wholesale and retail hardware business under the name of Ideal Hardware and Supply Company. On that date the partnership was dissolved. The partnership had conducted a wholesale business at one location and a retail business at another. Weston F. Kreck acquired the wholesale division and C. W. Kreck the retail divi...
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Original proceeding in certiorari in which petitioner seeks a review and annulment in part of a judgment adjudging petitioner in contempt. On November 1, 1950, a judgment was entered which enjoined petitioner from selling, offering or advertising for sale, any Sunbeam commodity at prices less than the prices then stipulated in Sunbeam Corporation’s fair trade contract. The fair trade contract was ...
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Respondent, Mary M. Harris, aged 25 years, while employed as a saleslady by the Goodwill Industries of San Bernardino and Riverside Counties, Inc., on December 12, 1949, at San Bernardino, fell from a short stepladder, landing in a sitting position and striking her right hip. The Fidelity and Casualty Company of New York was the employer’s compensation insurance carrier at the time the accident...
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Plaintiffs, as the owners and lessors of business property, brought this action in unlawful detainer and for damages against defendant as the subtenant in possession, and against others not involved on this appeal. Defendant defaulted and judgment was entered decreeing restitution awarding $1,559.52 as treble damages for the unlawful detention computed at $650 per month and fixing $64.98 a day as...
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This is an appeal by Gladys King as administratrix with the will annexed of the estate of George W. King, deceased, from an order settling the first ac'eount and report of the executors in the above named estate which was made following an order dismissing appellant’s objections thereto. The question presented is whether appellant is a “person interested in the estate” within the meaning of Probat...
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Plaintiff, a building contractor, sued for $19,354.38 for money advanced and services rendered at defendants’ special instance and request, in the construction of a building in San Jose. Defendants pleaded that plaintiff had contracted to construct a building for $22,490 according to certain plans and specifications but had failed to do so. They also filed a cross-complaint for $30,000, of whic...
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Defendants, husband and wife, appeal from a judgment rendered by the court in a trial without a jury for personal injuries incurred by plaintiff in an encounter with a dog owned by defendants. The complaint charged that the dog was “of a ferocious, vicious and mischievous disposition and accustomed to attack persons and possessed of traits making said dog dangerous to persons, all of which was ...
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Plaintiffs petitioned the superior court for a writ of mandate, directing the Real Estate Commissioner of this state to restore to them their license as real estate brokers. On the commissioner’s hearing counsel for the commissioner introduced in evidence findings of fact and judgment in a civil action for fraud against petitioners in the superior court, and rested. The facts so found were that...
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Both of these appeals arise out of the same action and have been consolidated for decision by this court. The appeal in No. 19170 is from orders denying (1) motion to set aside a default; and (2) motion to permit inspection of documents. The appeal in No. 19271 is from the judgment entered subsequent to the default. The record on appeal is incomplete in that the pleadings are not...
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From a judgment in favor of plaintiffs in an action to establish a resulting trust in certain real property, hereinafter known as the Beverly Hills property, defendant appeals. Facts: On or about January 27, 1934, Hermann Beinssen purchased a piece of real property, having the title thereto placed in the name of his friends, Agnes Schiffbauer and her husband, Dr. H. E. Schiffbauer. The entire...
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This is an action to recover damages alleged to have been suffered by plaintiff in relying upon fraudulent representations made to her by defendants in connection with the sale of real property in Palm Springs. The representations *505 were that one of the lots involved (Lot 38) could be improved with multiple dwellings and used and occupied for income purposes, when the same was, in fact, rest...
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This is an action to cancel a contract of sale of real property in Orange County, all documents in connection therewith, and for a judgment in the sums paid by plaintiff on the purchase price and in caring for the property. Judgment was entered in favor of defendant and plaintiff appeals. On May 5, 1947, plaintiff and defendants entered into a written escrow agreement in which plaintiff ag...
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Plaintiffs and appellants commenced an action against defendants for damages for the death of the occupants of an automobile which, on September 4, 1943, went off the Topanga Canyon Road, also known as State Highway Route 156, in the city of Los Angeles, fell to the bottom of the canyon and burned. The complaint alleged a dangerous, unsafe and defective condition in the highway, consisting of a...
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Plaintiffs and appellants began action to quiet title to certain real property located within the boundaries of the area served by the Happy Valley Water Company, a public utility corporation in Shasta County. The complaint was in the usual form. It alleged ownership in the plaintiffs, claims of interest on the part of the defendant and that such claims were without right. Defendant and responden...
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This is a proceeding in prohibition. On. May 23, 1951, a child was born in the State of Washington to an unwed mother who, within a few days after the birth of the infant, executed a consent to its adoption by Clifford L. and Estelle Grove, residents of California. The consent was executed in accordance with the laws of Washington, but not in accordance with the laws of California. Mr. and Mrs. G...
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This is an appeal from an order vacating a prior order approving a final account and decreeing distribution, and from an order requiring the executor to account for certain assets. The appellant Abrahams and Prank H. Love are attorneys sharing an office in Los Angeles, and frequently associated in legal matters. Over a period of many years they had *535 represented Mr. and Mrs. Hamaker, who l...
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The three actions against defendant Capiti arose out of a collision between an automobile driven by Capiti, an automobile driven by a Mr. Lamb, and one driven by plaintiff Victor A. Lopez, Jr. The collision first occurred between the Capiti vehicle and the Lamb vehicle. Lamb was killed. Plaintiff Edge, a passenger in the Lamb car, was injured. Thereafter, Capiti’s vehicle collided with plaintiff L...
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This is an action for divorce on the ground of cruelty. The complaint listed three parcels of real property as being the community property of the parties and, among other things, prayed for one-half of that property and for such other and further relief as the court might deem proper. The defendant filed an answer and cross-complaint in which he denied the existence of any community property, an...
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Plaintiff and defendants own adjoining parcels of real property in East Ben Lomond, in Santa Cruz County. Defendants constructed certain structures that encroached on plaintiff’s land. Plaintiff brought this action for a mandatory injunction to compel removal of the encroachments, for damages for their maintenance, and damages for diversion of water onto plaintiff’s land caused by the encroachmen...
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Defendants Burns and DeCosta were accused of burglary, committed by entering an automobile, the doors of which were locked. Burns admitted an allegation in the information that he had been convicted previously of a felony. In a trial by jury the defendants were found guilty of burglary in the second degree. Burns was referred to the California Youth Authority. DeCosta’s application for probation ...
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On August 18, 1950, judgment was entered in favor of plaintiff for $13,717 and costs. It contains the following provision: “Interest on said sum of $13,717 at the rate of 7% per annum from November 4, 1946 to the date hereof in the sum of $3,637.51 is denied.” Defendant appealed from the judgment as a whole. Plaintiff appealed from the part just quoted disallowing interest. This is the sec...
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Appellants, Alvin Eugene Curley and Gilbert Snider, were charged by information on five counts for robbery. They were tried by a jury, acquitted as to the first count and found guilty on the remaining four. Appellants filed separate notices of appeal from the order denying their motion for a new trial and from the judgments. Counsel appearing for each defendant did not conduct the trial. Both wer...
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Plaintiff appeals from (1) an order granting defendants’ motion for a nonsuit, and (2) the judgment predicated upon the order. Facts: This cause has previously been before the Supreme Court on appeal in Stock v. Meek, 35 Cal.2d 809 [221 P.2d 232], and the facts are thus stated in that opinion beginning at page 811: “Plaintiff brought this action to rescind...
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Plaintiff filed this action against the executrices of his late wife’s estate alleging that one half of all the properties comprising the estate belonged to him as his share of the community property. The total appraised value of the *590 estate was $364,382.54. Plaintiff appeals from the judgment that there was no community property. Plaintiff and the decedent were twice marr...
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Plaintiffs appeal from a judgment in favor of defendants predicated upon the sustaining of their demurrers without leave to amend in an action to recover damages for wrongful death. Fads: Plaintiffs brought an action for wrongful death of their son, shot by a Los Angeles reserve police officer while on patrol duty, against the city of Los Angeles, Chief Parker *604 as Chief of the Los Angel...
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This is an appeal by defendant from a judgment convicting him of certain violations of the Agricultural Code and from an order denying .his motion for a new trial. The information was in two counts. Count One charged a violation of section 1269 of the Agricultural Code, in that defendant, in Glenn County, knowingly employed an agent, one Dunkle, without causing said agent to comply with the lic...
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Plaintiffs allegedly sustained injuries and property damage on February 2, 1947, which they claimed were caused by the negligence of the defendant Greyhound Lines, Inc. and its driver, Oscar LeRoy Perkins. Defendants’ demurrer to the complaint, setting up the statute of limitations (Code Civ. Proc., § 340, subd. 3) as a bar to the complaint, was sustained with leave to amend. An amended co...
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In an information filed August 15, 1951, defendant was charged with violating section 11715 of the Health and Safety Code in three counts. In count I defendant was accused of such violation on or about June 4, 1945, in that he unlawfully issued a prescription bearing a forged and fictitious signature for a narcotic. It is further alleged that defendant was absent from and not an inhabitant of, no...
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Martha Trimble, plaintiff, cross-defendant and respondent, brought this action to partition certain real property and crops growing thereon. A. B. Coffman, defendant, cross-complainant and appellant, filed an answer denying plaintiff’s claimed title, and a cross-complaint seeking to cancel a deed to plaintiff, executed by his joint tenant, and alleged it was procured without consideration, by und...
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This case involves an orange crop agreement. The plaintiff, an elderly woman, had for many years marketed her fruit through a consignment contract with the American Fruit Company. Because of frost damage this company advised her to sell her 1949 crop for cash instead of marketing it in the usual manner. She contacted the Granada Packing House, operated by the defendant, and was told that they wer...
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This is an action to recover damages for injuries sustained on account of the alleged negligence of the defendant. The trial court found that the defendant was not negligent, and judgment was entered accordingly. From this judgment the plaintiff has appealed. On the date of the accident appellant was riding as a passenger on a municipally owned bus operated by the defendant. The route of the bus w...
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Defendant appeals from an order of the Superior Court of the City and County of San Francisco, denying his motion for a change of venue to San Joaquin County, the county of his residence. The complaint alleges that plaintiff’s assignor, the American Bulb Growers of California, Inc., a corporation, at San Francisco entered into an agreement with the defendant by the terms of which defendant was to...
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Pursuant to rule 12 of Rules on Appeal, respondent makes application for correction of a claimed omission in the reporter’s transcript on appeal. In the affidavit supporting the application respondent’s counsel avers that he did not check the instructions as reported in the reporter’s transcript “word by word” until appellant in her opening brief claimed error in an instruction as set forth in the...
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Rene Pailhe, one of the heirs of the decedent, has appealed from an order directing Alfred Pailhe, as administrator, to pay the latter’s attorneys, respondents Matthew ICoppel and James G. Flaherty, $1,000 on account of fees for extraordinary services rendered by them in a certain action brought by the administrator against Rene, and to pay the official reporter $124.80 for the transcript on ap...
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Defendant Herman Berns owned an office building and adjacent parking area in San Jose which was leased to the State Department of Motor Vehicles. The department had sublet a portion of the building to the California Highway Patrol. The lease provided that “The lessor shall . . . maintain the demised premises in good repair and tenantable condition during the continuance of this lease.” ...
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This is an appeal by Daniel J. Diaz, individually and as guardian of the estate of Arturo S. Diaz, a minor, from an order confirming the sale of a parcel of real property belonging to the above named estate. *675The hearing upon the petition for confirmation and the objections thereto filed by the appellant was conducted in a most informal manner. The only witness produced upon the hearing was the...
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Defendants Frankfort and Nudelman were convicted, by the court sitting without a jury, of 68 counts of grand theft and one count of conspiracy to commit grand theft, and were sentenced to the penitentiary. They appeal from the judgment and the order denying their motion for a new trial. * This prosecution arose out of defendants’ participation in a club and subdivision project in w...
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Plaintiff and respondent sought to condemn several parcels of real property for the use of San Diego State College. Defendant and appellant Cape Cottage Homes, Inc., was the owner of parcel 3, whose expert witnesses appraised it between $50,000 and $72,000, and respondent’s witnesses between $35,000 and $37,500. After five days of trial the jury fixed the value at $37,500. The sole point raised on...
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In this action, commenced on October 13, 1949, to foreclose two trust deeds and crop mortgages, defendants M. A. Fleming, Josie Bell Fleming and James M. Fleming filed an answer and cross-complaint in which they claimed treble damages because of alleged usury. This answer and cross-complaint was superseded by an answer and counterclaim in which counterclaim usury was charged and treble damages ...
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On October 3, 1949, defendant John O’Con-nor, alias John Nelson, was charged with forging a check on September 4, 1947, in Imperial County, and entered a plea of guilty. When arraigned, the public defender was appointed to represent him. After a hearing on a presentence report of the probation officer, defendant, on October 4, 1949, was committed to the state’s prison. No motion for new trial was...
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This is an action arising out of a collision between two automobiles on Highway 101 near San Rafael in Marin County. One car was owned and driven by the respondent, Scott, and the other was owned by Leon Grant. At the time of the accident the Grant car was being driven by Melvin Lee Grant, son of the owner, and with his father’s permission. Miss Goodin, later Mrs. MeCamey, was riding as a passeng...
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This is an appeal by defendant from an order granting plaintiff’s motion for a new trial. In her complaint the plaintiff, a pedestrian, alleged that she was injured when the defendant so negligently operated his automobile as to cause it to collide with her at an intersection in the city of San Jose. The defendant denied negligence and set up the affirmative defense of contributory negligence. ...
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Appellant was a limited tenure police patrolman appointed under the provisions of section 145.1 of the charter of the city and county of San Fran *740 cisco. He applied to the Retirement Board of San Francisco for a pension on the ground of disability alleged to have resulted from an injury incurred in the performance of duty. His application was denied. Thereafter an application w...
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This is an appeal by a contestant (hereinafter referred to as appellant) from an order granting a new trial on the grounds of insufficiency of the evidence after a jury returned a verdict in favor of appellant setting aside a will of Idell Elliot, deceased, on the grounds of (1) unsoundness of mind of the testatrix and (2) that decedent was motivated by undue influence at the time she executed th...
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Defendant appeals from a judgment against it in the sum of $17,650 for rent and attorney’s fees under a written lease. Contentions op the Parties No attack is made on the sufficiency of the evidence to support the findings and judgment, if parol evidence was admissible. Plaintiff contended and the trial court found that paragraph 33 of the lease was ambiguous and uncertain,...
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Petitioner was sued for divorce, and an accounting of properties, his wife alleging among other things as cruelty that he fraudulently obtained a Nevada divorce decree from her. By an order of April 21, 1950, the court ordered-petitioner to pay $150 monthly for support, $300 on account of counsel fees and $20 on account of costs, after petitioner had withdrawn his objection to the jurisdiction of...
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The defendant was convicted of burglary and robbery. He appeals from the judgment of conviction and from an order denying his motion for new trial. On June 3, 1948, shortly before midnight two men entered a building of the Pacific Telephone and Telegraph Company in San Jose. While these men were engaged in taking money from a safe two janitors employed by the company entered the room and were c...
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I dissent. In my opinion the document in question is not a “security.” Defendants and appellants’ petition for a hearing by the Supreme Court was denied February 10, 1953. Schauer, J., was of the opinion that the petition should be granted....
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Plaintiff and respondent brought this action upon an open book account to recover a balance due for money loaned from time to time to defendant and appellant. Appellant denied the allegations of indebtedness and as an affirmative defense alleged that the relations between himself and respondent had been that of joint adventurers, with nothing remaining due from" either to the other. The court foun...
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This is an appeal by the administrator of the Estate of C. Sancha, deceased, from the judgment entered in favor of respondent, Helen Knight Sancha. Her action was brought to enforce specific performance of an oral contract entered into in May, 1926. Concerning that contract and the relations of the parties thereafter, the trial court made the following findings: On May 1,1926, in Reno, Nevada, ...
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This is a proceeding to review a decision of the respondent Industrial Accident Commission denying an application for adjustment of claim. Petitioner Dobson, while in the employ of Edgar H. Holton, was injured in a collision between an automobile he was driving and another vehicle. His application was denied by the respondent commission upon the ground that the injury was caused solely and proxim...
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By information Charles R. Medley and Donald E. Bonfiglio were charged with possession of marihuana in violation of Health and Safety Code, section 11500. After trial to the court, the cause being submitted on the transcript of the preliminary hearing, and neither defendant testifying, defendant was found guilty as charged while defendant Bonfiglio was found not guilty. Defendant was denied probati...
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Action to recover treble damages claimed under Federal Housing and Rent Act of 1947. Plaintiffs and appellants, husband and wife, alleged in 12 separate causes of action that beginning October 18, 1949, they rented an apartment owned by defendants and respondents for a period of 12 months and paid rental therefor at the rate of $100 per month, when in fact the maximum rental for such housing accom...
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This is an action to foreclose a mechanic’s lien and to recover judgment for the purchase price of three “sink” units installed in premises owned by the defendants in Costa Mesa. Defendants appeal from the judgment and decree of foreclosure. The defendants employed a contractor to remodel their house and garage into four apartments. The contractor agreed to install certain kitchen units si...
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This is an action by a broker to recover a commission on a sale of real estate. A general demurrer to his complaint was sustained without leave to amend and he appeals from the judgment entered accordingly. It is conceded that no further cause of action can be stated by amendment. The complaint contains in evidentiary detail all the facts on which plaintiff bases his right to commission, the co...
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This is an appeal from that portion of an order of the Superior Court of Los Angeles County, sitting in probate, by which the court denied a petition that the entire estate of decedent be set aside to the appellant widow pursuant to the provisions of sections 640 to 646, inclusive, of the Probate Code. By these sections it is provided, in substance, that if the estate of the decedent at the dat...
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Motion to dismiss appeal. Plaintiff and respondent brought action against the defendant and appellant to recover money alleged to be due on a construction contract. Defendant moved for a summary judgment which motion the court heard and denied. From the order denying the motion defendant appealed. Code of Civil Procedure section 963 treats of appeals and, inter alia, provides that an appeal m...
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This is an action brought by an injured employee against her employers as authorized by section 3706 of the Labor Code when the employer fails to secure the payment of workmen’s compensation. The case was tried without a jury. The court found (1) plaintiff was employed by defendants as a domestic and practical nurse for the care of defendants’ infant child at the home of defendants, (2) wh...
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This matter comes before the court on defendant’s appeal from a judgment of conviction of violation of section 140 of the Yehicle Code of the State of California in driving on a public highway, without proper registration, a vehicle required by state law to be registered. The facts shown by the statement on appeal are that defendant, at the time and place alleged in the complaint, caused *832 ...
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114 Cal.App.2d Supp. 834 (1952) CREDIT BUREAU OF SAN DIEGO, INC. (a Corporation), Appellant, v. GEORGE SMALLEN, Respondent. California Court of Appeals. Sept. 19, 1952. Ruel Liggett, Roy M. Cleator and E. C. Davis for Appellant. Ray Miller for Respondent. BURCH, J. Plaintiff sues for $1,781.25 as the unpaid balance of $1,900 loaned to defendant, George Smallen, by plaintiff's assignor, Frank...
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114 Cal.App.2d Supp. 841 (1952) THE PEOPLE, Respondent, v. ROSEMARY AGNEW, Appellant. California Court of Appeals. Nov. 17, 1952. Rosemary Agnew, in pro. per., for Appellant. Ray L. Chesebro, City Attorney (Los Angeles), Donald M. Redwine, Assistant City Attorney, and Philip E. Grey, Deputy City Attorney, for Respondent. [114 Cal.App.2d Supp. 843] BISHOP, J. Because the defendant was brought...
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The municipal court granted a motion made under section 473 of the Code of Civil Procedure, by the defendant, in that court, to set aside an entry of a default and a judgment based thereon, which plaintiff secured on May 9, 1952. This is an appeal from that order. Summarizing the facts of the case, we find that the defendant was personalty served with a copy of the summons and complaint on Apri...
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The minor plaintiff, then 3 years old, was injured in an accident at 3:30 p. m. on February 3, 1950. The accident occurred on a driveway running through a lumberyard owned by Rex E. Gill, the father of the plaintiff. This driveway ran the entire length of the lumberyard prem*560ises in a north and south direction, was some 30 or 35 feet wide, and was used by customers who could enter it either fro...
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Defendant appeals from a judgment for $5,250 damages caused plaintiff by defendant’s holding over after termination of his lease of certain improved real property of the plaintiff. The sole question is the asserted bar of the award of damages to plaintiff by the judgment rendered in an unlawful detainer action brought by plaintiff against this defendant for restitution of this property upon ter...
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In this proceeding for a writ of mandate requiring respondent Thomas A. Toomey, as registrar of voters, to certify petitioner as the newly elected Chairman of the Democratic County Central Committee of San Francisco, judgment was entered in the form of a minute order reading, “Petition for writ of mandate denied. Demurrer and motion to strike denied. Ord: restraining order dissolved.” Petitione...
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Appellant sued for $5,518, damages for bodily injuries. A general and special demurrer to the first amended complaint was sustained with leave to amend, but after notice the plaintiff declined to amend and judgment was entered that he take nothing and that defendants should recover their costs. Plaintiff then appealed. Defendants operate a business wherein they rent and lease to the public me...
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Appellant sued on a writing dated April 4, 1946, claiming a conversion by respondents of $5,000 of his money. He was awarded a judgment for $1,019.33, and after the denial of a new trial took this appeal. Appellant owned three apartment houses in San Francisco, one at 2459 Larkin Street of 12 apartments, one at 626 Pine Street of 30 apartments and a store, and one at 665 Pine Street of 40 ...
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Maud L. Cook was adjudged incompetent in 1948 and one James T. White, a nephew, was appointed guardian of the person and estate. Upon the death of this guardian in 1951 a petition was filed by Ethel P. White and Clarence E. White, the former guardian’s widow and son, seeking appointment as guardians. A citation to show cause why these persons should not be appointed, was duly served on the incompe...
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This is an appeal from the judgment in two actions. Appellant was charged by information with the violation of section 501 of the Vehicle Code and in another information with the offense of issuing a check without sufficient funds in Count I and in Count II with the theft of an automobile. The two causes were consolidated for trial by stipulation. Defendant was adjudged guilty by a jury of all thr...
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Plaintiff was awarded $10,503.77 in an action to recover damages for personal injuries. She claims the award is inadequate. The evidence shows that plaintiff was a passenger on a streetcar operated by defendant on September 13, 1948, at a time when the car, while stopped at a street intersection, was struck from the rear by another streetcar operated by defendant. The force of the impact t...
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From an order dismissing defendant’s second amended cross-complaint after sustaining of a demurrer thereto with leave to amend, of which leave' defendant did not avail itself, defendant appeals. Facts: Defendant filed a second amended cross-complaint in two causes of action,* the first cause of action predicated upon plaintiff’s breach of a contract giving defendant the exclusive right to sell pla...
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From a judgment entered after defendant pleaded guilty to two counts of rape, he appeals. Facts: After entering a plea of not guilty to an information charging him in two counts with rape, defendant, on June 11, 1951, by leave of court withdrew his plea of not guilty to such charges and entered a plea of guilty. At the time defendant entered his plea of guilty to the two charges of rape he waived ...
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This is an action for damages for fraud against defendants Mabel L. Hubbard, Kathleen B. Wirick and Paul C. Wirick, Jessie Northrup and Maurice Gordon. Defendant Gordon demurred to the amended complaint; the demurrer was sustained without leave to amend, the action was dismissed and plaintiff appeals. *607The claim of damages arises out of complicated transactions dating back to March, 1942. The a...
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Plaintiff is the holder of a treasurer’s deed to real property in the city of Los Angeles described in the judgment, which deed was issued December 10, 1948, after foreclosure'of a street bond dated December 27, 1928, issued pursuant to the Improvement Act of 1911. Defendant is the holder of a deed from the State of California dated October 20, 1945, issued following a deed to the state for nonpay...
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Defendant was charged by information with six felonies: (1) Issuing a check without sufficient funds with intent to defraud W. McGann and others; (2) grand theft of an airline ticket from American Airlines, Inc.; (3) issuing a check without sufficient funds with intent to defraud Jack Williams and others; (4) grand theft of another airline ticket from Western Airlines, Inc.; (5) issuing a check w...
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Plaintiffs, Abraham Todd and Ida Mae Todd, husband and wife, brought this action against Roy Standfield and fictitious defendants, alleging that on August 10, 1950, at 7:30 a. m., Standfield so carelessly and *616 negligently drove and operated a certain flatbed truck as to cause same to collide with a Ford sedan automobile driven by Mrs. Todd, causing injuries to her and to the Ford sedan. In ...
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Petitioner filed in this court a petition for a writ of prohibition restraining the Superior Court of Sutter County from taking further proceedings in an action entitled “Hazel Nickola vs. Earl Nickola.’’ There is little, if any, dispute as to the facts. On November 23, 1951, Hazel Nickola filed an action against Earl Niekola in the Superior Court of San Mateo County. On December 7, 1951, d...
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Petitioner has applied to this court pursuant to rule 32, Rules on Appeal, for a stay of execution of a judgment of conviction on a pending appeal and for bail. Conformably to said rule petitioner shows that application for such stay was made to the trial court and was refused; likewise that application for bail was made to the trial court and denied. Petitioner was indicted in Yolo County on char...
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In one action Lillian M. Lloyd, an incompetent person * (by Harold E. Lloyd, her guardian ad litem) and Harold E. Lloyd, her husband, sued the railroad company and five of its employees for personal injuries sustained by Lillian, and for the death of Donald Lloyd their son aged about 4. In another action Bessie A. Lloyd, the mother of Harold, sued the same defendants for p...
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Plaintiff Margaret Murray sued for damages for alleged personal injuries. Plaintiff Martin Murray sued for damages to his automobile. The jury found for defendants on both counts. On motions for new trial the court denied Margaret’s motion and granted Martin’s motion on the ground of insufficiency of the evidence. Plaintiff Margaret appeals from the judgment entered on the verdict against her. De...
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Thomas P. Talle, by indictment, was charged with having murdered his wife, Margaret (Marge) Talle, on December 23, 1949. " He pleaded not guilty. In due course he was tried before a jury and found guilty of murder of the first degree with a recommendation of life imprisonment. His motion for a new trial was denied, and judgment was entered. He appeals from the judgment and from the order denying ...
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Plaintiffs, mother and son, owned two parcels of real property: one in Indiana and the other located on Normandie Avenue in Los Angeles. Mr. Ramey and de *681 fendant Myers had been friends for a number of years. Mr. Myers was a licensed real estate agent and was associated with defendant Buckley, a Los Angeles realtor. In March of 1948, plaintiffs were being evicted and Mr. R...
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Plaintiff brought this action to recover damages for personal injuries sustained as a result of being struck on a highway in the city of Seal Beach by a vehicle driven by defendant. From a judgment of $25,000 entered on a verdict in favor of plaintiff after a jury trial, defendant appeals. The accident occurred on March 10, 1950, at about 6:30 p. m. when darkness was coming on. Plaintiff was cross...
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The defendant was charged with robbery in two counts. The first count related to the robbery of the clerk in a cleaning establishment, and the second was for the robbery of the night clerk in a hotel. The first robbery occurred at 8:30 p. m. on July 27, 1951, and the second about 4:20 a. m. the following morning. The defendant pleaded not guilty, but admitted four prior convictions. A jury found ...
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In an indictment returned by the grand jury of Los Angeles County and an amendment thereto, defendant was accused of the crime of murder. It was also alleged that he suffered a prior conviction of the crime of forgery, a felony, for which he served a term in the state prison. To the charge contained in the indictment as amended, defendant entered pleas of not guilty and not guilty by reason of in...
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California Trust Company, as administrator of the estate of Aloysius P. Hughes (A. P. Hughes), deceased, instituted this action to quiet title to real property in the city of Los Angeles, and for an accounting of income therefrom. Findings and judgment were in favor of plaintiff quieting its title as administrator and awarding it a money judgment against James L. Hughes in the sum of $24,680.34...
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Appeal by defendants from a judgment directing that a writ of mandate issue commanding them to grant petitioner a leave of absence from his former employment with defendant city, referred to as the city, from December 21, 1949, to October 30, 1950, with full salary of $3,616.16, less a credit of $1,165.71, on account of temporary disability payments which he has retained. Defendants also appea...
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Defendant was charged with six offenses of violation of section 337a of the Penal Code. Two of the charged offenses were violations of subdivision 3-of the section which makes it an offense to “receive, hold or forward money” etc., bet on the result of a horse race or purported horse race. Other counts of the information charged violations of other subdivisions of the section consisting of the ac...
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Defendant appeals from a judgment in favor of plaintiffs and from an order denying his motion to vacate that judgment. Questions Presented 1. Sufficiency of the evidence to support the findings. 2. Could Petrikis bind his partner Ellis? 3. What was the effect of defendant’s taking possession? 4. Damages incurred during possession. Facts Plaintiffs, as partners...
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Plaintiff sued for damages arising out of a collision of two auto vehicles in one of which she was a guest rider. She appeals from the verdict for the defendant. The facts are not seriously disputed. Defendant was driving north on Middlefield Road, an arterial highway, on a Sunday of heavy traffic. The driver of the ear in which plaintiff was riding approached the intersection on an east-west cros...
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Plaintiff appeals from an order granting a motion for change of venue from the city and county of San Francisco to San Joaquin County. One Molick as as *746 signee commenced an action in the San Francisco superior court in which a motion for change of venue was granted to San Joaquin County. Molick thereupon dismissed the action and assigned the claim to appellant. Appellant then f...
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The petition herein prays for a peremptory writ of mandate to compel the defendants to grant and pay a widow’s pension under the provisions of section 187 (4) of the charter of the city of Long Beach. Petitioner is the widow of Vertle P. Gilman who died on April 13, 1949. Mr. Gilman became a member of the Long Beach Fire Department on October 1, 1932, and continued in active service until April...
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Plaintiff recovered a jury verdict for $25,-000 against defendant for claimed malpractice. The court granted a new trial upon the ground of insufficiency of the evidence to support the verdict. On May 15, 1942, plaintiff, aged 55, as a result of a 12-foot fall, suffered a very severe comminuted (crushed or shattered) *753 fracture of his right os calcis or heel hone. The injur...
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Defendant H. J. Dowd has appealed from an interlocutory decree which granted the plaintiff Cecilia K. Dowd a divorce upon the grounds of extreme cruelty, awarded her the family home, directed him to sell two other parcels of community property and apply the proceeds in reduction of the indebtedness upon the family home, and ordered him to pay her $50 a month for her support and $25 a month each f...
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The question brought here for determination is whether the relation of master and servant between the parties here involved terminated instantly upon the discharge of the servant on the premises of the employer or whether the relation with respect to any injuries thereafter sustained by the servant continued until he left the premises, even though he did not proceed to leave them as quickly as ...
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Plaintiff Gailen Comstock has appealed from a judgment which determines (1) that he has only a life estate under the terms of a testamentary trust created by his father and (2) that he is not entitled to take from the trustee the properties constituting the corpus of such trust. The language creating the trust is as follows: ‘ ‘ Said real property to be sold when there is a market and the proceeds...
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Howard Mattox, 3 years and 10 months of age, accompanied by his parents attended the theater of appellants on the evening of July 12, 1950. Although the auditorium had been opened at 6 :45 p. m., the trio did not arrive until a few minutes after 7 o’clock. After entering they hesitated for a few moments at the head of the aisle for an usher to serve them. None appearing, they went forward and c...
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The seven appellants were convicted of a conspiracy to violate sections 31 and 32 and subdivisions 1, 2, 4 and 6 of section 337a of the Penal Code. The proceedings were suspended as to McLaughlin and O’Leary; they were placed on probation for a term of years, nine months thereof to be served in the county jail. Judgments were entered for each of the five women to serve a jail sentence of 90 days ...
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Defendant was found guilty on two counts of having committed abortions. From a judgment and order denying his motion for a new trial, he appeals. Facts: The evidence disclosed that Molly Simon died as a result of an induced abortion. Deceased’s sister testified she accompanied her sister to defendant’s office where decedent stated to defendant she was pregnant and did not want to have a baby;...
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Having been accused by information of the district attorney appellant was convicted of three counts of violating section 288 of the Penal Code on his plea of guilty. Thereupon proceedings were suspended and the same official filed his “Petition and Affidavit of Sexual Psychopathy.” In such petition it was alleged that appellant was a sexual psychopath who is affected with mental disease and disor...
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Plaintiff appeals from an order granting a new trial after she had won a verdict and judgment of $15,000 for injuries suffered in a collision of two automobiles. The motion was granted upon the sole ground of insufficiency of the evidence. The collision occurred in the intersection of Third Avenue, a north and south street, and Venice Boulevard, an east and west street. Tracks of the Pacific Bl...
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Defendant was accused in two counts of violating section 496bb of the Penal Code in that he unlawfully bought and received certain property knowing that it had been stolen. The jury found defendant guilty as charged. His application for probation was denied. Judgment was that he be imprisoned in the state prison. The notice of appeal recites'that defendant appeals from the order denying his motio...
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This is an appeal from an order of the Superior Court denying appellant’s motion for change of venue to Los Angeles County. The first of the two counts set forth in plaintiff’s original complaint alleged that on February 6, 1950, he owned certain lands in Mendocino County; that he entered into an agreement with defendant Construction Engineers, Inc., for the sale of the timber thereon, which agree...
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This is an appeal by Thomas B. and Lela Beers, husband and wife, the defendants in intervention from a decree quieting title to the real property in question. in the County of Butte, the plaintiff in intervention. In 1882 John Bidwell, by quitclaim deed, conveyed to the county a narrow parcel of land along the Sacramento River comprising approximately 11% acres. It is bounded by what is now Sut...
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Defendant, on October 4, 1945, was charged in count one of an information with committing, on or about March 30, 1943, lewd and lascivious acts on the body of one Barbara Campbell (aged 12 years) ; in count two with statutory rape with, the same person on or about May 13, 1945; in a third count with sexual intercourse on or about March 15, 1945, with one Virgene' Lyons, aged 16 years; and in a fou...
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Two appeals from separate orders granting defendant’s motion to recall execution and strike alimony provisions from an interlocutory decree of divorce are presented together. The first point raised by the appellant is that the court was without jurisdiction to hear the motion because the notice thereof did not state the grounds upon which it would be made as required by section 1010 of the...
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Defendant was tried to a jury on an information framed in two counts—assault by force likely to produce bodily injury (Pen. Code, § 245), and assault with a deadly weapon (Pen. Code, § 3024). He was convicted on both counts and appeals from the verdict and also from the ensuing judgment. Since there is no right of appeal from a verdict that appeal is dismissed. People v. Ormes, 88 Cal.App.2d 353 [...
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The judgment herein is (1) for the enforcement of a rescission of an assignment of respondents’ *835 interest in an invention for potato slicing and in the letters patent to be issued thereon; (2) for respondents and appellant as owners to vest title to the patent in the partnership formed by appellant and decedent for the manufacture and sale of the device based upon such inventio...
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111 Cal.App.2d 843 (1952) 245 P.2d 571 WESTERN LOS ANGELES CITIZENS' COMMITTEE ON LIQUOR LICENSES (a Corporation) et al., Respondents, v. STATE BOARD OF EQUALIZATION OF THE STATE OF CALIFORNIA et al., Appellants. Docket No. 18678. Court of Appeals of California, Second District, Division Three. June 20, 1952. *844 Edmund G. Brown, Attorney General, Bayard Rhone, Deputy Attorney General, and David...
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These are appeals by the heirs at law of Emily Strobeck, deceased, and certain devisees named in her will and are from an order of the Superior Court of San Diego County dated April 26, 1951, (1) vacating and revoking former order entered October 27, 1950; (2) admitting to probate two wills of Emily Strobeck, in the above entitled estate. Emily Strobeck died on October 7, 1950, and on October 16th...
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These two actions, which were consolidated for trial, sought an accounting and to impress constructive trusts on certain real and personal property alleged to have been acquired by defendant Louis Obler * and his wife, defendant Bernice Obler, with moneys embezzled by him from the respective plaintiffs. From an amended judgment impressing such trusts, defendants appeal. Question...
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Clara Tucker, a probationary teacher in San Francisco, sought, by writ of mandate, to compel the San Francisco Board of Education to reemploy her as a school teacher after she had been discharged by the board. The trial court denied the application for a writ, entered its judgment in favor of the board, and Tucker appeals. There is no conflict as to the facts. On September 2, 1949, Tucker becam...
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This case involves substantially the same legal questions as were presented in Tucker v. San Francisco Unified School District, 1 Civ. No. 15033, this day decided (ante, p. 875 [245 P.2d 597].) Fox, too, was a probationary teacher who was discharged by the board. He, too, sought by mandate to be reinstated. His petition was denied by the superior court, judgment entered against him, and he ...
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Percy A. Cannis brought this action to recover for personal injuries suffered by him in a collision between his automobile and a truck operated by Thomas P. Hamby, then working in the course and scope of his employ *894 ment with the Di Salvo Trucking Company. The jury returned verdicts in favor of defendants. Plaintiff appeals. Appellant’s main argument is that the trial cour...
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By this complaint filed on October 31, 1949, plaintiff, Mollie Wendell, first wife of Abraham Wendell, seeks to attack and have set aside, on the ground of fraud, a divorce secured by Abraham in 1910, even though both parties thereafter remarried, Abraham in 1914, and Mollie in 1915. The trial court held, among other things, that, under the circumstances, Mollie was estopped from challenging the ...
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An automobile driven by defendant Josephine Cook collided with a bicycle being ridden by Horace 0. Ribble. Horace was killed. The surviving wife, Rumilda Ribble, and the two surviving adult children of Horace by a previous marriage, brought this action for damages against Cook. The jury brought in a verdict for the defendant. Plaintiffs appeal. This accident occurred on December 9, 1948. (It di...
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This is an appeal by a husband from an order vacating a default judgment of divorce he obtained upon a complaint wherein he alleged under oath that no child had been born to the union when he well knew the allegation was perjurious. The husband, it appears, has been living separate and apart from his wife and child for a period of over 12 years. In that period he has not contributed anything to th...
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Respondents, a copartnership, as plaintiffs, brought this action against appellant to recover an alleged balance due upon an oral contract. They alleged that on March 15, 1950, they entered into a written contract with appellant to do certain construction work in the remodeling of a building. They next alleged that on the same day and by mutual oral agreement the written contract was abandoned,...
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This appeal involves the cancellation of certain shares of stock in Midway Enterprises, Inc., which was organized for the purpose of operating drive-in motion picture theaters. Four persons, including the plaintiff Bernard and the defendant Joseph Shure, had operated certain theaters as a partnership. In June, 1948, they caused this corporation to be organized under the laws of Nevada, wit...
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Plaintiff brought an action to recover damages for fraud and deceit against defendants Frye, Newmark and the Frye-Newmark Paper Company. From a judgment in favor of plaintiff for $14,180 defendant Newmark alone appeals. The testimony discloses that plaintiff, a retired jeweler 61 years of age, advised his attorney, Mr. Mosk, that he desired to invest in a business that would provide him wi...
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Action to recover license fees allegedly due in connection with licensing horse racing. Plaintiff appeals from a judgment for defendant. Plaintiff, as the administrative agency charged with the *934administration of the law relating to horse racing, issued a license to defendant to conduct a horse racing meeting at Santa Anita Park for 50 days beginning December 26, 1949, and ending March 4, 1950....
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The amended information in this ease, in two counts charged defendant with entering Bremer’s Hardware Store in Yuba City on July 21, 1951, and July *94126, 1951, respectively, with intent to commit theft therein. A jury convicted defendant on both counts, and fixed the degree of the crimes as “Burglary in the Second Degree.” A motion for a new trial was denied. Defendant has appealed from his conv...
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Defendant has appealed from a judgment which rescinded and canceled three agreements executed by the parties in June and July, 1946, and awarded plaintiff $5,500 plus interest to the date of the judgment, and his costs of suit. The trial court found: (1) April 25, 1946, plaintiff at defendant’s solicitation commenced negotiations for the purchase of defendant’s general insurance agency business fo...
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Plaintiff has appealed from a judgment of nonsuit and from an order denying its motion for a new trial. The appeal from the order must be dismissed, for the order is nonappealable. The appeal from the judgment involves, primarily, the sufficiency of the evidence tending to prove plaintiff’s case, disregarding all evidence in conflict therewith. In April, 1935, plaintiff as first party...
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This is an appeal by Sam Rais, who as a minority stockholder of the Thornburgh Construction Company, sought in behalf of the corporation and was denied an accounting by Thornburg, his wife, and Thorn-burg’s bookkeeper, who was also a director of the corporation. The case before us is a companion case to the basic case No. 18716, Thornburgh Construction Co., a corporation, v. College Heights Dev., ...
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This is an action for a real estate broker’s commission. Upon a showing that plaintiff was a licensed broker, that defendant listed for sale with plaintiff exclusively for 30 days her certain real property, and that plaintiff obtained thereunder from Mr. and Mrs. Baker a written firm offer in accordance with the terms of the listing which was accepted by defendant, the trial court granted plaintif...
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Respondents have moved to dismiss the appeal by reason of appellants’ failure to comply with rules 4, 5, 6 and 7 of Rules on Appeal from Municipal Courts in Civil Cases. It appears from the affidavit in support of the motion, and from a certificate of the clerk of the trial court in the files, that none of the notices specified in rules 4, 5 and 7, and no statement under rule 6, has been filed in ...
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113 Cal. App. 2d 1 (1952) DIANA BENTLEY, a Minor, etc., et al., Appellants, v. JOHN CHAPMAN et al., Respondents. Civ. No. 15146. California Court of Appeals. First Dist., Div. One. Sept. 2, 1952. Pelton & Gunther and Reginald M. Watt for Appellants. Keith, Creede & Sedgwick for Respondents. WOOD (Fred B.), J. Plaintiffs have appealed from a verdict and a judgment for defendant in a...
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Howard Curtis, an heir and legatee, has appealed from (1) an order settling the account of Louise Beider, as executrix of the estate of Edith Manischewitz, deceased, under a California will dated September 3, 1948, and (2) an order admitting to probate a New York will of said deceased dated July 29, 1949, and appointing Louise Beider ancillary administratrix with the will annexed of the estate of...
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This is an appeal from the judgment on a verdict in favor of plaintiff. The action was for damages resulting from an automobile collision. The accident occurred on a clear day about 9:30 a. m. As recited in appellants’ brief, “Miss Martens was driving in an easterly direction on Wilshire Boulevard. She intended to make a left turn to proceed in a northeasterly direction onto Brighton ...
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This action arose out of an automobile collision which occurred April 11, 1949, at about 8 o’clock p. m. at the intersection of U. S. Highway 101 and 11th Street in Del Mar, San Diego County. The plaintiffs are the widow and six children of decedent Edward Albert Polloreno, who was killed in the collision. After trial by jury, a verdict was rendered in favor of plaintiffs for the sum of $3...
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This appeal is from the order appointing a receiver. The original action was (a) to enforce (1) the rescission of an assignment by respondents of their interest in a patent and (2) an accounting to Mrs. Sibert as administratrix of the affairs of a partnership between appellant and decedent and (b) for a receiver. The facts are fully set forth in the decision of this court in action No. 18771. (...
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Plaintiff appeals from an order of the Superior Court of Los Angeles County granting the motion of defendant, Harry J. Suttey, for a change of venue to Santa Cruz County. Defendants Harry J. Suttey and Rose G. Suttey were formerly husband and wife, residing in Santa Cruz County. In February, 1950, Harry filed suit for divorce from Rose. In his verified complaint he alleged plaintiff, who was then ...
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This appeal is on the judgment roll from a judgment in favor of defendants in an action brought by plaintiffs who sought to enjoin defendants from discharging irrigation waters into a natural watercourse which traverses the lands of plaintiffs to their alleged damage. The trial court found as follows: The area in question lies to the. northeast of the city of Galt in Sacramento County and ...
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On February 13, 1951, a verified complaint was filed wherein plaintiffs sought an injunction to prevent picketing. An order to show cause was immediately issued and served, setting the hearing for February 16th and on that day the matter was heard and continued to the 19th and then to the 21st. On the 20th an amended complaint was filed but no new order to show cause was obtained. On the 21st an o...
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pro tern.—To a petition for a partial distribution by named legatees under the will of Betta Doell, appellant filed his written opposition. The legatees seeking distribution are nieces and nephews of the decedent and named beneficiaries under the will. Appellant is the only child of a deceased son and is devised nothing. In his opposition to the petition for partial distribution he alleges that i...
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Defendant was tried to a jury on an information charging a violation of section 503 of the Vehicle Code—taking and driving an automobile without the owner’s consent. A second count charged grand theft of the automobile. A third count charged prior conviction of a felony— burglary. He was convicted on the first count, acquitted on the second, and admitted the third. Defendant was 18 years of age at...
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By an information defendant was charged with the crime of murder. He pleaded not guilty to the crime charged and the cause proceeded to trial before the jury. At the conclusion thereof he was found guilty of voluntary manslaughter. He now appeals from the judgment of conviction and the order denying his motion for a new trial. The facts, which are undisputed, show that on September 16, 1951, be...
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An action by Alfred Paihle, individually, and one by him as administrator, against his brother Rene, were consolidated for trial. In the first mentioned action the court gave judgment for defendant. Plaintiff did not appeal. *56 In; the second action the court decreed that defendant held certain real property and an insurance policy in trust for plaintiff as administrator. Defendant appeals. ...
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Defendant appeals from a judgment against him based upon a Nevada judgment. Question Presented The effect in California of a final judgment of a Nevada court based upon the cashing of checks in a Nevada gambling house. Facts On January 16, 1948, plaintiff recovered judgment against defendant for $500 and interest in the Second Judicial District Court of Nevada. This judgment was affirmed ...
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113 Cal.App.2d 71 (1952) ANNA S. CORREIA, as Special Administratrix, etc., Respondent, v. VAN CAMP SEA FOOD COMPANY, INC. (a Corporation) et al., Appellants. Civ. No. 18977. California Court of Appeals. Second Dist., Div. One. Sept. 12, 1952. Lasher B. Gallagher for Appellants. Ekdale, Shallenberger & Toner, Arch E. Ekdale, Gordon P. Shallenberger and George E. Toner for Respondent. WHI...
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In an information filed by the district attorney of Los Angeles County on May 23, 1946, defendant was charged with the crime of robbery, a felony, committed on or about the 6th day of May, 1946. *92 The information further charged the defendant with two prior convictions. On May 27, 1946, the public defender was appointed by the court as counsel for the defendant, and the latter was duly ar...
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A demurrer was sustained to plaintiffs’ second amended complaint. No request was made for leave to further amend and no further amendment having been proffered judgment followed in favor of defendants, from which judgment this appeal is taken. The complaint contains three counts. The first is for the recovery of moneys paid under duress; the second is supplementary to the first'; and the third ...
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113 Cal. App. 2d 107 (1952) GRACE E. DOUGLAS, Appellant, v. ELLEN L. WESTFALL et al., Respondents. Civ. No. 15133. California Court of Appeals. First Dist., Div. One. Sept. 15, 1952. Charles N. Douglas for Appellant. A. Don Duncan for Respondents. WOOD (Fred B.), J. This is an appeal by plaintiff from the judgment rendered, and from an order denying plaintiff's motion for a different judgm...
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pro tern.—This action is one in which a judgment forfeiting the defendant automobile to the state has been entered under the provisions of section 11610 of the Health and Safety Code, commonly referred to as the Narcotics Law. The car was being sold under a conditional sales contract at the time it was seized by the San Francisco police. The legal owner and the registered owner defended separatel...
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113 Cal. App. 2d 119 (1952) LUCY A. PATTERSON, Respondent, v. STILLMAN ROWE, Jr., et al., Appellants. Civ. No. 4298. California Court of Appeals. Fourth Dist. Sept. 15, 1952. Lindley, Lazar & Scales and George A. Lazar, Jr., for Appellants. Clarence Harden for Respondent. MUSSELL, J. Plaintiff commenced this action for personal injuries and property damage arising out of an automobile ...
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Defendant was charged in an information with nine counts of statutory rape of Mary Frances Evans, his stepdaughter. A jury trial resulted in verdicts of guilty on all counts and a recommendation of imprisonment in the state prison. Defendant’s application for probation was denied and the court ordered the sentences to be served concurrently with the sentence pronounced on the first count containe...
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pro tern.—This is an action for .declaratory relief and arises out of a controversy between the county of Monterey and the plaintiff with respect to the effect of a zoning ordinance of said county upon the property of plaintiff. The case was submitted to the trial court upon a stipulation of facts, and the court found substantially the facts so stipulated. From the facts found the court concluded...
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Don Behlen, doing business as professional business counselors, appeals from a judgment of the superior court in a third party claim proceeding determining that George C. Phillips is the owner of a 1951 Cadillac club coupé, engine No. 516206361, and directing the marshal to release *133the automobile to Phillips. Respondent Phillips is not represented by counsel and has filed no brief. Behlen secu...
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Plaintiffs are former members of The International Alliance of Theatrical Stage Employes and Moving Picture Machine Operators of the United States and Canada, and Local 683 thereof. They were expelled from the unions and brought this action seeking mandamus to compel their restoration and for damages and loss of earnings due to their alleged wrongful expulsion. Defendants are The International Al...
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Action to quiet title to personal property (proceeds of sale of real property under a trust deed), and for declaratory relief. Judgment was for plaintiffs and defendant Martin. Defendant Swenson appeals from the judgment. Appellant contends that his materialman’s lien is prior to plaintiffs’ alleged lien under a deed of trust for future advances of money. On October 20, 1947, Merle J. Olson e...
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113 Cal.App.2d 146 (1952) H. C. CROFOOT, Respondent, v. PETER SPIVAK, Appellant. Civ. No. 8038. California Court of Appeals. Third Dist. Sept. 19, 1952. Ira W. Barr for Appellant. Kasch & Cook for Respondent. VAN DYKE, J. This appeal is taken by defendant after judgment rendered against him in an action brought to recover money alleged to be due for services rendered. The complaint alleged...
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113 Cal.App.2d 149 (1952) HARRY A. GARFINKLE, Plaintiff and Appellant, v. VERDIS M. MONTGOMERY, as Administratrix, etc., et al., Defendants and Appellants. Civ. No. 8055. California Court of Appeals. Third Dist. Sept. 19, 1952. Norman R. Samuelsen and Darold D. DeCoe for Plaintiff and Appellant. Stanley J. Gale for Defendants and Appellants. VAN DYKE, J. Plaintiff and defendants alike have...
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pro tern.—Frank Weber, a resident of Yolo County and a large landowner, died on November 17, 1949, at the age of 83. He left an estate of the appraised value of $597,020.28: For the last 20 years or more of his life he roomed and boarded at the Beltrami Hotel in Broderick, Yolo County, the property being owned by Mr. Weber and the hotel being operated by his tenant, Mrs. Irene Beltrami. There ...
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Plaintiff appeals from a judgment in favor of defendant in an action for personal injuries and for damages to an automobile, arising from a collision between two automobiles. Questions Involved 1. Was there any evidence of negligence on the part of defendant and contributory negligence on the part of plaintiff ? 2. Were the instructions (a) on driving while under the influence of intoxicati...
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Defendant appeals from a judgment awarding plaintiff $35,841.24 damages for breach of contract. Questions Presented 1. Do the terms of the contract prohibit recovery of damages incurred by plaintiff solely due to defendant’s failure to obtain rights of way as agreed? 2. Did plaintiff fail to comply with its legal duty to minimize damages? 3. Was interest on the amount of damages from date of compl...
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113 Cal.App.2d 195 (1952) W. E. WILLIAMS, Appellant, v. GLEN E. REED et al., Respondents. Civ. No. 15199. California Court of Appeals. First Dist., Div. One. Sept. 24, 1952. Mancuso, Herron & Wynn for Appellant. Athearn, Chandler & Hoffman for Respondents. WOOD (Fred B.), J. Plaintiff W. E. Williams has appealed from a judgment dismissing as to all the defendants but Reed this action to en...
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113 Cal.App.2d 207 (1952) 248 P.2d 157 COUNTY OF LOS ANGELES, Respondent, v. CONTINENTAL CORPORATION (a Corporation), Appellant. COUNTY OF LOS ANGELES, Respondent, v. CONTINENTAL DEVELOPMENT CORPORATION (a Corporation), Appellant. Docket Nos. 19058, 19060, 19059. Court of Appeals of California, Second District, Division Two. September 24, 1952. *209 George H. Emerson for Appellants. Harold W. Ken...
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From a judgment of guilty of (1) forcible rape and (2) robbery, after trial before the court without a jury, defendant appeals. There is also an appeal from the order denying his motion for a new trial. Facts: On January 16, 1951, the prosecuting witness, a young woman 5 feet, 2 inches tall and weighing about 95 pounds, who had two days previously been released from the hospital, entered a café ne...
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113 Cal. App. 2d 234 (1952) ALLEN ELLIS et al., Appellants, v. CHRIS W. DALLAS et al., Respondents. Civ. No. 4288. California Court of Appeals. Fourth Dist. Sept. 24, 1952. Hillyer & Hillyer and William Hillyer for Appellants. Edmund G. Brown, Attorney General, Frank J. Mackin, Assistant Attorney General and Donald D. Stoker, Deputy Attorney General, as Amici Curiae on behalf of Appellan...
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113 Cal.App.2d 243 (1952) LEWIS BOIES, Respondent, v. C. ELLSWORTH WYLIE, Appellant. Civ. No. 14893. California Court of Appeals. First Dist., Div. Two. Sept. 25, 1952. Kenny & Morris for Appellant. Schofield, Hanson & Sholars for Respondent. GOODELL, J. This action was brought on a promissory note for $10,000, by the assignee of the payee. Judgment was entered on the findings for $10,000 ...
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113 Cal.App.2d 253 (1952) THE PEOPLE, Respondent, v. JAMES C. COLE, Appellant. Crim. No. 2793. California Court of Appeals. First Dist., Div. Two. Sept. 25, 1952. Davis & Colvin and Reynold H. Colvin for Appellant. Edmund G. Brown, Attorney General, and David K. Lener, Deputy Attorney General for Respondent. *255 DOOLING, J. Defendant was convicted on two counts of possession and one count...
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Plaintiff was a member and president of a local union affiliated with defendant Glass Bottle Blowers Association, a national labor union. He was suspended from membership in the union by order of the national president *264 thereof. Following subsequent proceedings before the national union tribunals, plaintiff was denied reinstatement therein. Thereafter, plaintiff commenced an action agains...
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113 Cal. App. 2d 269 (1952) JAMES M. JOBE, Appellant, v. HAROLD LIVESTOCK COMMISSION COMPANY (a Corporation) et al., Respondents. Civ. No. 18964. California Court of Appeals. Second Dist., Div. Three. Sept. 25, 1952. Edward Feldman for Appellant. Bauder, Gilbert, Thompson & Kelly for Respondents. SHINN, P. J. At about 11 o'clock a. m., October 19, 1949, plaintiff James M. Jobe and his ...
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113 Cal.App.2d 277 (1952) THE PEOPLE, Respondent, v. JOHN SONIER, Appellant Crim. No. 2824. California Court of Appeals. First Dist., Div. Two. Sept. 26, 1952. Terry A. Francois and J. Maxwell Peyser for Appellant. Edmund G. Brown, Attorney General, and David K. Lener, Deputy Attorney General, for Respondent. DOOLING, J. Defendant was convicted by a jury of a violation of Penal Code, secti...
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113 Cal.App.2d 280 (1952) ETHEL M. HANDLEY, Appellant, v. ROY HANDLEY, Respondent. Civ. No. 19018. California Court of Appeals. Second Dist., Div. Two. Sept. 26, 1952. Edward A. Norstrand for Appellant. James L. Grubbs for Respondent. *281 FOX, J. This is an appeal by the plaintiff from that part of an interlocutory judgment of divorce adjudicating a certain parcel of real property to be c...
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113 Cal. App. 2d 286 (1952) 248 P.2d 117 ALPAUGH IRRIGATION DISTRICT, Appellant, v. COUNTY OF KERN, Respondent. Docket No. 8101. Court of Appeals of California, Third District. September 26, 1952. *288 W.E. James, LeRoy McCormick and Robert E. Moock for Appellant. Norbert Baumgarten, County Counsel, for Respondent. VAN DYKE, J. This is an appeal from a judgment in favor of defendant in an action ...
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113 Cal.App.2d 295 (1952) LUTHER D. BASSETT, Respondent, v. CHARLES B. CRISP, Appellant. Civ. No. 8133. California Court of Appeals. Third Dist. Sept. 26, 1952. Vernon F. Gant and Oliver D. Germino for Appellant. C. Ray Robinson, R. A. McCormick and William B. Boone for Respondent. THE COURT. Plaintiff, a guest in an automobile driven by defendant Charles B. Crisp, claimed injury resulting...
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113 Cal.App.2d 309 (1952) MICHAEL PECAROVICH, Respondent, v. THOMAS A. BECKER et al., Defendants; VIRGIL D. DARDI, Appellant. Civ. No. 15068. California Court of Appeals. First Dist., Div. One. Sept. 29, 1952. Henry C. Clausen for Appellant. Partridge & O'Connell for Respondent. WOOD (Fred B.), J. Defendant Virgil D. Dardi has appealed from a judgment for $10,500 in favor of plaintiff Mich...
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113 Cal. App. 2d 319 (1952) Estate of O. K. CUSHING, Deceased. THOMAS H. KUCHEL, as State Controller, Appellant, v. INA G. CUSHING, Individually and as Executrix etc., Respondent. Civ. No. 15106. California Court of Appeals. First Dist., Div. One. Sept. 29, 1952. James W. Hickey, Chief Inheritance Tax Attorney, Charles J. Bary and Raymond G. La Noue, Deputy Inheritance Tax Attorneys, and J. D...
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113 Cal.App.2d 335 (1952) JAMES K. KNEELAND, Appellant, v. ETHICON SUTURE LABORATORIES, INC. (a Corporation) et al., Respondents. Civ. No. 15363. California Court of Appeals. First Dist., Div. One. Sept. 29, 1952. David E. Adelson for Appellant. Brown, Rosson & Berry for Respondents. *336 BRAY, J. Defendant Ethicon Suture Laboratories, Inc., [fn. *] moved to dismiss plaintiff's appeal fro...
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113 Cal.App.2d 339 (1952) THE PEOPLE, Respondent, v. GLEN E. REED, Appellant. Crim. No. 2799. California Court of Appeals. First Dist., Div. One. Sept. 29, 1952. Sefton & Anderson for Appellant. Edmund G. Brown, Attorney General, David K. Lener, Deputy Attorney General, Thomas C. Lynch, District Attorney (San Francisco), and William Acton, Assistant District Attorney, for Respondent. WOOD (...
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113 Cal.App.2d 356 (1952) JOHN H. CRABBE, Appellant, v. W. T. WHITE et al., Respondents. Civ. No. 15014. California Court of Appeals. First Dist., Div. Two. Sept. 29, 1952. Crabbe & Streiff for Appellant. Charles D. Sooy and Maurice Thorner for Respondents. GOODELL, J. This appeal is from a judgment entered on the sustaining of a demurrer to an amended second and supplemental complaint, wi...
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Plaintiff is the divorced wife of John S. Barthorpe, deceased. The defendant Elaine T. Barthorpe is his widow. In the year 1935, while plaintiff and her husband were living together, the husband joined with two others to form the Jamison Steel Corporation. These three, with the wives of each, executed a written agreement by which each agreed to purchase one-third of the corporate stock to be paid ...
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113 Cal.App.2d 365 (1952) 248 P.2d 130 THE PEOPLE, Respondent, v. JOSEPH DEAN GRIMES, Appellant. Docket No. 924. Court of Appeals of California, Fourth District. September 29, 1952. *366 J. David Hennigan for Appellant. Edmund G. Brown, Attorney General, and Norman H. Sokolow, Deputy Attorney General, for Respondent. GRIFFIN, Acting P.J. Defendant was convicted by a jury of burglarizing a drugsto...
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113 Cal.App.2d 374 (1952) LOUIS B. DIAS, Appellant, v. CALIFORNIA EMPLOYMENT STABILIZATION COMMISSION et al., Respondents. Civ. No. 15254. California Court of Appeals. First Dist., Div. Two. Sept. 30, 1952. Norman A. Eisner and Haskell Titchell for Appellant. Edmund G. Brown, Attorney General, Irving H. Perluss and William L. Shaw, Deputy Attorneys General, for Respondents. GOODELL, J. Thi...
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113 Cal.App.2d 383 (1952) MARSHALL ABBOTT, Appellant, v. GEORGE F. HAUSCHILD, Respondent. Civ. No. 18812. California Court of Appeals. Second Dist., Div. One. Sept. 30, 1952. Marshall Abbott in pro. per. and Alfred D. Freis for Appellant. George D. Higgins in pro. per. for Respondents. WHITE, P. J. The appeals in the two above entitled causes have been presented on a single set of briefs, ...
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113 Cal.App.2d 389 (1952) ISADOR GREENBERG et al., Appellants, v. COUNTY OF LOS ANGELES, Respondent. Civ. No. 19150. California Court of Appeals. Second Dist., Div. One. Sept. 30, 1952. Kenny & Morris for Appellants. Harold W. Kennedy, County Counsel, and Lloyd S. Davis, Deputy County Counsel, for Respondent. DORAN, J. This is an appeal from a judgment based upon an order sustaining respon...
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Plaintiff appeals from a judgment denying its claim for a tax refund. Plaintiff paid under protest the real property taxes for 1949-1950 on three lots and the structure thereon. It contends the property was eligible for the “church exemption” granted by section iy2 of article XIII of the California Constitution.* On the first Monday of March, 1949, and for some years prior thereto, the plaintiff c...
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113 Cal. App. 2d 397 (1952) JOHN W. FISHER et al., Respondents, v. NASH BUILDING COMPANY, INC. (a Corporation) et al., Defendants; CHARLES TESSEYMAN, Appellant. Civ. No. 18506. California Court of Appeals. Second Dist., Div. Three. Sept. 30, 1952. H. J. Kleefisch for Appellant. A. V. Muller for Respondents. VALLEE, J. Appeal by defendant Tesseyman from a judgment for plaintiffs in an actio...
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113 Cal. App. 2d 404 (1952) CHARLES TESSEYMAN, Appellant, v. JOHN W. FISHER et al., Respondents. Civ. No. 18758. California Court of Appeals. Second Dist., Div. Three. Sept. 30, 1952. H. J. Kleefisch for Appellant. Courtney L. Moore and A. V. Muller for Respondents. VALLEE, J. This is a companion case to Fisher v. Nash Building Co., Inc., ante, p. 397 [248 P.2d 466]. Both opinions should b...
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113 Cal.App.2d 409 (1952) KENNETH KIRKPATRICK, Appellant, v. MARSHALL ADAMS SMITH et al., Respondents. Civ. No. 18979. California Court of Appeals. Second Dist., Div. Three. Sept. 30, 1952. Warren White for Appellant. Roger W. Young for Respondents. VALLEE, J. Appeal by plaintiff from a judgment awarding him $2,734.27, with interest, in an action against his coadventurer seeking monies due...
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113 Cal.App.2d 413 (1952) In re BLANCHE CLARA SWEET, on Habeas Corpus. Crim. No. 4886. California Court of Appeals. Second Dist., Div. Three. Sept. 30, 1952. Richard A. Haley for Appellant. S. Ernest Roll, District Attorney (Los Angeles), and Jere J. Sullivan, Deputy District Attorney, for Respondent. SHINN, P. J. Ordinarily, where a petitioner for habeas corpus has an appeal pending or a ...
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113 Cal.App.2d 416 (1952) THE PEOPLE, Respondent, v. EDGAR LEE SMITH, Appellant. Crim. No. 4848. California Court of Appeals. Second Dist., Div. Two. Oct. 1, 1952. Henry C. Huntington for Appellant. Edmund G. Brown, Attorney General, and Norman H. Sokolow, Deputy Attorney General, for Respondent. FOX, J. Defendant was convicted by the court sitting without a jury of a violation of section ...
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113 Cal.App.2d 421 (1952) 248 P.2d 35 WILLIAM HENRY CLAY SHRIVER, Appellant, v. THOMAS H. KUCHEL, as State Controller, Respondent. Docket No. 19051. Court of Appeals of California, Second District, Division Three. October 1, 1952. *422 Elizabeth Cochran and James E. Pawson for Appellant. James W. Hickey and Walter H. Miller for Respondent. VALLEE, J. Plaintiff, William Henry Clay Shriver, brought...
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113 Cal.App.2d 428 (1952) 248 P.2d 450 ARTHUR C. SCHAEFER, Petitioner, v. SUPERIOR COURT OF THE COUNTY OF SANTA BARBARA, Respondent. Docket No. 19109. Court of Appeals of California, Second District, Division Three. October 1, 1952. *429 Edward J. Trevey for Petitioner. Vern B. Thomas, District Attorney, Frank J. McCarthy and Albert W. Meloling, Deputy District Attorneys, for Respondent. WOOD (Pa...
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113 Cal.App.2d 439 (1952) SAM BOLOYAN et al., Respondents, v. IRVING J. CONTENTE et al., Appellants. Civ. No. 8125. California Court of Appeals. Third Dist. Oct. 1, 1952. Horace E. Dunning for Appellants. Albert L. Wagner and E. R. Vaughn for Respondents. VAN DYKE, J. This action was brought by plaintiffs (respondents here) to quiet their title to certain real and personal property. Their ...
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113 Cal. App. 2d 443 (1952) WILLIAM RAY BOYD, Petitioner, v. SUPERIOR COURT OF SOLANO COUNTY, Respondent. Civ. No. 8285. California Court of Appeals. Third Dist. Oct. 1, 1952. Winters & Winters for Petitioner. Edmund G. Brown, Attorney General, and Gail A. Strader, Deputy Attorney General, for Respondent. VAN DYKE, J. Petition for writ of prohibition. A complaint was issued charging pe...
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pro tern.—This appeal is taken from a particular part of a judgment determining adverse claims to the Guadalupe Mine and Eanch in Santa Clara County. The property is comprised of a quicksilver mine and several hundred acres of land, and was owned by Mrs. Jessie S. Gregory who is now *448deceased. During her lifetime Mrs. Gregory gave deeds to an undivided one-half of the property to her attorneys ...
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From a judgment in favor of defendant after trial before the court without a jury in an action to recover the contract price for the transportation of defendant’s cattle by plaintiff, plaintiff appeals. Facts: Plaintiff instituted an action to recover $618 for work and services performed for defendant in transporting two truck loads of cattle from Strawberry, Nevada to Blythe, California. *452Defe...
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113 Cal.App.2d 453 (1952) ED CARL ROSS, Respondent, v. A. L. MURPHY et al., Appellant. Civ. No. 18966. California Court of Appeals. Second Dist., Div. Two. Oct. 2, 1952. Porter C. Blackburn for Appellant. Samuel Reisman and Norman Pittluck for Respondent. McCOMB, J. From an order of Judge Ingall W. Bull setting aside an order of Judge Charles S. Haas, both of the Superior Court of Los Ange...
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113 Cal.App.2d 455 (1952) FRANK E. ROBINSON, Appellant, v. IRVING KING et al., Respondents. Civ. No. 19021. California Court of Appeals. Second Dist., Div. Two. Oct. 2, 1952. Richard Richards for Appellant. Moss, Lyon & Dunn, Sidney A. Moss and Henry F. Walker for Respondents. McCOMB, J. From a judgment directing a verdict in favor of defendants after trial before a jury in an action t...
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After trial before the court without a jury defendant was found guilty of robbery in the first degree. Defendant appeals from the judgment and from the order denying his motion for a new trial. Facts: On August 7, 1951, defendant and another man took $95 from a liquor store located at 9024 Long Beach Boulevard. The men tied the owner’s hands behind his back and while he was in fear of a gun which ...
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113 Cal. App. 2d 460 (1952) THE PEOPLE, Respondent, v. PATRICK E. IRVINE, Appellant. Crim. No. 4857. California Court of Appeals. Second Dist., Div. Two. Oct. 2, 1952. A. H. McConnell for Appellant. Edmund G. Brown, Attorney General, and Elizabeth Miller, Deputy Attorney General, for Respondent. McCOMB, J. From a judgment of guilty of violating (1) subdivision 1, section 337a of the Penal ...
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113 Cal.App.2d 465 (1952) 248 P.2d 31 MARY CONTI et al., Respondents, v. STATE BOARD OF EQUALIZATION, Appellant. Docket No. 15145. Court of Appeals of California, First District, Division Two. October 3, 1952. Edmund G. Brown, Attorney General, and William M. Bennett, Deputy Attorney General, for Appellant. J. Elwood Andresen for Respondents. NOURSE, P.J. In proceedings before the State Board of ...
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113 Cal.App.2d 468 (1952) THE PEOPLE, Respondent, v. BLAND LEWIS, Appellant. Crim. No. 2807. California Court of Appeals. First Dist., Div. Two. Oct. 3, 1952. Millington, Dell'Ergo, Weeks & Morrissey for Appellant. Edmund G. Brown, Attorney General, Clarence A. Linn, Assistant Attorney General, and Charles A. McClung, Deputy Attorney General, for Respondent. DOOLING, J. Appellant Lewis and...
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113 Cal. App. 2d 472 (1952) MICHAEL JOHN KEMPPAINEN, a Minor, etc., Respondent, v. COY HESTER, Appellant. Civ. No. 19162. California Court of Appeals. Second Dist., Div. Two. Oct. 3, 1952. Krag & Sweet for Appellant. Emmett A. Tompkins for Respondent. FOX, J. Defendant appeals from a judgment awarding plaintiff $60 per month for his support and maintenance until he attains his majority...
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113 Cal.App.2d 476 (1952) COUNTY OF LOS ANGELES, Respondent, v. RALPH EDWARD LANE, Appellant. Civ. No. 18850. California Court of Appeals. Second Dist., Div. Three. Oct. 3, 1952. Edward Raiden and Charles E. Tady for Appellant. Harold W. Kennedy, County Counsel, Gerald G. Kelly, Assistant County Counsel, and Robert C. Lynch, Deputy County Counsel, for Respondent. VALLEE, J. The county of L...
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In the respondent’s brief, prepared by Mr. Frank Richards, assistant attorney general, we 'find the following statement of the case and discussion of the several grounds of appeal urged by appellant: “This is an appeal by defendant from an order denying his petition for a writ of error eoram nobis. It appears that on March 7, 1951 an information was filed in the Superior Court of Los Angeles Count...
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113 Cal.App.2d 486 (1952) FRANK CORUCCINI et al., Appellants, v. CHARLES F. LAMBERT, Respondent. Civ. No. 8109. California Court of Appeals. Third Dist. Oct. 3, 1952. James E. Lyons and Charles W. Burkett, Jr., for Appellants. Clyde H. Larimer, Charles H. Frost, Jr., and Devlin, Diepenbrock & Wulff for Respondent. PEEK, J. This is an appeal by plaintiffs from a judgment of dismissal follow...
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This is an appeal from a judgment in favor of defendants and from the order denying plaintiff’s motion for a new trial. *501In 1910 plaintiff’s property was owned by one Shadduck and defendants’ property was owned by one Harris. Shad-duck required more water for use on his land and in search for an additional source discovered a “wet spot of ground” on the Harris property. Upon request, Harris gra...
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pro tem.—The widow and minor children of Albert Dorman commenced an action to recover damages for his death which resulted from a collision on an oiled county road in Shasta County between a 1936 Chevrolet sedan driven by decedent and a cattle truck owned by defendant J. W. Taylor and operated by his employee, Alvin Chase. A second cause of action sought damages for injuries sustained by David Dor...
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113 Cal.App.2d 510 (1952) 248 P.2d 520 THE PEOPLE, Respondent, v. DORIS SULLIVAN et al., Appellants. Docket No. 771. Court of Appeals of California, Fourth District. October 3, 1952. *513 Richard E. Adams, A. Brigham Rose, David A. Block, John Preston, Thomas Whelan and Eli H. Levenson for Appellants. Edmund G. Brown, Attorney General, and William E. James, Deputy Attorney General, for Respondent...
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113 Cal. App. 2d 528 (1952) REXALL DRUG COMPANY (a Corporation), Appellant, v. WALTER C. PETERSON, as City Clerk, etc., et al., Respondents. Civ. No. 18859. California Court of Appeals. Second Dist., Div. One. Oct. 6, 1952. Adams, Duque, Davis & Hazeltine, Bryant K. Burton and James E. Wallace for Appellant. Ray L. Chesebro, City Attorney (Los Angeles), Bourke Jones, Assistant City Attor...
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113 Cal.App.2d 531 (1952) DEXTER BENNER, Appellant, v. JEAN E. BENNER, Defendant; FLORENCE SPANGLER, Respondent. Civ. No. 18837. California Court of Appeals. Second Dist., Div. Two. Oct. 6, 1952. Robert H. Green for Appellant. Hahn, Ross & Saunders for Respondent. FOX, J. Following a decree of divorce, custody of the minor child of the parties was awarded to defendant, who, with the child,...
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113 Cal.App.2d 534 (1952) JAMES W. KING, Respondent, v. EVELYN M. HAWLEY et al., Appellants. Civ. No. 8146. California Court of Appeals. Third Dist. Oct. 6, 1952. Blewett, Blewett, Macey & Garretson for Appellants. Mazzera, Snyder & DeMartini for Respondent. VAN DYKE, J. E. O. Sylvester died August 13, 1946. His surviving sister, Ida M. Graves, was appointed executrix of his will and as su...
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113 Cal.App.2d 549 (1952) GROUP PROPERTY INCORPORATED, Respondent, v. DR. LYMAN W. BRUCE, Appellant. Civ. No. 4509. California Court of Appeals. Fourth Dist. Oct. 6, 1952. McInnis & Hamilton for Appellant. Edgar B. Hervey, Thomas P. Golden and Henry F. Walker for Respondent. GRIFFIN, J. Plaintiff corporation brought this action against defendant for declaratory relief and asked that defend...
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113 Cal. App. 2d 561 (1952) FRANK E. CLAYCOMB et al., Respondents, v. LEONARD CARONNA et al., Appellants. Civ. No. 4506. California Court of Appeals. Fourth Dist. Oct. 7, 1952. David Press for Appellants. Procopio, Price & Schwartz for Respondents. GRIFFIN, J. Plaintiffs brought this action on August 14, 1951, against defendants who then resided in Los Angeles County. The complaint con...
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113 Cal. App. 2d 567 (1952) 248 P.2d 771 THE PEOPLE, Respondent, v. JOEL DANE JONES, Appellant. Docket No. 851. Court of Appeals of California, Fourth District. October 7, 1952. A.A. George and R.D. Love for Appellant. Edmund G. Brown, Attorney General, and Alberta Gattone, Deputy Attorney General, for Respondent. *568 GRIFFIN, J. The information charges defendant in counts one and two, with viol...
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113 Cal.App.2d 571 (1952) DAVE KAPLAN, Appellant, v. R. M. HACKER, Respondent. Civ. No. 18700. California Court of Appeals. Second Dist., Div. Two. Oct. 8, 1952. Buchalter, Nemer & Fields and Milton Linder for Appellant. Leo K. Gold for Respondent. FOX, J. Plaintiff appeals from (1) an order requiring him, upon payment of $300.10 by the defendant, to execute and file a satisfaction of ...
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113 Cal. App. 2d 575 (1952) FRANCES AGNEW, Appellant, v. GEORGE T. FOELL et al., Respondents. Civ. No. 18915. California Court of Appeals. Second Dist., Div. Two. Oct. 8, 1952. Cuthbert J. Scott for Appellant. Ogden, Crocker & Steelman, Irsfeld & Irsfeld and James B. Irsfeld, Jr., for Respondents. MOORE, P. J. Appellant is displeased with a judgment denying her relief in an action ...
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113 Cal.App.2d 578 (1952) THE PEOPLE, Respondent, v. ONE 1941 CHEVROLET COUPE, Engine No. AA430562, Defendant; FRED W. GRAY COMPANY (a Corporation), Appellant. Civ. No. 19005. California Court of Appeals. Second Dist., Div. Two. Oct. 8, 1952. Macfarlane, Schaefer & Haun and E. J. Caldecott for Appellant. Edmund G. Brown, Attorney General, and Dan Kaufmann, Deputy Attorney General, for Re...
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113 Cal.App.2d 584 (1952) LOTTIE GRAVES, Appellant, v. MARCEL ROMAN et al., Respondents. Civ. No. 19024. California Court of Appeals. Second Dist., Div. Two. Oct. 8, 1952. Adams, Duque & Hazeltine and A. Andrew Hauk for Appellant. Jennings & Belcher, William F. Clements, Moss, Lyon & Dunn, Gerold C. Dunn and Henry F. Walker for Respondents. MOORE, P. J. Appellant sued to recover damages fo...
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113 Cal.App.2d 587 (1952) CITY OF INGLEWOOD, Respondent, v. THE O. T. JOHNSON CORPORATION (a Corporation) et al., Appellants. Civ. No. 19129. California Court of Appeals. Second Dist., Div. Two. Oct. 8, 1952. Cosgrove, Cramer, Diether & Rindge and Leonard A. Diether for Appellants. Clyde Woodworth, City Attorney, and Robert E. Rosskopf, for Respondent. MOORE, P. J. Defendants appeal from a...
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113 Cal.App.2d 593 (1952) THE PEOPLE, Respondent, v. GENEVIEVE ALLEN, Appellant Crim. No. 4844. California Court of Appeals. Second Dist., Div. Two. Oct. 8, 1952. Murray M. Chotiner for Appellant. Edmund G. Brown, Attorney General, and Norman H. Sokolow, Deputy Attorney General, for Respondent. *594 MOORE, P. J. Convicted of pool selling and bookmaking (Pen. Code, 337a, subd. 1) defendant...
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113 Cal.App.2d 598 (1952) EVELYN WEIGHTMAN, Respondent, v. GEORGE H. HADLEY, SR., Appellant. Civ. No. 18822. California Court of Appeals. Second Dist., Div. Three. Oct. 8, 1952. Walter M. Gleason and Prentiss Moore for Appellant. Dolley, Knight, Woods & Hightower and Eugene M. Elson for Respondent. SHINN, P. J. This action was for rescission of a sale of an interest in an oil lease and cor...
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113 Cal.App.2d 613 (1952) In re JAMES BERRY, on Habeas Corpus. Crim. No. 2846. California Court of Appeals. First Dist., Div. Two. Oct. 9, 1952. James Berry, in pro. per., for Petitioner. Edmund G. Brown, Attorney General, Clarence A. Linn, Assistant Attorney General, and Charles E. McClung, Deputy Attorney General, for Respondent. *614 DOOLING, J. Petitioner seeks relief by habeas corpus ...
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113 Cal.App.2d 615 (1952) 248 P.2d 501 BIRDIE HARRIS, Appellant, v. JENNIE O. HARFMANN, Respondent. Docket No. 18983. Court of Appeals of California, Second District, Division One. October 9, 1952. Russell H. Pray and Eric A. Rose for Appellant. Ball, Hunt & Hart for Respondent. DRAPEAU, J. Plaintiff, Birdie Harris, and defendant, Jennie O. Harfmann are sisters. In July, 1949, plaintiff and defen...
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113 Cal. App. 2d 617 (1952) THE PEOPLE, Respondent, v. LORENZO GONZALES ALAMILLO, Appellant. Crim. No. 4776. California Court of Appeals. Second Dist., Div. One. Oct. 9, 1952. William W. Larsen for Appellant. Edmund G. Brown, Attorney General, and Frank Richards, Deputy Attorney General, for Respondent. WHITE, P. J. In an information filed by the District Attorney of Los Angeles County, de...
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113 Cal.App.2d 622 (1952) HAROLD K. BERESFORD et al., Appellants, v. PACIFIC GAS AND ELECTRIC COMPANY (a Corporation) et al., Respondents. Civ. No. 8288. California Court of Appeals. Third Dist. Oct. 9, 1952. L. C. Smith and Rawlins Coffman for Appellants. Peters & Peters and Samuel Vartan for Respondents. PEEK, J. This is a motion by defendant Public Utilities California Corporation (here...
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113 Cal.App.2d 627 (1952) CARL C. PEARCE, Appellant, v. FREDERICK G. LINDE et al., Respondents. Civ. No. 15067. California Court of Appeals. First Dist., Div. Two. Oct. 10, 1952. Emmett R. Burns, Arthur C. Zief and Rinaldo A. Carmazzi for Appellant. Harold C. Brown, as Amicus Curiae on behalf of Appellant. Robert L. Lamb and Robert A. Haughwout for Respondents. Hartley F. Peart, Gus L. Bar...
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For the second time defendant in this case, William Ramos, is before the court, charged with assisting an inmate of the Ventura School for Girls to escape. The school is a correctional state institution. In each ease an information filed by the District Attorney of Ventura County was set aside by the superior court for the reason that the evidence taken on the preliminary examination was insuffici...
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The action herein, one to recover damages caused by fire alleged to be due to defendants’ negligence, was dismissed by the trial court on the ground that appellants had failed to prosecute the same with reasonable diligence. Plaintiffs have appealed from the judgment of dismissal. Plaintiffs and appellants, as subrogees under policies of fire insurance, filed the action in question on July 6, 1948...
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113 Cal.App.2d 639 (1952) BANK OF AMERICA NATIONAL TRUST AND SAVINGS ASSOCIATION, Respondent, v. JOHN HARRAH, Appellant. Civ. No. 18988. California Court of Appeals. Second Dist., Div. Two. Oct. 14, 1952. Hiram E. Casey and Guy Richards Crump for Appellant. Samuel B. Stewart, Jr., Hugo A. Steinmeyer and John E. Walter for Respondent. FOX, J. On January 28, 1946, plaintiff filed this action...
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113 Cal. App. 2d 642 (1952) HARRY BREITMAN, Appellant, v. IRVING BRODY et al., Respondents. Civ. No. 19167. California Court of Appeals. Second Dist., Div. Two. Oct. 15, 1952 David Sokol for Appellant. Max Albeck for Respondents. McCOMB, J. From a judgment in favor of defendants after trial before the court without a jury in an action to recover certain wages alleged to be due for overtime...
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This is an action for damages brought under the Merchant Seaman’s Act, commonly known as the Jones Act (Title 46 U.S.C.A., § 688). The plaintiff was one of the crew on a tuna boat owned by the defendants. The boat left San Diego in October, 1947, on a fishing trip. One of its owners, Jose Alves, was in charge of the vessel as master. He had hired the crew, one of whom was his son Eduenno Alves, wh...
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This is an action to quiet title to real property in San Diego. It was brought by plaintiff against her minor daughter, who is the record owner by deed, from plaintiff to her, bearing date of July 9, 1942, signed and acknowledged June 9, 1942, and recorded September 16, of the same year. The principal issues presented to the trial court were whether plaintiff had executed and delivered the questio...
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113 Cal. App. 2d 657 (1952) ALEXANDER A. THOMAS et al., Appellants, v. LOUIS LAGUNA et al., Respondents. Civ. Nos. 18798-18800. California Court of Appeals. Oct. 16, 1952. Melvin Simon and Samuel Schekman for Appellants. Hunter & Liljestrom and Wendell Mackay for Respondents. McCOMB, J. From a judgment in favor of defendants after trial before a jury in an action to recover damages for i...
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113 Cal.App.2d 661 (1952) BERNARD R. SIEGEL et al., Appellants, v. E. C. BAYLESS et al., Respondents. Civ. No. 18984. California Court of Appeals. Second Dist., Div. Two. Oct. 16, 1952. Frye & Yudelson for Appellants. Irwin & Melby for Respondents. FOX, J. Plaintiffs sought to recover possession of a certain Cadillac automobile through a claim and delivery proceeding. Defendants denied the...
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113 Cal.App.2d 666 (1952) WILLIAM ODENTHAL, Respondent, v. HARRY W. LEE, Appellant. Civ. No. 19072. California Court of Appeals. Second Dist., Div. Two. Oct. 16, 1952. Myron W. Silverton and Robert M. Bushnell for Appellant. Roy B. Woolsey for Respondent. MOORE, P. J. Judgment for $3,342.09 against defendant was entered on the court's finding that he was indebted to plaintiff on an account...
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113 Cal.App.2d 669 (1952) EARL W. NAGLE, Appellant, v. CITY OF LONG BEACH, Respondent. Civ. No. 19074. California Court of Appeals. Second Dist., Div. Two. Oct. 16, 1952. Riedman & Silverberg and Fred M. Riedman for Appellant. Gibson, Dunn & Crutcher, Sherman Welpton, Jr., William F. Spaulding and C. Robert Simpson, Jr., for Respondent. MOORE, P. J. Appeal from a judgment entered after gra...
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113 Cal.App.2d 682 (1952) THE PEOPLE, Respondent, v. LEON NELSON DODD, Appellant. Crim. No. 4720. California Court of Appeals. Second Dist., Div. Three. Oct. 16, 1952 Edwin D. Jones, Jr., for Appellant. Edmund G. Brown, Attorney General, for Respondent. SHINN, P. J. In a nonjury trial appellant Dodd was convicted of second degree burglary. He was charged with and admitted a prior convictio...
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113 Cal.App.2d 687 (1952) THE PEOPLE, Respondent, v. JOHN WESLEY STEWART, Appellant. Crim. No. 856. California Court of Appeals. Fourth Dist. Oct. 16, 1952. John M. Nairn for Appellant. Edmund G. Brown, Attorney General, and Michael J. Clemens, Deputy Attorney General, for Respondent. GRIFFIN, J. Defendant was convicted by a jury of first degree burglary on December 24, 1951. The action wa...
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113 Cal.App.2d 692 (1952) MARY ANN FULTON, a Minor, etc. et al., Plaintiffs and Appellants, v. BERNARD HUGUET, Defendant and Appellant. Civ. No. 18894. California Court of Appeals. Second Dist., Div. Two. Oct. 17, 1952. Pollock & Pollock, Edward I. Pollock and David Pollock for Plaintiffs and Appellants. Bauder, Gilbert, Thompson & Kelly for Defendant and Appellant. McCOMB, J. From an orde...
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113 Cal. App. 2d 700 (1952) FRANK R. VIERA, Appellant, v. CHARLES F. GORDON et al., Respondents. Civ. No. 18997. California Court of Appeals. Second Dist., Div. Two. Oct. 17, 1952. Rinehart, Merriam, Parker & Berg and Jay D. Rinehart for Appellant. James V. Brewer for Respondents. *701 McCOMB, J. From a judgment in favor of defendants in a trial before a jury in an action to recover da...
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113 Cal.App.2d 705 (1952) LEWIS & QUEEN (a Partnership), Respondents, v. S. EDMONDSON & SONS (a Partnership) et al., Appellants. Civ. No. 19031. California Court of Appeals. Second Dist., Div. Two. Oct. 17, 1952. Everett H. Smith and Oliver C. Hardy for Appellants. Howard B. Crittenden, Jr., for Respondents. *707 McCOMB, J. From a judgment in favor of plaintiffs on a labor and mate...
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113 Cal.App.2d 712 (1952) ELLEN M. ROBERTS, Respondent, v. MARIA CLARK LEBRAIN, Appellant. Civ. No. 19115. California Court of Appeals. Second Dist., Div. Two. Oct. 17, 1952. Kelsey Petterson for Appellant. Morris T. Johnson for Respondent. FOX, J. In 1945 respondent and her husband, Allen L. Roberts, owned as joint tenants the real property here in controversy. It is located on 115th Stre...
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This case was before the court on a former appeal (100 Cal.App.2d 177 [223 P.2d 288]), when a summary-judgment in favor of plaintiff was reversed. In the first cause of action of the complaint it was alleged that William E. Vetri, James Severino, Anthony Rizzo and Braz Cox, purchased an air conditioning system from plaintiff’s assignor and agreed to pay therefor $4,200, no part of which had been p...
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113 Cal.App.2d 720 (1952) THE PEOPLE, Respondent, v. MILTON GUTHRIE et al., Defendants; LESLIE EARL SHICKNER, Appellant. Crim. No. 4858. California Court of Appeals. Second Dist., Div. Three. Oct. 17, 1952. William M. Brandon and Francis X. Marnell for Appellant. Edmund G. Brown, Attorney General, and Frank Richards, Assistant Attorney General, for Respondent. *721 WOOD (Parker), J. Defend...
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The present appeal is from a judgment in defendant’s favor denying recovery of attorney fees alleged to be owing by the defendant husband to plaintiff’s assignors for conducting the wife’s divorce litigation. The complaint in three causes of action based on an open book account, an *725account stated, and for reasonable value of professional services “at defendant’s instance and request,” sought r...
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113 Cal. App. 2d 729 (1952) HUGH X. SHEETER et al., Appellants, v. JOHN A. LIFUR et al., Defendants; SOUTHERN PACIFIC RAILROAD COMPANY (a Corporation), Respondent. Civ. No. 18950. California Court of Appeals. Second Dist., Div. Two. Oct. 20, 1952. A. G. Van Deventer and Robert G. Bereman for Appellants. C. W. Cornell, E. D. Yeomans and R. P. Reddingius for Respondent. FOX, J. Plaintiffs, w...
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113 Cal. App. 2d 741 (1952) NICOL SMITH, Appellant, v. SIMEON E. SHEFFEY et al., Respondents. Civ. No. 15180. California Court of Appeals. First Dist., Div. One. Oct. 21, 1952. Robert Hayes Smith for Appellant. Simeon E. Sheffey, in pro. per., and Alden Ames for Respondents. WOOD (Fred B.), J. Plaintiff appeals from a judgment that he take nothing, in an action brought by him to declare vo...
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Defendant has appealed from the judgment entered upon his conviction of violating section 11500 of the Health and Safety Code, furnishing a marijuana cigarette to one Patricia McGuire, a minor. The principal issues are (1) asserted error in the refusal of certain instructions requested by the defendant, and (2) asserted error in permitting an amendment of the information to add a count charging...
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In the complaint it is alleged that the defendants, except William MeClean and the Santa Monica Escrow Company, were officers and directors of plaintiff corporation from the time of incorporation on January 19, 1948, to March 6, 1950; while said defendants occupied such positions they received $41,500 on behalf of the corporation ; all the defendants conspired among themselves to defraud the plain...
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113 Cal.App.2d 759 (1952) ANNA L. FRERICKS et al., Respondents, v. H. E. SORENSEN et al., Appellants. Civ. No. 19118. California Court of Appeals. Second Dist., Div. Three. Oct. 21, 1952. George L. Hampton for Appellants. Richard C. Fildew for Respondents. SHINN, P. J. The property in controversy in this action is a parcel of land 50.5 feet by 66 feet, being a part of Lot 111, tract 1,000 ...
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This is an appeal by plaintiffs from a judgment denying them relief in their action for an accounting of their alleged interest in the partnership previously entered into between themselves and defendants. The evidence shows that on May 6, 1949, plaintiffs D. C. Hill and his wife and defendants John Hearron, Jr., and wife entered into a partnership agreement for the purpose of growing pota...
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113 Cal. App. 2d 768 (1952) W. P. VIERRA, Appellant, v. C. R. SHAFFER et al., Respondents. Civ. No. 8142. California Court of Appeals. Third Dist. Oct. 22, 1952. Rodin & Nelson and George G. Murry for Appellant. Landra & Silveira for Respondents. VAN DYKE, J. This is an appeal from a judgment rendered in an action brought for declaratory relief wherein the parties to a lease sought a decre...
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pro tern.—This is an appeal by plaintiff from a judgment in favor of defendants in an action brought for the conversion of 11 head of cattle. The complaint was in three counts, alleging the wrongful conversion to their own use by defendants of 11 head of appellant’s cattle, of a reasonable value of $2,200, with an additional $400 claimed as reasonable compensation for efforts expended in pursuit o...
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Herein plaintiff, as a taxpayer, brought action against the board of directors and the treasurer of Modesto Irrigation District, complaining that the defendants had purchased and paid for three large electrical transformers without advertising for bids. A general demurrer was sustained without leave to amend and from the judgment entered thereafter this appeal has been taken. In his complaint, app...
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113 Cal.App.2d 783 (1952) THE PEOPLE, Respondent, v. WILLIAM GEROLD MILTON CARR, JR., Appellant. Crim. No. 2352. California Court of Appeals. Third Dist. Oct. 22, 1952. Frank Loria for Appellant. Edmund G. Brown, Attorney General, and Doris H. Maier, Deputy Attorney General, for Respondent. *785 VAN DYKE, J. Defendant and appellant was accused by information in Stanislaus County of the cri...
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This is an appeal by defendant from his conviction of attempted murder and from the order denying his motion for a new trial. Defendant, his wife and daughter had been living with defendant’s sister and her husband, Mr. and Mrs. Brown. The complaining witness, Brown, had not seen the defendant for approximately two weeks prior to the date of the alleged offense. After writing a note, which is...
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This is an appeal from a judgment entered on a nonsuit. The action is one for personal injuries sustained by appellant in a fall on a sidewalk in San Francisco. The claim, required by law to be filed before suit, contains the statement that the accident occurred on 11. . . *796that certain street known as 18th Avenue, particularly the east sidewalk thereof near the intersection of the east side of...
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Appellant was charged with the crime of robbery and in a second information with conspiring with one Salisbury to commit robbery. One Augustine was charged with the same robbery but not with conspiracy. The three charges were tried together. During the trial Augustine changed his plea to guilty and appeared as a witness for the other defendants. Salisbury and appellant were found guilty of the co...
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Defendant, a licensed physician, was charged in an information with 22 violations of sections 11163 and 11164 of the Health and Safety Code. In October, 1950, defendant moved to reduce the offenses charged in Counts I, VII and XV to misdemeanors under section 11165 of the Health and Safety Code, as lesser included offenses. Upon the granting of this motion, defendant pleaded guilty to said misdem...
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113 Cal.App.2d 808 (1952) ELIZABETH MEYER, Respondent, v. CLARA PORATH et al., Appellants. Civ. No. 8165. California Court of Appeals. Third Dist. Oct. 23, 1952. James A. Starritt for Appellants. L. A. MacNicol for Respondent. VAN DYKE, J. This appeal is taken from an order made by the trial court amending nunc pro tunc its antecedent findings of fact, conclusions of law and judgment. On J...
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pro tern.—This is an appeal from a judgment entered upon a verdict finding appellant guilty of petty theft and burglary. The information upon which appellant was tried and convicted was in two counts, the first count charging him with a violation of section 484 of the Penal Code in that on or about October 29, 1951, in Merced County, he feloniously took a portable Singer sewing machine, the per...
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This proceeding presents the question whether the Superior Court in and for the City and County of San Francisco has jurisdiction in habeas corpus over the person of a minor actually present and residing in Alameda County. Under article VI, section 5 of our Constitution superior courts only have jurisdiction to issue “habeas corpus on petition by or on behalf of any person in actual custody, in th...
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113 Cal. App. 2d 824 (1952) 249 P.2d 318 ANN ARAPAJOLU et al., Petitioners, v. EMMET G. McMENAMIN, as County Clerk, etc., et al., Respondents. Docket No. 15575. Court of Appeals of California, First District, Division Two. October 24, 1952. *825 Farr & Millard for Petitioners. Burr Scott, District Attorney (Monterey), and Joseph A. Stave, Deputy District Attorney, for Respondents. DOOLING, J....
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Defendant Citizens National Trust and Savings Bank of Los Angeles * appeals from an order denying its motion for change of venue from the San Francisco Superior Court to that of Los Angeles County. Question Presented Does title 12, U.S.C.A., section 94, give a national bank, regardless of the California venue laws, the right to have an action against it tried in the county ...
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113 Cal. App. 2d 840 (1952) C. RAY HOLBROOK, Appellant, v. BOARD OF EDUCATION OF THE PALO ALTO UNIFIED SCHOOL DISTRICT et al., Respondents. Civ. No. 15253. California Court of Appeals. First Dist., Div. One. Oct. 27, 1952. McDougall & Fairfax and Daryl H. Pearson for Appellant. Hardy & Carley and Homer B. Thompson for Respondents. WOOD (Fred B.), J. In this proceeding in mandamus p...
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This is an appeal from the judgment. The sole contention on appeal is that, “The defendant’s rights were substantially prejudiced by the comments of the trial judge in the presence of the jury.” Defendant was adjudged guilty by a jury of selling a preparation of heroin in violation of section 11500 of the Health and Safety Code. The facts and trial errors, as they appear in the reporter’s t...
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113 Cal. App. 2d 857 (1952) THE PEOPLE, Respondent, v. BONNIE FALK, Appellant. Crim. No. 4822. California Court of Appeals. Second Dist., Div. One. Oct. 27, 1952. Joseph T. Forno for Appellant. Edmund G. Brown, Attorney General, and Elizabeth Miller, Deputy Attorney General, for Respondent. WHITE, P. J. Defendant was accused in an information filed by the district attorney of Los Angeles C...
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The defendant was charged in Count I with the crime of rape; in Count II with assault with intent to commit rape; in Count III with rape; in Count IY with assault with intent to commit rape;. and in Count Y with assault by means of force likely to produce great bodily injury. The charges involve four different women, the fourth and fifth counts being different charges in connection with the same ...
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Plaintiff appeals from a judgment in favor of defendant, in an action to recover, under the terms of a lease, penalty rentals for holding over. Questions Presented Sufficiency of the evidence to support findings as to £1) an executed oral agreement, (2) waiver and estoppel. Facts The facts are practically undisputed. It is the inferences and conclusions therefrom that are di...
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In a petition to review an order of the trial court adjudging petitioner guilty of contempt it appears that after he had been enjoined from doing certain acts ho was cited-to appear and show cause why he should not be adjudged in contempt because of his continued violation of the injunctive order. In his petition he alleges that the affidavit charging contempt did not affirmatively allege that, p...
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By information appellant Lacy Garland Wheeler and his codefendant were charged with robbing one Joe Ybarra of $360 in currency and a knife valued at $5. After a trial a jury brought in a verdict finding both defendants guilty of robbery of the second degree. From the judgment and the order denying a new trial Lacy Garland Wheeler alone has appealed, and he prosecutes his appeal through counsel oth...
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This is an action on a note given in connection with a real estate transaction. On June 20, 1949, the parties executed a contract providing for the sale of certain real property by the plaintiffs to the defendants “for the sum of $23,000, in currency of the United States.” The contract provided that this purchase price was to be paid “. . . as follows, to wit: $3000 or more dollars to be paid on o...
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This is an appeal from an order overruling objections to a petition for distribution, and from an order of distribution. Leroy F. Williams died on March 14, 1950, leaving an holographic will dated January 18, 1950. This will consisted of one page and purported to dispose of all of his property in California, and in another clause of his property in New Mexico. In due course, the executors fil...
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Respondents move to dismiss an appeal from an order entered on November 8, 1951, denying a petition for the settlement and certification of a statement of the evidence for use on appeal in lieu of a reporter’s transcript. The clerk’s certificate shows that in a proceeding to administer the estate of one Noonan, deceased, a decree of final distribution was entered and appellants filed a notice of a...
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113 Cal.App.2d 901 (1952) WALTER L. HARCOURT, Appellant, v. STOCKTON FOOD PRODUCTS, INC. (a Corporation), Respondent. Civ. No. 8172. California Court of Appeals. Third Dist. Oct. 30, 1952. C. P. Dorr for Appellant. Evans, O'Gara & McGuire for Respondent. PEEK, J. This is an appeal by plaintiff from a judgment in favor of defendant in an action by plaintiff to recover brokerage fees. The ap...
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Plaintiffs, Frye and Smith, Ltd., a corporation, and Roy H. Jasper and Agnes G. Jasper, doing business as Jasper’s Mailing Service and Motor Service and Motor Vehicle Publishing House, with others who have since dismissed, filed their verified complaint in several counts for goods and services rendered, the value thereof, and on open accounts therefor, and had judgment thereon. The several defenda...
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Applicant was convicted by a jury in the Superior Court of San Diego County on a grand jury indictment charging her with conspiracy to commit acts injurious to public morals and in obstructing justice, a felony. The trial judge imposed a prison sentence after denying her application for probation, denied her motion for new trial, and, after hearing had, denied her application for bail and for sta...
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This is a proceeding brought by the State Department of Mental Hygiene pursuant to the provisions of section 6655 of the Welfare and Institutions Code, for an order allowing the claim of the department against the estate of Herman Perl, an incompetent, for accrued and accruing charges for board, care, maintenance, and medical attention furnished to Herman Perl. at Napa State Hospital. After a hear...
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Fred Goldberg was charged with two violations of section 288 of the Penal Code, 1 it being alleged that on August 9,1950, he committed lewd and lascivious acts on Agnes, age 8, and on Patricia, age 11. On the first trial the jury disagreed. On the second trial, the instant one, the jury returned a verdict of not guilty on the count relating to Agnes, but guilty on the count relating to Patricia...
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Respondents move to dismiss the appeal upon two grounds: (1) that the appeal is taken in the names of two minors and not in the name of the guardian ad litem who represented them below and (2) that the notice given to the clerk requesting a clerk’s and reporter’s transcript was not filed with the clerk within 10 days after the appeal was taken, but instead on the 11th day. In the court below ...
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Plaintiffs appeal from a judgment in favor of defendants after trial before a jury in an action to recover for wrongful death. Fads: On October 21, 1947, Fred Covely died as the result of a boom on a crane collapsing and falling upon him. The crane, of which the boom was a part, was leased by defendant Bryce to defendant C.A.B. Construction Company, hereinafter referred to as C.A.B., on a who...
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From a judgment of guilty on four counts of forgery after trial before a jury, defendant appeals. There is also an appeal from the order denying his motion for a new trial. *39 Facts: Defendant forged the name “B. C. Robles” on four different checks, naming Donna M. Nolan as the payee. The payee in turn cashed each of the checks with various merchants in Los Angeles County. At the time the ...
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This appeal is from a judgment in favor of plaintiff on account of personal injuries suffered when he fell from a metal framework over the entrance to defendant’s used car lot in San Jose. The case was tried by the court sitting without a jury. The framework from which plaintiff fell was made of iron pipes 2 or 2% inches in diameter. An upright pipe stood on each side of the entrance to the lot...
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Sarah Williams died on June 24,1948, and respondent, her nephew, filed for probate a will dated August 14, 1944, which named him as executor and left him half, and his sister half, of the estate. A few days later appellant filed for probate a will dated May 11, 1948, which revoked earlier wills, named appellant as executrix, and named Rena Suddeth, a friend, as sole legatee and devisee. Paragra...
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The appeal is from an order denying a motion to set aside a ruling which sustained a to the third amended complaint. The order is not an appealable order (Code Civ. Proc., § 963; Title Ins. & Trust Co. v. California Dev. Co., 159 Cal. 484 [114 P. 838]). The appeal is dismissed. White, P. J., and Doran, J., concurred....
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This appeal is prosecuted by the city of Los Angeles from a judgment against it entered upon the verdict of a jury in an action for damages for personal injuries sustained by plaintiff as the result of a fall on a defective public sidewalk. Appellant city contends that the evidence shows without conflict that plaintiff was guilty of contributory negligence; that the sole proximate cause of her in...
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The appellant’s brief states that “on or about March 13, 1948, plaintiff turned over to her father (George Marion Fuller) money belonging to her amounting to $7,-193.30 in cash on the understanding between them that he was to hold it in trust for her pending the investment thereof. . . . before it was invested he died intestate on April 5, 1948, possessed with the money.” It is also claimed tha...
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In this mandate proceeding petitioners seek to annul the action of the Board of Police Commissioners of the city of Los Angeles revoking their junk dealer’s permit, which authorized them to carry on the scrap metal business. The trial court denied them any relief. They appeal from that judgment. On June 12, 1950, the board cited petitioners to show cause why said permit should not be revoked up...
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As a result of proceedings under the Juvenile Court Law, begun by petition of the probation officer of San Joaquin County, charging that Ronald G. Magnuson, 17 years of age, came within the provisions of subdivisions (b) and (m) of section 700 of the Welfare and Institutions Code, said minor was, on December 21, 1951, adjudged to be a ward of the juvenile court. It was ordered that he be remove...
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By a jury verdict, plaintiff and respondent was awarded a judgment against defendants and appellants for $3,000, for injuries she received on March 16, 1949, from a fall by slipping on the waxed asphalt tile floor of the reception hall in new medical offices opened by defendant doctors (doing business as Bakersfield Medical Group, a co-partnership) a few weeks before the accident. The court den...
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Petition by the employer and its insurance carriers to review an award of the Industrial Accident Commission to John T. Porter, employee. *85 Questions Presented The main question presented is whether the Industrial Accident Commission had jurisdiction to handle this claim, which question, in turn, depends upon the solution of the first four of the following questions: 1. Doe...
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By petition the surviving widow of Andrew T. Jenkins, deceased, sought an order setting apart a parcel of alleged community property as a homestead for her use. The executor of decedent’s last will filed objections on the ground that said parcel of real estate was the separate property of decedent and not community property, as alleged. The court found that the realty was the separate property ...
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Appeal from an order setting aside a default and the judgment entered thereon, and from an order refusing to vacate the order setting aside the default and judgment. This action to recover $20,000 as a real estate broker’s commission was commenced on July 1, 1948. Plaintiff is the assignee of the broker, Alden B. Coyne. The defendants-named in the complaint were Ross W. Córtese, M. H. Bers...
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Appeal by defendant William M. Graham, also known as William R. J. Graham, from a judgment on a promissory note in favor of plaintiff. The complaint was divided into three causes of action. The first named only the appellant as a defendant and alleged the execution of a $6,000 promissory note by that defendant, and its delivery by him to the plaintiff, on November 15,1949; that by its terms it was...
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Defendant Mistriel was accused in two counts, and defendant Lawson was accused in one count, of violating section 11500 of the Health and Safety Code in that they unlawfully had in their possession flowering tops and leaves of Indian Hemp (cannabis sativa). Each defendant pleaded not guilty. Lawson admitted an allegation in the information that he had been convicted previously of a felony. Trial ...
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By his action plaintiff sought to recover damages for the breach by defendant of an oral contract to purchase, in bottle form, four carloads of wine. The jury returned a verdict in plaintiff’s favor, and judgment was accordingly entered. Defendant’s motions for nonsuit, for *114 judgment notwithstanding the verdict, and for a new trial were denied. He has now appealed, contending (1) that this ...
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Plaintiff Helen Gromeeko has appealed from three.orders made in this action for- divorce: (1) an order terminating an order which required defendant Andrew S. Gromeeko to pay plaintiff for her support, counsel fees and court costs pending the action; (2) an order which denied plaintiff’s motion for an order directing defendant to give and complete his deposition; and (3) an order which denied her...
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Plaintiff leased from defendants a ground floor store for a sandwich, grocery, or soft drink business, for the term of three years, commencing May 1,1947. Claiming that he had been evicted during the term of the lease, plaintiff brought this action for damagés allegedly caused thereby. The trial court found: (1) that plaintiff was evicted and compelled to and did abandon and give up posses...
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This appeal is from a judgment awarding damages for injury to plaintiffs’ property as the result of flooding and the deposit of detritus and debris thereon. Plaintiffs’ lands are situate in the city of San Bafael and comprise about 3 acres highly improved with drives, gardens, swimming pool and a dwelling. They had lived in this home for 17 years prior to the flooding. The lands of Paoli lie ad...
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In this action the surviving husband and the children of Ramona Chacon recovered a judgment for damages for her death which was found to have been caused by the negligence of defendant Lonnie Austin in the operation of his automobile. Deceased was struck in or near the east crosswalk of the intersection of Fiekett Street, a north and south street, and East Fourth Street, an east and west street, i...
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Petitioner seeks a writ of prohibition to restrain the Superior Court of the County of Los Angeles from taking any further proceedings in an action entitled “Harriet Tasoff and Lloyd A. Tasoff v. H. Daniel Weisfeld,” No. 579348, until H. Daniel Weisfeld, the defendant in that action, has been served with process in the manner prescribed by law. Harriet Tasoff and Lloyd A. Tasoff, at all pe...
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Moe Marty Shannon, Joseph George Shannon and Theresa N. Tezze, were charged by information with three offenses of burglary. After pleas of not guilty were entered they came on for trial. In a trial to the court witnesses were sworn and testified on behalf of the People. Defendants offered and the court admitted evidence in their behalf. Defendants were acquitted as to counts two and three of the ...
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Defendants have appealed from an order “postponing the date of trial of the . . . action and ordering these defendants to pay plaintiffs’ costs incurred as a result of said postponement,” and from an order denying defendants’ motion to tax costs. The record shows that the action was set for trial on June 12, 1951. On that date one of the attorneys for defendants made a motion for postponement b...
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This action involves the rights of the parties with respect to the use of a small pipeline. The Joughins and the Wests are adjoining landowners, each owning several sections of grazing land, a part of the land of each being riparian to a small creek. Under some oral agreement the defendants, in 1941, constructed diversion works and installed the pipeline for the purpose of taking water from this c...
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The decisive question in this case is whether oral misrepresentations alleged to have been made by the cross-defendants for their own benefit and not that of a third person to induce the loan of money to such third person are or are not actionable in view of a statute of this state which provides that evidence with respect to oral misrepresentations as to the credit of a third person are not admi...
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Defendant has appealed from a judgment entered against him for the recovery of money and also from an order denying his motion under section 473 of the Code of Civil Procedure to vacate the judgment on the grounds that it was taken against him through his mistake, inadvertence, surprise and excusable neglect. The complaint herein, filed in September, 1947, was based upon a promissory note execu...
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From an order allowing defendant temporary alimony for the benefit of herself and an alleged minor child, plaintiff appeals. Facts: Plaintiff filed a complaint for divorce from defendant on September 21, 1949. April 28, 1950, he filed a supplemental complaint which differed only from the original complaint as to the date of separation of the parties. Both pleadings alleged there were no children o...
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Appeal by plaintiff from a judgment of nonsuit. Plaintiff filed this action to recover damages for the wrongful death of her husband. On October 27, 1948, about 11 a. m., he was driving a truck and trailer loaded with oil well pipe. The vehicle left the road opposite a point where the *180 defendant Kirk had parked his ear, entered a plowed field and came to a sudden stop, with the result tha...
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This is an appeal by plaintiff from an order denying plaintiff’s motion to set aside nonsuit and to reopen cause and for consent to file amendment to pleadings. The factual situation as disclosed by the record is as follows: Plaintiff commenced an action against defendant upon a promissory note executed by defendant to one Catalina S. Cruz for the sum of $5,400. Tlie complaint alleged the cor...
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George D. Knight, now deceased, was injured in an accident. He brought an action against Abraham L. Briskman, the driver of the truck that collided with his car, and Robert H. Winter, the driver of another truck that was involved in the events immediately preceding the accident. The Pacific Truck Service Corporation, employer of Winter, was also joined as a defendant. The jury brought in a verd...
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Appellant presented a creditor’s claim to the executrix of the will of Frank A. Girard for money advanced in the sum of $51,771.49. The claim was allowed and approved by the executrix on March 10, 1950, and by the probate judge on March 14,1950, for the full amount claimed. It was ordered paid by an order of the probate judge made *204 and entered on October 20, 1950, and the princ...
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This is an action brought to fix and determine the boundary line between farm land owned by plaintiffs in section 5 and adjacent land owned by defendants in section 4, all in township 15 south, range 23 east, M.D.B & M. All property here involved lies north of the Kings River, which flows in an easterly direction across these sections. The section line between the sections is the boundary line in ...
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The 1949 Legislature enacted the “Alternative method of distribution of tax levies and collections and of tax sale proceeds” (Stats. 1949, ch. 1370, p. 2386; Rev. & Tax. Code, §§ 4701-4716). Its purpose as section 4701 declares is “to provide an alternative procedure for the distribution of property tax levies on the secured roll made by counties on their own behalf or as the tax-levying and tax-c...
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Harold and Ruth Crews, husband and wife, were tried and convicted of the unlawful possession of heroin in violation of section 11500 of the Health and Safety Code. Harold was sentenced to the state penitentiary and Ruth to the state institution for women. Harold alone appeals from the judgment and from the order denying his motion for a new trial. Two police officers broke into the living quart...
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The present appeal is from a judgment canceling on the ground of fraud, a real estate transaction between the parties whereby Robert B. Graves and wife, respondents herein, purportedly purchased from the appellant Smolicz certain real estate on Sunset Boulevard in Los Angeles referred to as Parcel II, and adjoining Parcel I owned by respondents. On July 19, 1949, the parties opened an escrow for t...
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Plaintiff and defendant were married in 1940. Four children were issue of this marriage. In February, 1949, they agreed to live separate and apart and went to attorney Leslie to prepare an agreement settling their property rights and making provision for the support of plaintiff and their children. Such agreement was executed by the parties on March 24, 1949. It provided, among other things, for ...
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The sole question on this appeal by plaintiffs from a judgment in favor of defendant in an action for rescis *240 sion on the ground of fraud and misrepresentation is the sufficiency of the evidence to support the findings and judgment. Facts The action results from the exchange of an apartment building in San Francisco owned by plaintiffs for a motel at Pismo Beach owned...
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Appeal from an order granting a new trial after judgment entered on a verdict for defendant. The notice of intention to move for a new trial named as *250 grounds of the motion all of the causes specified in section 657 of the Code of Civil Procedure except excessive damages. There is no contention here, however, that any cause was well taken except the insufficiency of the evidence to sustai...
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Plaintiff Winifred W. Cameron appeals from an order dismissing the action for failure to diligently prosecute it after remittitur was filed reversing a. former judgment in her favor. In June, 1941, plaintiff filed an action for separate maintenance against defendant. A final decree of divorce was entered February 18, 1943, on an amended complaint. A property settlement agreement had been entered ...
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Appeal by Margaret Irene Welfer from an order denying her petition for appointment as guardian of the estate of Richard Carew Welfer, a minor aged 15 *264 years, and appointing Ida R. Welfer as guardian of the estate of the minor. The sole estate of the minor consists of part of the proceeds of an insurance policy upon the life of his deceased father, Clarence R. Welfer, in wh...
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This is an action for damages for injuries sustained by the plaintiff in a collision between an au*267tomobile driven by her brother, and a truck belonging to the corporate defendant and driven by the defendant Gonzales. The collision occurred at 10:15 a. m. at the intersection of “E” Street and Biola Avenue, in Biola, Fresno County. Biola Avenue is the main north and south highway and has a black...
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E. S. Morris has appealed from a judgment of the superior court which denied his petition for a peremptory writ to prohibit the municipal court from further proceeding in an action against him upon a complaint filed February 20, 1950. The complaint charged three violations of section 26286 of the Health and Safety Code, the dissemination of false advertisements of drugs. The judgment was e...
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This appeal is prosecuted by defendant from a judgment of conviction for violation of section 11500 of the Health and Safety Code rendered against him after trial by the court sitting without a jury. Since appellant contends that the evidence is insufficient to support his conviction, and also maintains that the corpus delicti was not established prior to the admission of his extrajudicial conv...
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This is an appeal from the judgment. Defendant was charged with murder. A jury was waived and the case submitted on the transcript of the preliminary hearing. “The only testimony given at the trial was that given by defendant Jack Wayne Shipman, on his own behalf.” Defendant was adjudged guilty of manslaughter and a request for leave to file an application for probation was granted. At the hearing...
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After trial before the court, a jury having been waived, defendant was found guilty of the crime of violation of section 11500 of the Health and Safety Code of the State of California, a felony, in that on May 31, 1951, he unlawfully had in his possession “flowering tops and leaves of Indian Hemp (Cannabis sativa),” commonly referred to as marijuana. He has appealed from the judgment of convict...
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Defendant was found guilty by a jury of the crime of abortion on two counts. He appeals from the ensuing judgment and the order denying his motion for a new trial. On January 20, 1951, the complaining witness, Joan, accompanied by one Jacobson, visited the office of Dr. Clark for the purpose of having a physical examination. The doctor determined she was three months pregnant. Thereafter Jacobs...
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Through his father as guardian ad litem, plaintiff Thomas B. Rickey II, brought this action against Mr. and Mrs. Kardassakis for injuries received by him when struck by an automobile driven by Mrs. Kardassakis. The defendants denied the allegations of the complaint and pleaded, as a special defense, that the accident was unavoidable. The jury specifically found that the defendants were “not neg...
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December 30, 1941, a final decree of divorce was rendered awarding plaintiff Dorraine Roy the custody of the minor daughter of the parties and ordering *298 defendant Ralph S. Roy to pay plaintiff $50 a month for the support. of the ■ daughter. Defendant voluntarily increased the amount to $60 a month, commencing June 1, 1948. October 13, 1950, the trial court entered a minute order directing...
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Plaintiffs appeal from a judgment in favor of defendants holding that the term of a certain lease had been extended. Question Presented Was the term "of the lease extended 1 Record Plaintiffs brought an action for declaratory relief to determine primarily if defendant Orville Jones was entitled to remain in the leased premises. Defendant Alfred Williams was alleged to be Jones’ manager ...
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Defendant, Edward Mimms, was charged with two counts of sale and one count of possession of narcotics in violation of section 11500 of the Health and Safety Code. At his trial, one of the counts charging an unlawful sale was dismissed. He was convicted, after jury verdicts, of the two remaining counts, and judgment was entered accordingly. He appeals, in propria persona, from the judgment and fro...
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Plaintiffs brought an action to recover the sum of $3,500 paid by them for the purchase of capital stock of the defendant Antelope Mining Corporation. This appeal is from the judgment, entered after trial before the court, against defendant corporation and W. B. Stevens and Frank L. DeWolf, directors thereof. Plaintiffs alleged that the defendant corporation had been granted a permit by the Com...
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Respondent was awarded judgment against appellants on eight counts for eight commissions for sales *324of real properties. The findings recite that the sales were made pursuant to respondent’s employment by appellants. The grounds for appeal are that (1) the evidence does not support the findings that appellants by writing authorized respondent to sell the properties; (2) the purported authorizati...
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Respondent Director of Corrections filed with the State Personnel Board a complaint charging appellant, who held a civil service position as prison canteen manager of Folsom State Prison, with the following: 1. Failure to cancel Folsom Prison canteen coupons; 2. Knowingly allowing his wife to accept a gift from an inmate of Folsom Prison; 3. Knowingly receiving money from the mot...
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This is just another appeal in that large category of appeals, wholly devoid of merit, which come to this court for decision. The appellant, as plaintiff below, instituted two actions, one against the Hollywood Turf Club and the other against the Los Angeles Turf Club, Inc., which he submits for decision on consolidated briefs. On January 31, 1946, plaintiff after having purchased a ticket...
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Here is the record of an unfortunate episode in the life of Jacob Rubin. He was a pedestrian, .52 years of age at 9:15 p. m. on March 2, 1949. While in the act of crossing Alvarado Street, a north-south thoroughfare in Los Angeles, he was run down by appellant. The latter, driving westerly on 12th Street, came to a stop at Alvarado. It was dark; the streets were paved, wet and sleek. As respondent...
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In February, 1946, Idella M. Nicholas and her husband, respondent herein, terminated their community interest in certain property and executed a writing to evidence their agreement. All the community property of substantial value was conveyed to Idella as her own separate estate with the agreement that the income therefrom was sufficient to provide support for the children and that no payments fo...
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Having been convicted in August, 1950, of possessing a preparation of heroin and placed on probation, appellant was again accused of having committed the same offense in May, 1951. Following conviction, he was denied probation. He was thereupon sentenced to the state prison and at the same time his first probation was revoked and for the first conviction he was sentenced for a term to run concu...
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This is an action to recover the purchase price of 11 carloads of lumber sold and delivered by plaintiff to defendant pursuant to a written contract. Defendant filed a counterclaim and cross-complaint in which he seeks to recover from plaintiff the sum of $77,438.01, which he alleges he overpaid in freight charges on a total of 410 cars of lumber shipped to him under the contract. From a judgment ...
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Plaintiff brought an action to recover damages for personal injuries sustained on June 21, 1944, as a result of the alleged negligent operation of an automobile operated by defendant Wagnon. It was alleged that the automobile was under the control of defendant Marshall, and owned by defendant Clark; and that Marshall was operating the automobile “with the knowledge, consent, permission and author...
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The plaintiff, respondent herein, recovered a judgment of $10,000, entered upon a verdict of a jury, for personal injuries received on December 19, 1949; alleged to have been caused by the negligent operation of a gravel truck driven by the defendant Dana Sible and owned by the defendant Slosson, and resulting from a collision between the truck and plaintiff’s automobile. There was a cross-complai...
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The notice of appeal is as follows: “I hereby give Notice to the District Court of Appeals from the denial of the Motion to Certify my above case for Investigation and re-hearing to the Probation Dept. From the denial of the motion to suspend Proceedings for the purpose of a Sex Psychopathy Hearing, from a denial of the appointments of Psyehy, and from a denial of all other requests and Motions by...
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The answer to the sole question upon this appeal depends upon the meaning of “book value” as used in a by-law of the defendant corporation. The by-law requires the holder of any of the corporate shares, desiring to sell them, first to offer them to the corporation ‘ ‘ at the net book value of the assets, that is, plant investment, inventories, accounts receivable, cash and other assets, less de...
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On June 28, 1949, plaintiff filed her action for divorce against defendant on the ground of extreme cruelty. The complaint alleged that the community property included two parcels of realty. The answer denied the cruelty and also the community character of the realty, alleging that it was held in joint tenancy. Defendant filed a cross-complaint for divorce on the ground of extreme cruelty which w...
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Attachment was levied upon certain properties of defendant corporation, at the instance of plaintiff corporation. Plaintiff appeals from an order dissolving the attachment in part. There were four counts in the complaint. The order dissolving the attachment released all property except $2,000 cash. Total demands against defendant in the first and fourth counts do not exceed this amount. So no poin...
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This is a petition for a writ of mandate to restrain respondents as members of the State Board of Pharmacy from enforcing certain regulations and orders against the petitioner. We granted the alternative writ, and appointed a referee. Findings were made by the referee which we adopt. This court issued its decision on February 8, 1952. A rehearing was granted on March 7, 1952. The matter is agai...
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Plaintiff sought return of certain moneys paid for an interest in a cannery. From a judgment in favor of defendant, plaintiff appeals, on the main ground of insufficiency of evidence. The correctness of the findings is also attacked. Evidence Talcing, as we are required to do, the evidence, and the reasonable inferences therefrom, most strongly in favor of defendant, there is substantial evid...
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Plaintiff, Maxine B. Dow, is the widow of Edgar Laurence Dow, and the administratrix of his estate. In her representative capacity, on December 6, 1949, she brought this action against the River Farms Company of California to recover from it the sum of $50,000, alleging that the corporation had promised and agreed but failed to pay that sum to her husband. The corporation admitted that it had o...
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Appellant Robinson, Robert Walden and Richard Walden were charged in an information filed in Solano County, with the unlawful possession of marijuana, in violation of section 11500 of the Health and Safety Code. The two Waldens pleaded guilty. Robinson was convicted by a jury, and now appeals from the judgment which followed. The contentions of appellant urged as grounds for reversal are that t...
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This is a suit for damages for breach of a contract to convey a residential property. The defendant savings and loan association, the appellant, contended in the lower court, as it likewise contends here, (1) that its escrow instructions—which together with the instructions signed by plaintiffs comprised the written contract between the parties—were not binding upon it as they were signed ...
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The complaint in this case was for overcharge of rent, based upon' the provisions of the Federal Housing and Rent Act of 1947. Plaintiff demanded trebled damages for rent alleged to have been wrongfully and maliciously collected by defendant, for attorney’s fees and costs. October 15, 1947 plaintiff and defendant entered into a written lease of a seven-room furnished house, with double garage and ...
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In 1924, a real estate promotion was commenced by a group of real estate operators who had organized, in August, 1924, a corporation known as “Frazier Mountain Park and Fisheries Company, Inc.” This corporation secured about 800 acres of real property for subdivision purposes lying to the west of United States Highway 99, approximately on the borderline between Kern County and Ventura County, i...
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Plaintiff brought this action against defendants for injuries sustained as a result of an automobile accident at the intersection of Nineteenth and A Streets in the city of Bakersfield. Plaintiff, accompanied by a guest, was driving her son’s Plymouth sedan northerly on A Street, in the daytime, on September 19, 1949. Defendant Edna A. Hackney was proceeding alone westerly on Nineteenth Street in...
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On November 25, 1946, defendant was charged with four felony counts, two of burglary and two of robbery. The information further charged him with a prior felony conviction. The record shows that on December 3, 1946, defendant was duly arraigned in the superior court, with his counsel present, presented with a true copy of the information, and that he entered a plea of guilty to the four counts of ...
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By an order made in the juvenile court on November 14,1950, after proceedings regularly had therein, the two children, one of each sex, of appellant father and respondent mother were declared wards of the juvenile court and the custody of said children was awarded to the mother with the right in the father to have said children on alternate week ends and during a part of the summer vacation. An ap...
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From a judgment of guilty of perjury after trial before a jury, defendant appeals. There is also an appeal from the order denying defendant’s motion for a new trial and a purported appeal from the order denying his motion in arrest of judgment. Facts: During the year 1946, Joseph F. Reed was assistant chief of police in the Los Angeles Police Department. The administrative vice squad of the p...
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Defendants Morris and DeGaston were accused of the crimes of abortion and conspiracy to commit an abortion. During the trial by jury the information was dismissed as to Morris, and he was called as a witness by the plaintiff. DeGaston was convicted on both counts. He appeals from the judgments and the order denying his motion for a new trial. Appellant contends that the evidence was insufficien...
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These are consolidated appeals from judgments in favor of defendants which were entered following the sustaining of demurrers to the respective plaintiffs’ complaints without leave to amend. Each complaint contains identical allegations that the State Board of Equalization levied additional assessments on beer made by plaintiffs; that all of said beer was sold for export and was actually exported;...
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This is a proceeding in mandate by petitioner Walter to secure an order of this court directing respondent, the County Clerk of Merced County, to omit from the ballots to be used at the primary election to be held June 3, 1952, the name of John A. Colburn, the real party in interest herein, as a candidate for the- office of judge of the Atwater Judicial District. (A judicial district created by a...
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Two amended informations were filed against appellant, each accusing him of a violation of section 288 Penal Code and alleging a prior conviction under section 288a and another under section 476a Penal Code. Each information related to a different child. Appellant pleaded not guilty to each charge but admitted the prior felony convictions. The cases were consolidated and tried together before a j...
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This is an action to recover the reasonable value of goods, wares and merchandise alleged to have been delivered to the defendant at his request. In a separate cause of action it was alleged that $330 advanced to the defendant at his request was due to the plaintiffs. The answer denied all the material allegations of the complaint. A cross-complaint was also filed alleging that the plaintiffs had...
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Defendant was found guilty by a jury of violation of Séction 270 of the Penal Code in that on or about the 1st day of September, 1951, he did wilfully and unlawfully and without lawful excuse omit to provide necessary food, clothing, shelter, medical attention and other remedial care for two of his minor children. A motion for a new trial was denied and defendant was sentenced to the county jail ...
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This is an action for damages arising out of a collision between a Ford car owned and driven by Alphonse Francis Trelut and a truck owned by Ace Service, Inc., and driven by its employee Kazarian. The accident occurred about 3:30 p. m. on April 27, 1949, at the intersection of Chestnut and South Avenues, about 5 miles southwest of Fresno. Chestnut Avenue runs north and south, and South Ave...
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This is an application for a writ of habeas corpus. It appears that on the night of April 8, 1950, one Wheeler and one Johnson entered a service station in Los Angeles and attempted to hold up the attendants. A patrol officer, who saw the holdup in progress, testified that he saw a third man by a pump. He identified this petitioner as that third man. Johnson fired a shot which struck the patrol of...
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Plaintiff brought this action to recover the value of petroleum products delivered, and used by a gold mining dredge operated in Trinity County. The action was against the defendants individually, and against the defendants doing business as Crescent Gold Dredging Company, a copartnership. The complaint set forth three causes. The first count alleged an oral contract to pay plaintiff the reason...
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H. H. and Ánnie D. Smith own 5.48 acres of land partially fronting on Mission Street and partially fronting on Hillside Boulevard in Daly City, San Mateo County. The city brought an action to condemn a portion of this area for street purposes. The proposed street will cut the Smiths’ property in two. The Smiths, in their answer, claimed $47,040 for the parcel condemned, and $147,560 as severanc...
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Daisy E. Cash, plaintiff and appellant, brought this action for a divorce against Norman V. Cash, defendant and respondent. The trial court granted an interlocutory decree of divorce to Daisy on the ground of cruelty, divided between the parties what it found to be the community property, determined certain property to be the separate property of the respective parties, and provided for payments ...
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This appeal by plaintiff from a judgment entered in favor of defendants raises the single question—is a void emergency clause severable from the other clauses in an ordinance, of a sixth class city ? Pacts There is no conflict as to the facts. Plaintiff brought this taxpayer’s action to test the validity of Ordinance No. 217 adopted by the city council of San Carlos, a municipal corporation o...
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Indicted for murder, the defendant was first tried upon his plea of “not guilty” and was found guilty of murder in the first degree, the jury fixing the penalty as confinement in the state prison for life. He was then tried before the same jury upon his plea of “not guilty by reason of insanity” and was found sane at the time the offense was committed. He moved for a new trial, which motion was h...
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Prom a judgment in favor of plaintiff in an action to recover a commission for services rendered in connection with the sale of a mining mill and equipment and lease of the realty upon which the mill was located, defendant appeals. Fads: Defendant owned a large mining mill together with a 20-year lease on the realty upon which the mill was situated near Barstow, California. He desired to disp...
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This action was instituted to enforce an asserted easement for the discharge of storm waters over appellants’ lands adjacent to the tract held under lease by respondents and for damages to the latter resulting from loss of crops that perished under the waters diverted by appellants from their established course. In 1942 respondents Woo leased from one Raymond Hails about 51 acres of agricultura...
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Defendant, Bennett & Armour, a corporation, appeals from a judgment rendered against it in an action brought by plaintiff F. M. Heffernan (hereinafter called respondent), assignee of Challenge Cream & Butter Association, a corporation, a creditor of Bennett & Layton, Inc., a corporation, to set aside as fraudulent the transfer of certain assets and the payment of $16,000 b...
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The defendants Pierce and Morse were convicted, by the court sitting without a jury, on six counts of grand theft and one of conspiracy to commit those crimes. A motion in arrest of judgment and a motion for a new trial were made and denied. Judgment was not pronounced but proceedings were suspended and defendants were placed on probation. They have appealed from the order denying a new trial and...
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Plaintiff brought this suit for a decree declaring that sections 93.64 and 93.65 of the Electrical Code of Los Angeles (Mun. Code, art. 3, eh. 9, enacted November 12, 1948, effective January 1, 1949) are invalid, and to enjoin their enforcement. Plaintiff had a decree as prayed. Defendants appeal. Section 93.64 1 provides that every person operating as an electrical contractor, ...
Views: 8
Appeal by petitioners from an order denying a peremptory writ to review the action of the Board of Supervisors of the County of Los Angeles in confirming on appeal a decision of the regional planning commission of the county granting a special permit to the county of Los Angeles to operate a refuse dump. Petitioners, each of whom is the owner of improved real property in City Terrace, an uninco...
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Under date of April 1, 1946, there was conveyed to C. H. Rabing, Ella M. Rabing, his wife, Charles Alexander Rabing, a son of the first two named, and Esther Rabing, the son’s wife, in joint tenancy, certain real property in Sutter County. At the same time the grantees executed to their common grantor a promissory note for $51,000, being the balance of the purchase money for the land after the pa...
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Plaintiff, as owner of Lot 31 in Vallejo Farms Subdivision, Township of Vallejo, California, brought this action in quiet title against defendants as owners of the contiguous Lot 32. The controversy involves the location of the boundary between the two lots, and the area in dispute is a strip of ground approximately 20 feet in width. The parties deraign title from a common source; all the deeds i...
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On October 15, 1948, plaintiff and respondent Crane entered into a contract with defendant city of Ukiah, a municipal corporation, whereby Crane undertook, as general contractor, to construct a reservoir for the city. On October 27, 1948, defendant and appellant Whipple and the city entered into a contract whereby he was employed as consulting engineer to furnish and provide all necessary engineer...
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Petitioners (general contractors) seek a writ of mandate to compel respondent A. L. Hilderbrand, as Commissioner of Finance of the City of Fresno, to forthwith draw his purchase order and warrant for the first installment payment on a contract for the erection of two prefabricated all metal aircraft hangar buildings at the Fresno Air Terminal for the city of Fresno. The contract, in writing, wa...
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The defendant was charged with burglary on two counts, and with two prior convictions. A jury found him guilty of second degree burglary on both counts and he was sentenced to prison, the two sentences to run concurrently. He appeals from the judgment and from an order denying his motion for a new trial. On the morning of May 4, 1951, the owner of a hardware store in Fallbrook found that the store...
Views: 4
Appeal by one plaintiff, Ray Brendlinger, from a judgment against two joint plaintiffs and in favor of a single defendant. This is a personal injury action arising out of the collision between two automobiles in San Jose in 1948. The accident happened on Santa Clara Street just directly east of the subway that runs underneath the Southern Pacific railroad tracks. At this point Santa Clara ...
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This is an application for a writ of supersedeas. In an action in the Superior Court of San Mateo County wherein the respondent, husband, sued his wife (petitioner herein), for separate maintenance, an order was made on January 2, 1952, after notice and hearing, requiring her to pay him $75 a month “as temporary alimony until the further order of this court, commencing on the 28th day of D...
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Plaintiff wife prevailed in her action for separate maintenance, in which defendant cross-complained for divorce. Defendant appeals. Among the facts found were the following: The parties had lived together as husband and wife for more than 29 years and have a son, 15 years of age; defendant has been guilty of cruelty as charged; he owns property worth more *664 than $100,000; that all the pro...
Views: 14
By her will Eva Ridenour Dennis disposed" of an estate of some $18,000, her separate property. She held an interlocutory decree of divorce from William A. Dennis, appellant herein, and bequeathed him $3,000. The will made no provision for the payment of funeral expenses. These expenses being unpaid, her executor and appellant were sued and judgment given against them jointly for $563.38 in favor ...
Views: 1
In a representative capacity, plaintiff John J. McKay, secretary-treasurer of Teamsters Union Local 186, brought this action for confirmation of an arbitration award pursuant to Code of Civil Procedure, section 1287. Over defendant’s objections judgment was entered confirming the award, and a writ of execution was issued. Later, on defendant’s motion the writ was quashed. Defendant appeals from...
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Action to quiet title and to determine boundary line between two parcels of land in Tulare County. Plaintiffs Mark Morris and his wife alleged that on February 21, 1947, they acquired property in the southwest quarter of the southeast quarter of section 22, township 21 South, Range 26 East, M.D.B.&M., by deed, which property is *679 described by metes and bounds, and alleged that d...
Views: 0
Defendant appeals from a judgment in favor of plaintiff for $14,693.42 plus interest thereon at 7 per cent per annum from July 31, 1946, and costs. Questions Presented 1. Does the contract for attorney’s fees provide a lien? 2. Were the escrowed bonds those of the corporation? 3. Sufficiency of the findings. 4. Statute of limitations. 5. Rule of damages. Facts This litigation is b...
Views: 14
Appeal by defendant from an adverse judgment in an action for refund of varying amounts of taxes paid under the Bank and Corporations Franchise Tax Act (Stats. 1929, p. 19 as amended; 3 Deering’s Gen. Laws, Act 8488), referred to as the tax act, for the taxable years 1943 and 1944 (income years 1942-1943). The action was brought by 29 plaintiffs. They are either mutual share federal savings and...
Views: 1
This action was brought against appellant county by the surviving widow and children of Walter Anderson who was killed in an automobile accident alleged to have been caused by the defective condition of a county road. The jury returned a verdict in favor of plaintiffs in the amount of $50,000, and judgment was entered in that amount. Defendant’s motion for a new trial was denied. The county has...
Views: 8
Appeal on an agreed statement from orders overruling appellant’s objection to an amended report of the Inheritance Tax Appraiser and fixing inheritance tax. *718 Question Presented Under our Inheritance Tax Law, shall the statutory exemption be deducted from the total clear market value of the property transferred, and the tax then computed on the remainder of such value, or shall the exemp...
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Petitioners appeal from a probate decree determining heirship and that decedent’s estate escheated to the United States. Facts: Marie W. Peters died on or about May 15, 1944. She left a will under the terms of which one third of her *724estate was bequeathed to two legatees who were residents of Germany; the remaining two thirds of the estate was bequeathed to unnamed issue of persons named in the...
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Appeal by plaintiff from an order of dismissal as to defendant United States Metals Corporation for failure to bring the action to trial within five years after the complaint was filed. (Code Civ. Proc., § 583.) The action is to quiet title to mining claims. The complaint was filed August 28, 1945. Plaintiff named two defendants, United States Metals Corporation and O. K. Gilliam. The corp...
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The defendant was charged with an assault by means likely to produce great bodily injury upon one Higgins. A jury found him guilty, and his motion for a new trial was denied. Imposition of sentence was suspended for three years and he was given probation with the condition that he serve six months in the “custody” of the sheriff. He has appealed from the “judgment of conviction” and from the orde...
Views: 4
An interlocutory judgment of divorce in favor of plaintiff wife was entered on May 23, 1950. Thereafter both parties moved for a new trial. By its minute order of September 1, 1950, the trial court denied plaintiff’s motion. In denying defendant's motion, the court, pursuant to section 662, Code of Civil Procedure, modified the judg*739ment by reducing the $750 award of attorney’s fees to plaintif...
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The instant action for wrongful death of plaintiff’s minor son was brought pursuant to the Public Liability Act, sections 53050 and 53051, Government Code. The complaint alleged that on March 6, 1949, defendant city owned and maintained a public beach and playground in the Venice area; that for nine months prior to that date, due to defendant’s negligence a dangerous and defective *742 condit...
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Defendants appeal from an adverse judgment rendered against them in an action for declaratory relief under the provisions of section 1060 of the Code of Civil Procedure, construing a contract of employment entered into between them and plaintiff. The action was predicated upon a contract dated April 16, 1947, wherein it was set forth that plaintiff had been in defendants’ employ for a numb...
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In 1949 the California Legislature added new sections to the Health and Safety Code regulating the sale of horse meat. Section 28007 so enacted, in part provides that labels on canned horse meat for dog food may not use the following terms: "Packed in gravy. ’ ’ Packed with gravy. ’ ’ “Horse meat loaf.” “Horse meat stew.” Plaintiff brought this action in declaratory relief and for injunction, r...
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After demand on, and refusal by, the proper authorities to sue, Iola Galli, as a taxpayer, 1 commenced these actions against the district attorney, the controller and treasurer of the city and county of San Francisco, to recover on behalf of the city the amount of salaries paid to two city and county employees, it being contended that the two employees were hired contrary to the prov...
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Plaintiff appeals from a judgment for the defendant in an action to recover a real estate broker’s commission for obtaining a purchaser of certain real property owned by defendant and her husband in joint tenancy. The trial court found (1) that respondent signed a written deposit receipt agreement to sell the property and to pay appellant a commission of 5 per cent of the sale price, but delive...
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Plaintiff appeals from a judgment for defendant, entered upon the verdict of a jury, in an action for damages for personal injuries sustained by plaintiff when he stepped on and fell through a scaffold erected and maintained by the defendant, Stone and Webster Engineering Corporation. Plaintiff was a workman in the employ of a subcontractor on a building project of which defendant was the general...
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The complaint alleges that plaintiffs, Patricia, aged 8, and Reianne, aged 7, suffered personal injuries as a result of defendant’s negligent operation of an automobile on October 31, 1949, at or near the intersection of Avenue 64 and Crescent Street in Los Angeles. A jury rendered a verdict for the defendant, and plaintiffs’ appeal is from the judgment entered thereon. At the time of the accident...
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Helen Julson brought this action for separate maintenance, charging extreme mental and physical cruelty. *798 Defendant filed a cross-complaint for divorce, with similar allegations. Findings were against plaintiff upon the complaint and the cross-complaint. She appeals from a decree awarding defendant a divorce and dividing the community property. The grounds of appeal are that the finding...
Views: 7
Appeal by defendants Dobbins on the judgment roll in a suit for specific performance brought by the vendors to compel the purchasers to perform a contract for the sale of realty situated in Los Angeles. On February 7, 1950, plaintiffs and defendants Dobbins, referred to as defendants, entered into a contract in writing whereby plaintiffs agreed to sell and defendants agreed to buy a parcel...
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This is a motion to dismiss the appeal. On March 8, 1948, Eva S. Rose as plaintiff obtained an interlocutory decree of divorce from Samuel C. Rose, by which Samuel was ordered to pay Eva $75 a month for the support of their minor daughter, Jacqueline. On April 7, 1950, Eva *813 applied for an increase of the award, for costs, and attorney fees. After a hearing the application was d...
Views: 2
Plaintiffs and appellants herein brought action in claim and delivery and for damages. They complained against defendants George and Lawrence Roberts who have not appealed from the judgment rendered against them, and against Bank of America National Trust and Savings Association, in whose favor the trial court gave judgment. Plaintiffs have appealed from the judgment in favor of the bank and with...
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Action for damages for personal injuries. The jury rendered a verdict in favor of plaintiff for $4,000. From a judgment for defendant notwithstanding the verdict, plaintiff appeals. Question Presented Although the question as to the liability of a landlord towards the employee of a tenant is raised, the main question is whether plaintiff was contributively negligent as a matter of law. Fact...
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In July, 1950, the Board of Pharmacy adopted, as a new rule, regulation numbered 1747 to be a part of the California Administrative Code and Register. 1 The meeting of the board was held December 16, 1949, pursuant to section 29041 of the Health and Safety Code. 2 The first *828 indication to the public of the purpose of the board was contained in a letter of January 17, 1950, which implied...
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It appears petitioners R. C. Brandon and Clive Ferebee are qualified candidates for the office of Judge of the Justice Court of LeGrand Judicial District in Merced County and that each has duly taken all steps required by the Elections Code to entitle him to have his name placed by respondent, the county clerk of said county, on the ballot as candidates for said office at the primary election to b...
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When arrested, May 15, on the ground that he had failed to yield the right of way as he made a left turn at an intersection, the defendant was given a traffic ticket, the “written notice to appear” prescribed by section 739 of the Vehicle Code. Appearing in the trial court on June 6 in response to the notice, the defendant was advised of his constitutional rights, pleaded “not guilty” and his t...
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110 Cal.App.2d Supp. 850 (1952) LOS ANGELES FINANCE COMPANY, Respondent, v. DOMINGO M. FLORES, Appellant. California Court of Appeals. Apr. 22, 1952. Ellery Cuff, Public Defender, for Appellant. A. Joseph Shapiro and A. Arthur Fineshriber for Respondent. STEPHENS, J. [1a] Plaintiff's assignor sold to defendant's wife, for presentation to defendant as a birthday gift, a gold wrist watch for t...
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Defendant appeals from the judgment convicting him of receiving stolen property in violation of section 496bb of the Penal Code, 1 and from the order denying his motion for a new trial. The ease was tried by the court sitting without a jury. Defendant challenges the judgment on the ground of the insufficiency of the evidence. The articles involved are a lady’s handbag which had been stolen fr...
Views: 25
Having been convicted of violating section 6200 of the Government Code 1 appellant made his motion for a new trial. This having been denied (as well 'as his motion in arrest of judgment) the proceedings were suspended and he was placed on probation for three years. His appeal is from the order denying the motion. He grounds his demand for reversal on the insufficiency of the evidence...
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The plaintiff has appealed from the judgment entered upon the sustaining of a general demurrer to plaintiff’s first amended complaint. The controversy involves the rights of a seller of personal property to collect sales tax from the buyer. Appellant is engaged in the manufacture and sale of barges, scows and similar equipment. The State of California, acting through the Board of State Har...
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The plaintiff was injured in an automobile collision which occurred at 8:45 a. m. on September 7, 1950, at the intersection of Monson-Sultana Highway and Sierra Way in Tulare County. The Monson-Sultana Highway runs north and south and is a narrow concrete road normally protected by stop signs at all intersecting roads, including Sierra Way. Sierra Way is an oiled road running east and west, and...
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On March 13, 1951, appellant, as a taxpayer, filed a petition for a writ of mandamus against the Housing Authority of the county of Kern and its executive director to compel them to call an election in the city of Bakersfield to determine whether or not a majority of the electorate of the city approved the development, construction and acquisition of a low-rent housing project therein. Article ...
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111 Cal. App. 2d 53 (1952) HELEN K. BEATTY et al., Respondents, v. OAKLAND SHEET METAL SUPPLY COMPANY (a Corporation), Appellant. Civ. No. 14864. California Court of Appeals. First Dist., Div. Two. May 12, 1952. Morris M. Grupp for Appellant. Brown, Smith & Ferguson and Jacqueline Taber for Respondents. JONES, J. pro tem. This appeal is from a judgment awarding damages in the sum of $1...
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This is an appeal by the defendant in a negligence action held responsible for the injuries suffered by the minor plaintiff, who fell through a window when playing on a pile of furniture and mattresses left near it. Defendant corporation had for many years been owner and operator of the Del Monte Hotel at Monterey, California, which hotel since the end of 1942 had been used by the United States...
Views: 16
Plaintiff and appellant as the assignee of Homn Lumber Company, a partnership, sued defendant for the conversion of six truckloads of lumber. Judgment went for defendant after a trial to the court without a jury. Only five truckloads of lumber are involved on this appeal since the evidence disclosed that the sixth had been delivered to another party. The assignors, hereinafter called Homn,...
Views: 1
This is a motion to dismiss an appeal from an order settling an account and allowing certain fees for extraordinary services. A minute order was entered in the matter on December 21, 1951 and a more formal written order signed by the judge on December 27. The minute order contained no direction for a written order and the movant asserts that under rule 2 (b) (2), Rules on Appeal, the minute order...
Views: 12
Motion to dismiss an appeal taken by defendants from an order made after judgment amending a satisfaction of judgment nunc pro tunc pursuant to the provisions of section 473 of the Civil Code of Procedure. For the purpose of the instant proceeding it will suffice to set forth that a judgment was rendered awarding plaintiff damages as against the national union and granting a peremptory writ of man...
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In an information filed by the District Attorney of Los Angeles County, defendant was accused of the crime of robbery. Three prior convictions on felony charges were alleged. It was also charged that at the time *89 of the commission of the offense charged against him defendant was armed with a deadly weapon, to wit, a .32 automatic pistol. Defendant was duly arraigned and entered his plea of...
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111 Cal. App. 2d 99 (1952) EDWARD A. SHARPE, Respondent, v. ARABIAN AMERICAN OIL COMPANY, Appellant. Civ. No. 18704. California Court of Appeals. Second Dist., Div. Three. May 14, 1952. Lawler, Felix & Hall for Appellant. William P. Crawford and Charles J. Colden for Respondent. SHINN, P. J. Plaintiff was employed in California for a minimum of 24 months' service as tugboat captain in ...
Views: 12
Appellant Booth was convicted by a jury of violation of section 288, Penal Code. He moved for a new trial, which was denied, and he was placed on probation for seven years. He appeals from the order denying his motion for a new trial, claiming error in the instructions. *108 The court gave an instruction reading: “Every person who wilfully and lewdly commits any lewd or lascivious act upon or...
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By his petition for writ of mandate, petitioner Tone represents that he heretofore filed in the superior court a petition for examination of witnesses pursuant to the provisions of sections 2083 to 2089, inclusive, of the Code of Civil Procedure. He sought an order for the examination by deposition of Florabel Muir, Betty Yoight, Elizabeth Cosgriff and Richard Barron, for the purpose of perpetuati...
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This appeal from a judgment granting petitioner a writ of mandate requiring the appellants to pay her a refund of certain moneys deducted from her late husband’s salary as a fireman of the city of Oakland and contributed to the firemen’s relief fund, raises the question of the proper interpretation of section 104 (2) of the Oakland city charter as amended in 1943. Facts There is no di...
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Respondent sued on a promissory note for $2,500 dated August 9, 1947, payable February 9,1948. The answer alleges that the note was obtained through misrepresentation and that the consideration therefor had failed. As a separate defense the answer pleads that the note was given in part payment for 50 shares of stock of Du Bain Furs, Inc., sold by respondent to appellant for $100 a share, and th...
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The respondents, who are sister and brother, sued the appellant, their sister, seeking a decree establishing that she holds the title to a piece of improved real property on 90th Avenue in Elmhurst in trust for respondents and herself in equal shares. The complaint alleges that on August 9, 1938, Louisa M. Govey, the mother of the parties, was the owner of the property and on that day “in relianc...
Views: 1
In this action the plaintiff secured a verdict for $20,000 on account of injuries sustained in falling into the lightwell of an apartment house. The appeal is from the judgment on the verdict. There were three apartments, or flats, in the building, one above the other. Plaintiff rented and occupied the one on the second floor. She had lived in this apartment for about four years preceding ...
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The minor is the son of respondent and his deceased wife. The parents had been divorced, with custody of the minor awarded to his mother. *145Mrs. MacLean died in March, 1950, and on April 17, 1950, respondent was appointed guardian of the person and estate of the minor who was then 13. Mrs. MacLean and appellant were sisters. From the time of respondent’s appointment (and before that) the minor w...
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This appeal was taken from a judgment of conviction on three counts of burglary fixed by the verdicts as second degree, and from an order denying' a new trial. Appellant admitted a prior burglary conviction in 1947 as alleged in the information, on which he served a term of imprisonment. In the instant ease he was sentenced to the penitentiary. All three burglaries were of homes in the Piedmont...
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Defendant was charged in two counts with violation of section 288 of the Penal Code. (Two girls were the alleged victims.) In a trial by jury he was found guilty as to the first count and not guilty as to the second count. Defendant’s motion for a new trial “or in the alternative for modification of judgment [by reducing the offense to a misdemeanor] ’ ’ was denied. A hearing was then had as to t...
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The question involved in this ease is whether the manufacturer-installer of a 521-ton turbine generator unit, which upon installation became an improvement to. the real property of the buyer, is taxable under the Sales and Use Tax Law (Rev. & Tax. Code, §§ 6001-7176) as a seller at retail, or as a consumer of the parts and materials of which the generator was composed. The State Board of Equali...
Views: 1
The defendants appeal from the judgment rendered against them upon the sole ground that it was excessive to the extent of at least $3,480. While appellants concede that there was a substantial conflict in the evidence upon the issues on which the judgment was predicated, nevertheless they contend that the trial court erred in weighing the evidence and hence we should modify the judgment or else o...
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This is an appeal from an order denying a motion for a new trial. Defendant was charged in two counts by information with violating subdivisions 2 and 3 of section 337a of the Penal Code. A jury was waived and the matter submitted, by stipulation, on the preliminary examination transcript. No witnesses appeared. Following the so-called trial the matter was disposed of by the trial judge in ...
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Defendant was indicted on five counts of abortion. At the first trial one count was dismissed and the jury failed to agree on the others, hence a mistrial was ordered. At the second trial the jury brought in verdicts of not guilty as to two counts, but found the defendant guilty on the remaining two (counts II and III). Defendant appeals from the ensuing judgment and the order denying his motion ...
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Appeal by defendants from (1) a judgment which declared invalid the election of the individual defendants to the board of directors of defendant Broadway Federal Savings and Loan Association of Los Angeles, directed that a new election be held, and appointed a master for the purpose of supervising the election proceedings; (2) an order denying their motion for a new trial; and (3) an order deny...
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Plaintiff brought this action against defendant to recover $3,560.81 for the reasonable value of services and material claimed to have been furnished to defendant. The court found that defendant B. B. Breckenridge was indebted to plaintiff individually for $2,514.81 and to him as intervener and as trustee and receiver for B. G. & S. Drilling Company, a copartnership, in the sum of $600. By stipula...
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111 Cal. App. 2d 231 (1952) E. B. LOHR, Petitioner, v. SUPERIOR COURT OF LOS ANGELES COUNTY, Respondent. Civ. No. 18904. California Court of Appeals. Second Dist., Div. Three. May 20, 1952. Reynolds, Painter & Cherniss for Petitioner. Harold W. Kennedy, County Counsel, and William E. Lamoreaux, Deputy County Counsel, for Respondent. Guthrie, Darling & Shattuck for Real Party in Inte...
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The present proceeding is an application for a writ of mandate. The facts are set forth in an agreed statement. The application was filed with the Supreme Court and transferred to this court. Solvang Municipal Improvement District, a public corporation, was created by special act of the Legislature (Stats. 1951, eh. 1635) and was duly organized. Proceedings were had for the issuance of dis...
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By this action in unlawful detainer, plaintiff sought to recover possession of certain real property leased to defendants for a café and cocktail lounge, and rentals therefor alleged to be due and unpaid. Plaintiff and defendant Rempp executed the lease of the premises on December 19,1949, for a term beginning December 20, 1949, and ending March 30, 1956. The rent was $750 per month, in advance, a...
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This is an appeal by defendants from a judgment in favor of the minor plaintiff, Julia Ann McMahon, awarding her damages for injuries sustained when she was struck by an automobile operated by the defendant Betty J. Marshall. The plaintiff was struck as she was crossing Santa Fe Avenue on the south side of 21st Street, in the city of Long Beach, in a marked pedestrian crosswalk. Two vehicles pr...
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Plaintiff brought an action against defendant alleging faulty workmanship in certain structural improvements in relation to the work done upon plaintiff’s residence by defendant in which plaintiff claimed damages in the sum of $1,832.50. Defendant was personally served with summons and complaint on March 23, 1951. He failed to appear. Default, upon application of plaintiff, was entered on April 4...
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The defendant was charged with the murder of his wife on or about April 2, 1951. A jury found him guilty of murder in the first degree, fixing the punishment as life imprisonment, and he has appealed from the judgment. The appellant and the deceased had been married for six years, but separated on February 8, 1951. He remained in their old apartment on College Street and she moved into a one-ro...
Views: 22
From a judgment in favor of defendant after trial before a jury in an action to recover damages for injuries resulting from the alleged negligence of defendant, plaintiff appeals. Viewing the evidence in the light most favorable to defendant (respondent) (Estate of Isenberg, 63 Cal.App.2d 214, 215, 217 [146 P.2d 424]), the record discloses: Plaintiff was a passenger on defe...
Views: 7
From a judgment in favor of plaintiff after trial before the court without a jury in an action to recover damages for breach of a warranty agreement, defendant appeals. Viewing the evidence in the light most favorable to plaintiff (respondent) and pursuant to the rules set forth in Davis v. Stulman, 72 Cal.App.2d 255, 262 [2] [164 P.2d 787] (Fox, J.), the record discloses the following facts: Plai...
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Prom a judgment of guilty of manslaughter after trial before the court without a jury, defendant appeals. The case was submitted to the trial court on the transcript *282 of the testimony taken at the preliminary hearing which disclosed the following facts: About 6 p. m. on the night of May 30, 1951, Mr. and Mrs. Loomis Burlingame went to defendant’s home where the Burlingames, defendant an...
Views: 7
Plaintiffs and respondents, the widow and mother of Vincent T. Figley, deceased, brought action in Solano County to recover damages for his death which they alleged had been negligently caused by defendants and appellants through operation of an airplane on which he was a passenger. It is admitted that he was such passenger and was killed when the plane crashed against a hill in Solano County. Af...
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In a trial without a jury the plaintiff was awarded $3,700 damages for personal injuries. A new trial was denied and the defendants appealed from the judgment. Appellants, mother and son, owned and operated a guest house on Chestnut Street in San Francisco, and on April 29, 1946, respondent became a guest therein at a monthly compensation. On May 17, 1946, at about 6:15 p. m. while descending the ...
Views: 0
This case instituted by a corporation against two of its three directors (Thornburg and Rais) is most unusual in that it was promoted at the instance, and by the vote of Thornburg and that of the third director who not only did not own any stock in the corporation but was Thorn-burg’s personal bookkeeper. In short, Thornburg owned 70 per cent and Rais 30 per cent of the outstanding capital stock....
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These two appeals are taken in a companion case to the case of Thornburgh Construction Co., a corporation, v. College Heights Dev. (18716), this day decided, ante, p. 295 [244 P.2d 735]. In this particular case instituted against Sam Rais and his wife Lois Rais et al., the plaintiffs Edward L. Thornburg and his wife Dorothy M. Thornburg sought a declaration as to the rights, duties and obligations...
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Plaintiff filed an action in the Municipal Court of San Francisco. His complaint was based upon an “open book account” and alleged that defendant became indebted to plaintiff for two motor trucks sold and delivered to defendant, in the sum of $2,000 plus $60 sales tax; that defendant was entitled to a credit of $850 for two automobile tires, leaving a balance due to plaintiff of $1,210. On Novembe...
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This is a petition for a writ of mandamus to compel the Superior Court of Kern County to dismiss an appeal from a justice’s court, based upon section 981a of the Code of Civil Procedure. The petitioner obtained a judgment in the Justice’s Court of the Third Township, County of Kern, in an action for damages arising out of an automobile collision. The defendant’s appeal from that judgment, on qu...
Views: 6
This action was brought by Harry A. Burke, Donald L. Burke, and Hazel E. Stack, the surviving husband and the adult son and adult daughter of Bessie Burke, against the city and county of San Francisco, Edmund Cassidy and Charles Peterson, employees of the city and county, for damages for the death of Bessie Burke resulting from an automobile collision. Included in the complaint was a count for ...
Views: 10
This action was brought by the lessors to recover from their lessee $7,500 rent claimed to be due and unpaid under the terms of a written lease. A nonsuit was granted as to a second cause of action relating to a different subject matter, and no appeal has been taken from that portion of the judgment. The answer pleaded that the covenant to pay rent had been modified, that during the term of the...
Views: 4
111 Cal. App. 2d 337 (1952) THE PEOPLE, Respondent, v. WILLIAM JEROME VAN VALKENBURG, Appellant. Crim. No. 2781. California Court of Appeals. First Dist., Div. One. May 27, 1952. Arthur D. Klang for Appellant. Edmund G. Brown, Attorney General, and Clarence A. Linn, Assistant Attorney General, for Respondent. PETERS, P. J. By an information dated February 11, 1949, William Van Valkenburg, ...
Views: 12
111 Cal. App. 2d 350 (1952) ELEANOR S. PALERMO, Appellant, v. MAC T. PYKE et al., Respondents. Civ. No. 18662. California Court of Appeals. Second Dist., Div. Three. May 27, 1952. Joseph Steel and George Appell for Appellant. William H. Levit and William C. Stein for Respondents. WOOD (Parker), J. In this action for rescission the plaintiff appeals upon the judgment roll from the judgment ...
Views: 0
Defendant Bastone was convicted by the court without a jury of a violation of subdivision 4 of section 337a of the Penal Code, registering bets on the results of horse races or purported horse races. He was sentenced to the county jail, the sentence suspended, and he was granted probation. Pie appeals from the order denying his motion for a new trial. The only error assigned is that the evidence ...
Views: 3
This is an action for an accounting based upon the alleged breach by defendant of the terms of a property settlement agreement entered into by the parties hereto on February 16, 1950, and a subsequent agreement relating thereto dated February 22, 1950. These agreements provided for the division of real and personal property consisting of 320 acres of ranch land, together with the buildings thereon...
Views: 0
In these proceedings, petitioners seek to set aside an order vacating a dismissal filed by the clerk in an action brought in the Superior Court of Orange County and to restrain the trial court from taking any further proceedings in said action. The complaint, for declaratory relief, was filed in Orange County on November 15, 1951. Defendant filed a demurrer *366 thereto and a motion to strike...
Views: 0
Plaintiff has appealed from a judgment entered in favor of defendant city and county of San Francisco, notwithstanding an $85,000 verdict for the plaintiff, in an action for personal injuries resulting from the collision of a city and county police car with a car owned by defendant Melvin E. Garner. Garner appealed from the judgment entered against him, but his appeal has been dismissed at his req...
Views: 2
This appeal by defendant from a judgment in favor of plaintiffs raises primarily the interpretation of the by-laws of defendant corporation as to a stockholder who desires to terminate his connection with the corporation, and the question of whether the monthly payments to working stockholders were solely wages or included dividends. Pacts Defendant is a California corporation engaged...
Views: 0
Appellant, Nancy Cross, appeals from a judgment of the superior court denying her petition for a writ of mandate to restore her to the position of senior personnel technician of Santa Clara County. The basic facts and issue in the case appear from the following oral stipulation entered into by the parties in open court as set out in the settled statement: “The defendants through their attorneys...
Views: 1
Plaintiff sued to quiet title to certain moneys in the possession of a special administrator. A second cause of action for money had and received is not involved in the appeal. A judgment on the pleadings was entered in favor of the plaintiff on the first cause of action. The appellant argues that the judgment on the pleadings *401 was error because disputed issues of fact were raised in the ...
Views: 2
111 Cal. App. 2d 402 (1952) MARY CAROLYN FINE, Appellant, v. EDWARD T. DENNY, Respondent. Civ. No. 14989. California Court of Appeals. First Dist., Div. Two. May 28, 1952. Richard B. Daley and Jones, Lane, Weaver & Daley for Appellant. Melbert B. Adams, Bruce E. Clark and Jack E. Frankel for Respondent. DOOLING, J. Appellant, hereinafter called the mother, and respondent, hereinafter c...
Views: 11
Appellant was convicted on October 2, 1945, of violations of section 288, Penal Code, and of section 702, Welfare and Institutions Code, and is now confined in the state penitentiary. On August 1, 1951, he filed in the superior court in propria persona a petition for a writ of error coram nobis and this appeal is taken from the order of that court denying his petition. The court appointed cou...
Views: 12
Appeal by defendant from a judgment sentencing him to state prison. On April 23, 1936, in a trial to the court defendant was adjudged guilty of the offense of attempted robbery by means of force and fear. He was subject to imprisonment for a period of not less than one nor more than 20 years (Pen. Code, § 664.) Imposition of sentence was suspended and defendant was placed on probation for a term ...
Views: 9
Louis S. Lewis and his wife Ella brought this action against Ras Bjornestad to recover damages for loss suffered by them when a fire damaged the Lakeside Dairy in Vallejo, which they owned and operated. They charged that the fire was caused by the negligence of Bjornestad. Judgment was rendered in their favor and Bjornestad appeals. A few months prior to November 6, 1943, respondents undertook ...
Views: 1
Plaintiff brought this action to recover possession of real property and for damages. It was alleged that plaintiff was the owner and entitled to possession of certain mining property located in Plumas County; and that on or about May 1, 1948, defendants entered upon the premises and ousted the plaintiff therefrom. Damages were asked as follows: $100 per day during the wrongful possession; $50,...
Views: 8
Appellant brought this action against respondents, seeking to recover damages for a libelous publication. At the trial she made proof as follows: Respondents were the proprietors of a public tavern and for the convenience of patrons maintained a toilet room for men on the wall of which there appeared on May 4, 1950, libelous matter indicating that appellant was an unchaste woman who indulged in i...
Views: 9
Plaintiff filed this action against defendants, alleging that said defendants, by reason of their negligent and careless operation of a truck, had damaged a bridge maintained by plaintiff as a part of its public road system. Defendants Phillips and Boswell were served with summons in the county of Nevada and both answered. They denied the allegations of the complaint and alleged contributory negl...
Views: 4
A jury trial in this action for damages for conversion of an automobile resulted in a verdict for plaintiff in the sum of $580.82 compensatory damages, and $2,500 exemplary and punitive damages. Defendants appeal from the judgment entered against them for these amounts. They assert that the evidence was insufficient to support the verdict and judgment and that the court erred in the admission a...
Views: 10
In 1907, Jim Sandrini came to this country from Italy. He accumulated about $10,000. In 1920, he married Dominica Ciapponi, aged 31, a widow with three minor children, Josephine, aged 11, Anna, aged 5, and Charles, aged 3. The two youngest children were adopted by Jim. At that time Dominica possessed personal property of the approximate value of $2,400. Their properties were commingled and ther...
Views: 4
John J. Mitty, Roman Catholic Archbishop of San Francisco, and The Roman Catholic Archbishop of San Francisco, a corporation sole, have appealed from an order of the superior court permitting the petitioner, Amelia Oliveira, to remove the remains of Arthur Martin Terra, Joseph Oliveira, and Frank Martin Terra from St. Mary’s Cemetery, a Roman Catholic cemetery in Oakland, California. This order wa...
Views: 1
Elwood Prior, executor and trustee of the estate of Toney Prior, appeals, in both capacities, from a decree of partial distribution ordering him as executor or as trustee to render a full accounting, and to pay to Barbara Marie Riley her $5,000 legacy, plus 7 per cent simple interest, starting one year after the death of the testator. His basic contentions are that the probate court should have...
Views: 4
Defendants Jose, Carmen and Thomas Rodriguez were accused of violating section 11500 of the Health and Safety Code in that they unlawfully had in their possession flowering tops and leaves of Indian Hemp (cannabis sativa). Thomas Rodriguez admitted an allegation in the information that he had been convicted previously of the crime of violating said section 11500, a felony. Trial by jury was waived...
Views: 0
In an action on three counts (1) for the reasonable value of work done and materials furnished, (2) an open book account, and (3) an account stated, plaintiff recovered judgment on the first two counts in the sum of *477 $1,302.18, against defendants Peden and Salinas Newspapers, Inc. * The last named defendant appeals. Questions Presented 1. Sufficiency of ev...
Views: 1
Contestant beforeprobate appeals from an order admitting the will to probate after a trial to the court sitting without a jury. Contestant is the surviving sister of the testatrix and the proponent and respondent, who is the sole beneficiary and executor of the will, is testatrix’ surviving brother. The testatrix was a spinster with no nearer relatives. On August 22, 1950, testatrix was taken t...
Views: 0
This is a petition for a writ of mandamus asking that an order of the superior court be set aside and that the court be required to take jurisdiction over two foreign corporations. The court has ordered that summons directed to the corporations and served on the Secretary of State be quashed. Apparently this was done on the basis that *492 the two defendants were not doing business...
Views: 13
This appeal is from an order denying defendant’s motion for a new trial. Defendant was tried to a jury on four separate counts charging possession of four distinct varieties of narcotics. Some weeks before the arrest of defendant a drugstore in the city of Santa Clara had been burglarized and a large quantity of narcotics was taken. When the arresting officers entered the home of the defendant he ...
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Plaintiff-husband brought this action for divorce. He alleged that a parcel of realty, to the value of $11,000, located in El Monte, is his separate property and that defendant-wife has a small community interest therein. In her answer and cross-complaint defendant alleged that the parcel is her separate property. Defendant was granted a divorce. The court found that the parcel of realty is commu...
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This action was brought under the provisions of the Public Liability Act of 1923. Plaintiff McAtee was injured when one of the wheels of the automobile in which he was riding ran into a hole in a street in the city of Marysville. The action was tried to a jury which returned a verdict in favor of defendant city and judgment was entered in conformity therewith. The trial court thereafter granted a...
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Respondents operated a motion picture theater in Sacramento. The general manager for that theater was Kay J. Naify and the assistant manager was Nick Yiamkis. While he bore the title of assistant manager, he was described in the testimony as being a general handyman. He testified he did everything in general, was the floor manager and maintenance man. His immediate superior was Naify. The manager...
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Defendants appeal from a judgment in a mandamus proceeding requiring the defendant high school district to pay petitioner her salary as a teacher for the first four and one-half months of the 1950-51 school year. The appeal is on the judgment roll. Petitioner had attained the status of a permanent teacher in the district some years prior to her resignation on June 14, 1946. She was reemplo...
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Ethel Rowe Clayton, respondent herein, claiming to be the widow of Walter Clayton, deceased, filed a petition for the probate of his will, whereupon the appellants herein, nephews of said deceased, filed a contest, alleging that the purported will was not executed by decedent as his last will and testament, that proponent was not the wife of decedent, and that his signature thereto was secured by ...
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Defendant appeals from an order awarding his wife $1,000 per month alimony pendente lite, $2,500 attorney’s fees, and $200 costs. The parties married September 6, 1945. They are the parents of two children, ages two years, and eight months, respectively. It was plaintiff’s third marriage; prior thereto she had been employed either as a model or as a motion picture actress; she had no issue by h...
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This controversy arises out of the admitted encroachment by defendants upon plaintiffs’ property. The judgment of the trial court required defendants to pay plaintiffs the sum of $250 within 20 days and that on compliance therewith defendants would be declared to be the owners of the land in question but in the event of default in such payment that plaintiffs have judgment quieting their title, t...
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This is an appeal by defendant McEwen from a judgment in favor of plaintiff Reynolds in an action arising out of the lease of a sawmill located in Mendocino County. W. A. Thayer, one of the cross-defendants, was the owner of certain real property in said county. The mill in question was located on a one acre parcel of this property. On July 20, 1946, Thayer leased the land together with th...
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The jury awarded plaintiff $11,000 for personal injuries. A new trial was denied upon condition that plaintiff consent to a reduction of the amount to $9,000. Plaintiff consented. Defendant appeals from the judgment. *548 Questions Presented 1. Primarily, the rule of liability to the public of a lessor of a semipublic place. This includes alleged error in giving and refusing ...
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Plaintiff alleged in her complaint that she executed for delivery and put into escrow her promissory note for $26,750, secured by a trust deed on her real property; that by certain transactions in the escrow defendant Barnett Pollack paid her $20,000 only for her note; that the difference of $6,750 between the amount stated in the note and the amount paid was a bonus, contrary to the usury laws o...
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This action arose out of a collision between two automobiles being operated by plaintiff Ben Percin and the defendant. It occurred at about 1:20 a. m. on November 28, 1949, as both ears were traveling southerly on Cahuenga Freeway in Cahuenga Pass near the Highland Avenue cutoff. Cahuenga Freeway merges from a three- to a four-lane highway about a mile north of the place of the collision. These...
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Defendant was accused in count I of violating section 337a, subdivision 2, of the Penal Code, in, that he unlawfully kept and occupied a room with paraphernalia for the purpose of recording bets on horse races. In count II he was accused of violating subdivision 4 of said section, in that, he unlawfully recorded a bet on a horse race. Trial by jury was waived. He was adjudged guilty on both counts...
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The plaintiffs and cross-defendants have appealed from the judgments in favor of the defendants and cross-complainants in an action for damages arising out of a collision between two trucks. Plaintiff Taylor and plaintiffs O’Brien brought this action against defendant Gear and defendant Mentick as Gear’s agent, Taylor claiming damages for personal injuries sustained by him and for damage done to ...
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This is an appeal from a judgment awarding the defendant husband, who will usually be referred to as the defendant, an additional $6,000 for services performed. The plaintiff lived with his wife and daughter Jessie in a house on a 34-acre walnut grove which he owned. He also had a son Gerald, who lived near by. In 1939, he had a hired man to whom he paid $30 per month, plus room and board. In Sept...
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The appeal here is from a $19,000 judgment for plaintiff in a personal injury action. Plaintiff was injured on December 8, 1948, while working in a water pipe line trench when a load of asphalt chunks and other materials fell from the “clamshell” of a power shovel and upon him. The power shovel was being operated by the defendant Sehroff, an employee of defendant Thomas Dray-age and Riggin...
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108 Cal. App. 2d 536 (1952) DANIEL B. HYMES, Respondent, v. CORNA POLLOCK et al., Appellants. Civ. No. 18579. California Court of Appeals. Second Dist., Div. Three. Jan. 4, 1952. C. Oscar Kalenius for Appellants. Arthur C. Fisher for Respondent. WOOD (Parker), J. Plaintiff recovered judgment against defendants Pollock and Story, in a nonjury trial, for damages for personal injuries. Defend...
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As pointed out in my dissent in Pridonoff v. Balokovich (1951), 36 Cal.2d 788, 798 [228 P.2d 6], the United States Supreme Court has not yet passed on the validity of section 48a of the Civil Code of California. The question was raised in Werner v. Southern Cal. etc. Newspapers (1950), 35 Cal.2d 121 [216 P.2d 825,13 A.L.R.2d 252], but after an appeal to the United States Supreme Court was filed (1...
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On May 1, 1947, plaintiff and respondent, as promisee, entered into an agreement with defendants and appellants, as promisors, concerning the use of certain real property which had been conveyed by respondent to appellants. Therein they agreed that in the use of their property they would permit no trees to remain thereon which exceeded a height of 15 feet; that should any tree attain a greater ...
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This is an action for damages for personal injuries. The accident happened on Highway 101 in the city of San Clemente, a short distance west of the intersection of that highway with a city street. At 12:30 a. m. on December 12, 1948, the plaintiff was walking across this highway from the south side to the north side when he was hit by defendant’s automobile, which was going west in the northerly o...
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In this action for rental overcharges it was alleged by plaintiff that defendant was the owner and landlord of housing accommodations described as 1625 Sunset Plaza Drive, in the city of Los Angeles; that on or about October 4, 1948, plaintiff and defendant entered into a written agreement whereby the defendant rented the premises to plaintiff for use as housing accommodations at a rental of $2...
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Plaintiff, E. B. Abbey, as administrator with the will annexed of the estate of Mortimer F. Babcock, deceased, commenced this action in Orange County against Clara T. Schaefer, as executrix of the last will and testament of Cora Cline Babcock, deceased, to quiet title to personal property and to recover the sum of $31,433 alleged to be in the possession of the defendant and listed by her as an as...
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The judgment of which appellant complains was in the amount of $7,085.89 which included an award of $500 punitive damages for wrongful attachment. Appellant, a collection agency, as the assignee of a Mrs. Marion Winner, filed an action in municipal court and in connection therewith secured a writ of attachment, and caused a keeper to be placed in possession of respondent’s gasoline station. Respo...
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Plaintiff-respondent brought this action against defendant-appellant to recover damages for personal injuries sustained as a result of an automobile accident which occurred while plaintiff was riding in an automobile owned and operated by defendant. The jury returned its verdict *563 in favor of appellant and against respondent. Respondent’s motion for a new trial was granted upon the ground of...
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Appellant Josie Goodwin has appealed from judgments which disallowed her third party claims in two separate proceedings to foreclose chattel mortgages on certain equipment owned by The Lost Key Mines., Inc., a corporation, defendant and respondent here, which equipment had been mortgaged by that corporation to respondent’s assignors. The mortgages were executed during the time certain real proper...
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Plaintiff appeals from an order denying her application for alimony, counsel fees, and costs, pending her action for divorce. The question is whether or not the trial court abused its discretion in denying the application. Our review of the evidence convinces us it did not. In her complaint, filed January 24, 1950, appellant stated that the parties were married February 9,1948, and separated ...
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This appeal by defendant from a judgment finding her guilty of possession of marijuana in violation of section 11500 of the Health and Safety Code, and from an order denying a new trial, is without merit. The sole basis of the appeal is the asserted applicabil*583ity of section 11531 of the Health and Safety Code making possession unlawful only when the preparation or compound contains more than t...
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Respondent Ethel Rowe Clayton moves to dismiss the appeal taken by appellants from an order a motion made under section 473 of the Code of Civil Procedure which sought to vacate and set aside an order which admitted a will to probate and granted letters of with will annexed. The ease is governed by the holding of the Supreme Court in Estate of Estrem, 16 Cal.2d 563 [107 P.2d 36], and upon the auth...
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Defendant was accused of violating section 337a, subdivision 3, of the Penal Code, in that he unlawfully received money offered for the purpose of being wagered upon the result of a horse race. Trial by jury was *585 waived. He was adjudged guilty. His motion for a new trial was denied. Probation was granted and execution of sentence was suspended. The notice of appeal recites that he appeals f...
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Defendant appeals from an interlocutory decree which granted plaintiff a divorce on the ground of extreme cruelty, divided the community property, and awarded plaintiff alimony and counsel fees. Appellant bases his appeal upon asserted (1) lack of corroboration of respondent’s testimony concerning the alleged acts of cruelty; (2) erroneous award of support and maintenance to respondent; (3) err...
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by plaintiff from an order recalling a writ of execution and ordering defendant to pay an arrearage of $949.39, accumulated under an order for support, at the rate of $10 a month. On February 17, 1938, plaintiff was granted an interlocutory judgment of divorce from defendant by which he was ordered to pay plaintiff $75 a month for her support and that of minor children. On January 5, 1942, an o...
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David Vickter and Hyman Viekter, doing business as Giant Penny Stores, recovered judgment against Pan Pacific Sales Corporation for $1,035. Of this amount $500 represented a deposit made by plaintiffs on account of merchandise purchased from defendant, and $535 damages for failure to deliver the goods. Defendant appeals. The facts are set forth in a settled statement and in material respects ar...
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Appeal by defendant from an interlocutory judgment of divorce. The divorce was awarded to plaintiff on the ground of extreme cruelty. A postal savings account and a diamond ring were found and adjudged to be the separate property of plaintiff. A parcel of realty, described as Lot 4 in Block 5 of the Williamson Tract, was found to be community property. *607 The court decreed that all communit...
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This is an appeal from a default judgment of the Superior Court of Merced County awarding an interlocutory decree of divorce to respondent, Dolores Lukasik, and *611 also from an order of the court denying appellant’s motion to set aside the judgment and default and permit appellant to file an answer and cross-complaint. The divorce action was commenced on August 21, 1950. The comp...
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Petitioner Ed Gardo filed in this court a petition for a writ of habeas corpus seeking his release from imprisonment in the state penitentiary at Folsom, contending that he was improperly adjudged to be an habitual criminal for the reason that the information insufficiently charged two prior convictions in that it was not specifically alleged that petitioner served time in a state prison upon each...
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Defendant Thompson appeals from a judgment on a verdict of $7,300 in a wrongful death case. Respondent Floreine Galbraith brought the suit for damages for the death of her son Dennis Hermes of whom she had custody under a divorce decree. He was killed in a collision with appellant’s car when he ran into the street in pursuit of a ball. Over and above a general denial defendant pleaded contribut...
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This is a proceeding in which the contest of a will was consolidated for trial with an action to cancel two deeds. Two sets of findings were made by the trial court and two judgments entered. For the purpose of this appeal the findings will be considered as a single set, and the two judgments as but one. (People v. Ocean Shore R., Inc., 22 Cal.App.2d 657 [72 P.2d 167]; East Bay Mun. Utility ...
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This is a proceeding through writ of review whereby it is sought to annul an award of the respondent Industrial Accident Commission. The facts may be summarized as follows: Beaster and Cooper Logging Company was engaged in logging operations in Reeves Canyon, 12 to 15 miles south and west of Willits in Mendocino County. Roland Soward had been in its employ a number of months. He was a mechanic an...
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Appeals by plaintiff (1) from an order vacating an order setting aside default and judgment, and (2) from an order again setting aside the default and judgment. Questions Involved 1. Is the vacated order void? 2. If so, does an appeal from it deprive the trial court of the power to set it aside or to disregard it? 3. Will a mistake of law excuse a default? Record It is neces...
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Appeal by plaintiff from an order dated September 7, 1950, setting aside a default and judgment. As pointed out in our opinion this day filed in Svistunoff v. Svistunoff, No. 14831, ante, p. 638 [239 P.2d 650], this order is void on the face of the record and was properly vacated by the order of October 6th. Therefore, the appeal is moot, and is hereby dismissed. Peters, P. J., and Wood (Fred B.),...
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Plaintiff, a California corporation, filed suit on July 27, 1949, against the defendant, one of its former officers and directors, for the recovery of secret profits alleged to have been received by him. Each of the first three complaints contained but one count. Demurrers thereto having been sustained plaintiff filed its third amended complaint seeking the same relief as before, but in two count...
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The defendant corporation maintains the Pacific Home as a home for elderly people. In 1941 the parties hereto entered into a written contract whereby plaintiff paid defendant $6,050 and defendant accepted her as a life member of the home and agreed to provide her with “room 201 over the dining hall” and with board, laundry and medical care. Plaintiff, who at the time was 65 years of age, thereu...
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This appeal is from a judgment in favor of the defendant James Robert Thompson in an action arising out of an automobile collision, and from the order denying plaintiffs' motion for a new trial. The testimony, viewed in the light most favorable to respondents shows that plaintiffs, while driving north on the Feather River Boulevard at a point a few miles south of the city of Marysville, st...
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Plaintiff, on behalf of himself and other taxpayers of the city of Santa Ana, brought this action against the defendants, city of Santa Ana, a municipal corporation of the fifth class, its mayor, couneilmen, city clerk and city treasurer (hereinafter referred to as defendant city), and against defendants Paul M. Johnson and associates (hereinafter referred to as the Johnsons) to enjoin the defe...
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108 Cal.App.2d 686 (1952) JOHN O. WESTON et al., Appellants, v. WILLIAM E. FOREMAN et al., Respondents. Civ. Nos. 14802, 14825. California Court of Appeals. Jan. 16, 1952. Wagener & Brailsford and Wm. H. Brailsford, Jr., Dreher, McLeod & Bowman and Orlando J. Bowman for Appellants. Harry M. Gross and George Gordon for Respondents. WOOD (Fred B.), J. Plaintiffs appeal from two judgmen...
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In 1944 Harry Dwight Smith was charged with burglary. He pleaded guilty before the then existing Police Court of Oakland. Upon his arraignment in the superior court he again admitted the charge, and the degree of the crime was fixed at burglary in the first degree. He was thereupon sentenced to imprisonment for the term prescribed by law. No appeal was taken. In May of 1951, approximately seven y...
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Plaintiff had a verdict for $8,500 in damages for the death by drowning of his son in an artificial reservoir maintained by the city and county in the area of Golden Gate Park. This reservoir was located on Strawberry Hill which is an island-lilce body of land in the middle of Stow Lake. It was designed to provide an artificial waterfall for the pleasure of the public on Sundays *702 and holida...
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This is an appeal by the Real Estate Commissioner from a judgment granting respondent Manning a peremptory writ of mandate ordering said commissioner to annul his decision and order of suspension of respondent’s license as a real estate broker for a 30-day period and annulling the proposed decision of the hearing officer adopted in said order of the commissioner. Insofar as here relevant, the a...
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On January 18, 1943, Harry C. Hastings employed A. J. Treat as his attorney to represent him in relation to a trust that had been set up by his grandfather and which was then the subject of litigation in an action pending in the superior court in San Francisco. Treat associated appellant Samter as cocounsel in the matter, with the approval and ratification of Hastings, on a contingent basis, coun...
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Defendant was tried to a jury on an indictment in two counts charging murder in the second degree for the killing of one Cavness and in the first degree for the killing of one Greenway. Conviction was had on both counts, the jury recommending a life sentence on the second. He appeals from the judgment and the order denying his motion for a new trial. Appellant does not comply with the rule requ...
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Plaintiff appeals from a judgment that he take nothing by his complaint on an alleged “contract to pay money.” In June, 1948, plaintiff was the holder of a judgment against Kathleen A. Clawson and others in the sum of $8,276.41, which judgment was a lien upon a parcel of real property owned by Mrs. Clawson. This property was sub *725 ject to a deed o£ trust held by defendant, and two deeds of...
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Defendant appeals from a judgment of $300 awarded plaintiff for his services as a real estate appraiser and valuation witness. His contentions are that the evidence does not support the findings and that the findings do not dispose of all the issues. Defendant was the owner of property on Beaudry Avenue in Los Angeles, which was being acquired by the state through condemnation. He employed plai...
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Appellants John N. Purvis, Jerry K. Golightly, and James Russell Grimes were charged jointly with defendants Eugene J. Head and Robert L. McCabe with the crime of feloniously possessing a narcotic, to wit, marijuana. Their ages ranged from 18 to 21 years. A jury trial resulted in a conviction of all five defendants. Appellants appealed. About 9:30 p.m. on April 9, 1951, three police officers we...
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The defendant Troy Raymond Proctor was accused in an information filed by the District Attorney of Orange County of the murder of one Dorothy Stewart Schindler. After the filing of the information, the defendant moved that it “be stricken under Penal Code section 995 on the ground that the defendant was committed without a showing of reasonable or probable cause.” The People appeal from the order...
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In the first of these quiet title actions, plaintiff, William M. Taylor, seeks to quiet title to three parcels of real property in Riverside County. In the second action, plaintiff, Coachella Valley County Water District, seeks to quiet title to real property included in that described as Parcel No. 1 in the first amended complaint in the first action. These actions were tried at the same time an...
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Plaintiff A. C. Helvey brought this action to quiet title to real property situated in Riverside County. The defendant answered and filed a cross-complaint to quiet its title to the same property. Plaintiff appeals from the judgment quieting title in the defendant district. Plaintiff claims title by a quitclaim deed executed to plaintiff by Mary E. Ellsworth and Herbert L. Ellsworth on February 19...
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These two appeals have been consolidated. One (1 Civ. 14756) is from a judgment in favor of the plaintiff in a negligence action, and the other (1 Civ. 14959) from an order after judgment purporting to correct the language of a certain instruction as that instruction appears in the reporter’s transcript. Appeal No. 14756; Facts. Dorothy Freitas lives in Santa Clara and works in Milpitas. Sh...
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The motion by the People to dismiss the appeal in this case presents the single question whether the mere resignation of a school director after his conviction upon the written accusation of a grand jury charging him with willful and corrupt misconduct in office is to be deemed a waiver of his right to a decision on the merits upon his appeal. The accusation charged the appellant, as defendant ...
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Appeal by defendants from a judgment for plaintiffs in an action to recover money paid pursuant to a contract. *772On March 7, 1946, plaintiffs and defendants entered into a contract which read: “Carl Lortz “We agree to build a 12 cavity die to fabricate garden hose nozzles per sample for the sum of $1925.00. We hereby acknowledge receipt of $642.00 down payment. You agree to pay an additional $64...
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This is an appeal by defendant Jack M. Merritt from a judgment for plaintiff Jacob Huyck against Merritt and Lambert Lapacek in an action to recover damages for personal injuries received by Huyck in a collision between an automobile driven by Merritt and one driven by Lapacek, in the latter of which plaintiff was a passenger for hire. A jury before which the case was tried gave judgment for plain...
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This action was brought to foreclose a materialman’s lien. The trial court found that plaintiff-respondent furnished building materials for improving a dwelling house and constructing a fence about the same upon land owned by appellant Barton; that the materials were furnished at the request of defendant Allen; that more than 10 days prior to the filing of the claim of lien appellant had actual...
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This is an action to quiet title to a part of the easterly portion of Lots 6 and 7 of the Rancho Canada de los Alisos, as shown on a recorded map. The property is in a mountainous area of Orange County, and the action was brought for the purpose of settling the easterly boundary line of plaintiffs’ property, which is also the westerly line of defendants’ property. The southern portion of that line...
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The defendant Johnson and one McCoy were jointly charged with burglary and with prior convictions. They admitted the prior convictions, and a jury found them both guilty of second degree burglary. Johnson appeals from the judgment and from,an order denying his motion for a new trial. Sometime after 7 p. m. on May 16, 1951, someone broke into the office of a construction company in San Diego *791an...
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S. D. Orwitz and Jack Orwitz agreed to purchase certain property from the Elliotts for $50,000, paying $5,000 down and the balance to be paid within 30 days. The balance was not paid. The buyers and sellers each claimed the $5,000 deposit. The title company inter- *795 pleaded the claimants. Each claimant cross-complained, claiming the deposit. The trial court found that S. D. and Jack Orwitz w...
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Appellants instituted the action below to recover damages for false representations made by respondents upon a sale of a motel to appellants. The trial court found that the false representations had been made but that appellants had not sustained any damages. This finding, appellants contend, is not sustained by any admissible evidence. In short, appellants contend that respondents’ expert witn...
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Plaintiff brought this action to impress a trust on a parcel of realty, the record title to which is in defendant, and to compel a conveyance thereof or to impose an equitable lien thereon. Judgment was rendered for plaintiff, impressing a trust on the property and decreeing that plaintiff has an equitable lien thereon to the extent of $30,000. Both parties appeal from the judgment. The Honorab...
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Plaintiff appeals from a judgment in favor of defendant Meador in an action for damages arising out of an accident in which plaintiff was injured when she was struck by defendant’s automobile as she was crossing Glen-oaks Boulevard at Colgin Court, in the city of Burbank. The action was first tried to a jury, but after the jury disagreed was submitted to and decided by the trial judge. The cour...
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Appellant, who is 20 years of age, was accused in the Superior Court of Solano County of the crime of burglary to which he pleaded guilty. The degree of the burglary was fixed as of the second degree. Reference followed to the probation officer who reported against the granting of probation. His report was approved by the trial court and probation was denied. Thereupon appellant was *828 senten...
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Appellant, Freddie Nation, has. appealed from the denial by the Superior Court of San Joaquin County of his motion to annul, vacate and set aside the prior judgment of that court sentencing him to imprisonment for the -crime of burglary. To this appeal the respondent has interposed a motion to dismiss upon the grounds that the appeal is irregular, frivolous, sham and without merit. The motion is ...
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Two eminent domain proceedings were filed in Riverside County for the purpose of acquiring real property and abutter’s rights of access owned by appellants and others. People v. Charles A. Thomas et al., No. 47581, was instituted for the purpose of constructing a new limited access freeway, Road VIII-Riv-77-E, where no highway existed before, and People v. ...
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Defendants have appealed from a judgment whereby title to a parcel of real property was quieted in plaintiff and defendants were denied the relief sought in their cross-complaint. In March, 1944, Henrietta J. Haines obtained an interlocutory judgment of divorce from LeRoy A. Haines, plaintiff and respondent herein. With respect to the property here in question the judgment provided, in part, “that...
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This is an appeal from the judgment and order denying a motion for a new trial. The alleged offense was robbery and kidnapping. Appellant Gonzales was found guilty of both counts. The appeal of defendant Rodriguez was dismissed by this court on November 29, 1951, pursuant to the provisions of rule 17, Rules on Appeal. The facts, as recited in respondent’s brief are as follows: “The prosecuting wit...
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Plaintiffs Richard Jermane and his parents, Kenneth R. and Claudia Joan Jermane, appeal from the judgment entered upon a verdict for defendant, in an action for damages for personal injuries sustained by Richard when hit by an automobile driven by the defendant. “Appellant” as used herein refers to Richard unless the context otherwise indicates. Appellant predicates his appeal principally ...
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This is an appeal from an order granting a motion for change of venue. The action was filed in San Francisco. The complaint fails to state the principal or any place of business of the corporate defendant, and fails to allege where the contract was made, where it was to be performed, where the obligation or liability arose,' or where the breach occurred. If the defendant’s principal place ...
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Respondents, citizens of the United States and residents of San Francisco for over nine years, were denied the right to take a civil service examination for playground director solely because they were not graduates of *863 one of the limited number of colleges accredited by the civil service commission. The commission, by rule, has provided that only graduates of certain designate...
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This appeal is taken from a judgment denying a writ of mandate against the county surveyor of Contra Costa County. The appellant and petitioner is the owner of a tract of land in the unincorporated part of that county near Martinez. This property she proposed to subdivide into lots and blocks and to that end filed a tentative map of the proposed subdivision with Contra Costa County Planning Com...
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This appeal is from a judgment in favor of defendants for costs after their demurrer to the amended complaint had been sustained without leave to amend. In 1948 proceedings were commenced under the Improvement Act of 1911 (Sts. & Hy. Code, § 5000 et seq.) for the construction of a sewer system in the neighborhood of San Anselmo. The board employed respondent Oglesby as “engineer of work” o...
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Plaintiff, a polio victim 36 years of age, in an action brought under section 206, Civil Code, recovered judgment against defendant, her father, for $250 per month support. Defendant appeals. Question Presented Did the trial court abuse its discretion? Facts Defendant at the time of trial in 1950 was 63 years old. Prior to 1941 when plaintiff’s mother divorced him, all three lived in affl...
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Defendant appeals from a judgment sentencing him to serve one year in the county jail and denying his request for probation. The appeal presents no legal *9difficulties. Defendant was charged with a violation of section 702 of the Welfare and Institutions Code—contributing to the delinquency of a minor. The minor was a boy of 16 years. Defendant had previously served five and one-half years in the...
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115 Cal.App.2d 10 (1952) SAMUEL BALIAN, Appellant, v. HENRY RAINEY et al., Respondents. Civ. No. 18981. California Court of Appeals. Second Dist., Div. Two. Dec. 22, 1952. John A. White for Appellant. Killion & Clarke for Respondents. FOX, J. By a written agreement executed at Detroit, Michigan, in February, 1946, the parties former a partnership for the purpose of operating a machine ...
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Plaintiff LeRoy D. Owen appeals from a judgment of dismissal after the demurrer of defendant National Container Corporation of California, a corporation, was sustained to the third amended complaint without leave to amend. Plaintiff, a real estate broker, sued for the sum of $15,000 on an express contract to pay for his services, and in a second cause of action for the same amount alleged to be t...
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Petition for writ of mandate to require the superior court to annul certain orders. Petitioners, Lorenzo Del Riccio and Kent Allen, recovered a judgment against Photochart, a corporation, for $10,041.74 in action No. 595352. The judgment was duly entered and *30 no stay of execution was then sought or ordered. A writ of execution was issued and levied upon a bank, in which the defendant had o...
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This action in quo warranto was instituted by the attorney general on the relation of Edward and Lucille Forde, the real parties in interest, to have set aside and declared invalid a certain annexation proceeding of the town of Corte Madera in Marin County, which annexation included .67 of an acre owned by the Fordes. It appears that the town of Larkspur, which on its southerly and e...
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From an order granting defendant’s motion for recall of execution and for annulment of the order for its issuance comes this appeal. Prior to 1939 the parties were husband and wife. On July 26,1938, the wife was awarded an interlocutory decree of divorce based upon substituted service. Notwithstanding the lack of personal service of summons, respondent was ordered to pay $40 per month toward th...
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This is an appeal from two judgments entered upon verdicts in two actions arising from an automobile accident. They were consolidated for trial. The accident occurred on the morning of July 16, 1950, on Highway No. 6 just north of the intersection with Angeles Crest Highway which joins it from the east at a “Y” angle. Immediately prior to the collision, the automobile occupied by appellants was...
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By her last will and its codicils executed in 1951, Lillian E. Schramm created four trusts (A, B, C and D) with her favorite bank as a trustee. After her decease in February, 1952, the bank and Clarence Lizdennis, sole beneficiary under Trust D, were, according to the will, appointed cotrustees of that trust, and the bank as sole executor. Clarence was to receive the total net income of Trust D wh...
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This matter involves only costs on appeal. It comes here after plaintiff had obtained a reversal by the Fourth Appellate District of the judgment in his action with an award of “costs on appeal.” After he had caused an execution to be levied by the sheriff, that officer entered a full satisfaction of the judgment for such costs. Thereupon, plaintiff moved the trial court to vacate the sheriff’s...
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The information herein accuses appellant of the murder of Ann Symington (count I), the murder of Margaret Cramer (count II), and of an assault with a deadly weapon with intent to commit murder upon Paul Mowery Beck (count III). The accused entered pleas of “not guilty as charged in the information” and not guilty by reason of insanity. After a lengthy trial before a jury, verdicts of guilty on al...
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The petition for writ of habeas corpus is denied. On January 29, 1951, petitioner’s terms of imprisonment were fixed by the Adult Authority, Department of Corrections, at five years on each of two counts commencing January 26, 1950, to be served concurrently, with the last three years on parole. At the expiration of two years no proper placement program had been developed for petitioner and it was...
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Appellants William R. Payne and wife brought an action against respondents Lawrence Crossley and wife to set aside a cancellation agreement upon the ground that it was obtained by fraud. Subsequently, respondents Crossley brought an action against appellants Payne for unlawful detainer, ejectment and damages for alleged breach of the lease agreement. The two actions were consolidated for trial and...
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Joseph and Marie Sorci appeal from portions of judgments quieting title against them. *77 Record The sole question presented is the sufficiency of the evidence, based primarily upon the claim that Rosina’s testimony is inherently improbable. Joseph Sorci, also known as Joseph Crisci, is the son of Rosina Crisci. Marie Sorci is his wife. Two actions to quiet title were tried together. One wa...
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Plaintiffs leased certain space in the Spreckels Building, located in the city of Los Angeles, for the purpose of carrying on the jewelry business. Defendants are the owners and lessors. The doors to the demised premises were already equipped with locks, but the lease provided, among other things, that no additional locks would be placed on the doors and no duplicate keys were to be made withou...
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Two appeals by defendant are here consolidated. In No. 19083, defendant appeals from a judgment in favor of plaintiff decreeing that a Kansas decree of divorce, as amended by a nunc pro tuna order, be made a judgment of the superior court of California. In No. 19199, defendant appeals from an order, dated March 28, 1952, made on the recommendation of a commissioner, finding...
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Defendant appeals from a judgment awarding-plaintiff $1,200 plus interest as the reasonable value of services in preparing building plans and specifications. Defendant attempts to appeal from the order denying a new trial. Questions Presented 1. Sufficiency of the evidence, particularly whether plaintiff’s testimony is inherently improbable, thereby taking the appeal out of the confli...
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This is an appeal from an order confirming an award in an arbitration. Appellant is a rating organization licensed by the Insurance Commissioner, with its offices in San Francisco where it has a plant for compiling its printed materials. Respondent union had contracts with two San Francisco employer organizations, i.e., the Employing Printers’ Association and the Printing Trades Conference...
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This is an appeal by plaintiff from a judgment of nonsuit in favor of the California Street Cable Railroad Company, a corporation, and a judgment in favor of the City and County of San Francisco, a municipal corporation, entered upon a jury’s verdict in favor of the defendant city and county. On January 4, 1949, while plaintiff was a fare paying passenger on the cable car of the defendant ...
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This is an appeal by the defendant Busniewski from a decree in equity setting aside and vacating a judgment by default, secured by him against the plaintiff Smith in an earlier action in the superior court of San Mateo County. The plaintiff herein first sought relief in the original action under section 473 of the Code of Civil Procedure. However, the statutory time had expired and relief ...
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From an interlocutory decree of divorce and an award to respondent husband of 8294m of the total properties of the twain accumulated since marriage, the wife appeals. Mr. and Mrs. Margolis were married in 1902. At that time respondent was engaged in the jewelry business in Kansas City. Early in 1920 he was adjudicated a bankrupt and the couple moved to Albuquerque, New Mexico. Respondent there ...
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Plaintiffs appeal from an order granting defendant’s motion for change of the place of trial from the county of Los Angeles to the county of Kern. The action was filed in the county of Los Angeles. Defendant was sued individually and as executor of the estate of Libbie Rudnick, his deceased wife. He was served in both capacities in the county of Kern. The complaint, containing six causes of act...
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The People appeal from an order made after judgment denying their motion to vacate and set aside an order placing defendant on probation and an order recalling the commitment of defendant to state prison. The chronology of events in the court below was as follows: November 17, 1949—defendant pleaded guilty to a violation of Penal Code, section- 288, and applied for probation. December 13, 1...
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By this proceeding the state seeks to forfeit the interests of James Cole, as registered, and the Bank of America as legal owners in a motor vehicle on the ground that it had been used to transport narcotics in violation of section 11500 of the Health and Safety Code. Cole was served and answered but made no appearance at the trial. The lower court forfeited Cole’s interest but refused to forfe...
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Defendants appeal from a judgment in favor of plaintiff after trial before the court without a jury in an action for an accounting of the assets, receipts, disbursements and net profits of a joint venture. There is also a purported appeal from the order denying a new trial. Facts: The evidence being viewed in the light most favorable to plaintiff (respondent) discloses that plaintiff and d...
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Action for declaratory relief and to enjoin sale of real property under a trust deed. Judgment was for defendants and plaintiffs appeal. In September, 1950, plaintiffs inserted an advertisement in the Los Angeles Examiner reading as follows: “$3,000 Bonus—Want $27,000.00 1st T.D. on De Lux 10 units. 6% Interest.” Defendants Aragon, husband and wife, answered the advertisement and on September 28, ...
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This is an original proceeding in mandamus to require the superior court to set aside its order authorizing the taking of depositions to perpetuate testimony. ' Ruth Norris filed an application in the superior court for an order authorizing the examination of witnesses, in which she alleged that: She expects to be a party to an action in the superior court of this state. She expects the adverse pa...
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In a trial to the court Max Rubin was convicted on two counts of violation of section 337a(3) of the Penal Code. Defendant’s motion for a new trial was denied and he appeals from the judgment and the order, attacking the sufficiency of the evidence to. sustain the conviction. Peter Janowiez, a Los Angeles vice squad officer, was the only witness for the People. He testified that on October 25, ...
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William H. Martin, in propria persona, petitioned for a writ of habeas corpus, which was issued. Richard E. Erwin, Esq., member of the Lost Angeles County-Bar Association Committee on Criminal Appeals, was appointed by the court to represent the petitioner. Upon order of the court under rule 60, Rules on Appeal, the files in People v. Martin, No. 35323 in the Superior Court of the County of R...
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115 Cal. App. Supp. 2d 875 (1952) THE PEOPLE, Appellant, v. LILLIE MAE KING, Respondent. California Court of Appeals. Dec. 12, 1952. J. F. DuPaul, City Attorney (San Diego) and Robert T. Sjogren, Deputy City Attorney, for Appellant. Edgar B. Hervey and James Edgar Hervey for Respondent. [115 Cal. App. Supp. 2d 877] GLEN, J. Defendant was charged with violating section 33.1541.1 of the San Di...
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For approximately 20 years plaintiff has been in the business of fitting and selling shoes. In connection therewith he has been manufacturing, recommending and selling corrective shoes and appliances for the human foot, to wit: arch supports. He uses a conventional measuring rule to get the customer’s shoe size, and with a pedograph he takes a footprint “to get the curve of the arch.” With this...
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Plaintiff, by his guardian, brought this action against appellant Republic Indemnity Company of America, and defendants Kurt Hitke and Company, Inc., D. E. Morris, Wilma Oliphant, United Insurers, and Inter-Insurance Exchange, to recover upon plaintiff’s claim that defendants, as agents of appellant corporation, orally insured or agreed to insure to plaintiff, effective as of the date of the or...
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Plaintiff brought this action, under the provisions of the Federal Employers’ Liability Act, United States Code Annotated, title 45, section 51, for the recovery of damages for the wrongful death of her husband. The decedent was a track supervisor employed by defendant and was killed while operating a railway motor car at a crossing near Tustin in Orange County. The action was tried before a ju...
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Petitioner, an attorney at law, was cited for contempt in the above entitled court for certain alleged contemptuous acts committed in the presence of the trial judge, who sentenced petitioner to five days in the county jail. By this writ petitioner seeks to annul the order of contempt. Counsel for the respective parties stipulated in open court in response to the order to show cause here i...
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Hareklea Lekos died September 19, 1948. Her nearest relatives, surviving her, were two sisters, two brothers, and an adopted sister. A purported will was presented for probate by John Angelonides, husband of decedent’s sister Chresanthe. Constantine Vaganas, a brother of decedent, filed a contest, upon five grounds. A nonsuit was granted as to the allegations that the will was not duly executed an...
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This is a proceeding brought by the employer and the insurance carrier to review a decision of the Industrial Accident Commission which awarded R F. Baskin, the employee, compensation for permanent total disability and found his mother and sister, Mrs. Mary Baskin and Mrs. Catherine Dunn, entitled to the reasonable value of nursing services, custodial care and supervision rendered the employee ...
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Defendant, Ruth Howich, leased a duplex apartment in her house to plaintiff, Harriet Frank. The lease was for three years, commencing April 20, 1948, and for a rental of $225 a month. The amount of rent was agreed upon at the suggestion of Mrs. Frank in consideration of the three-year term granted to her in the lease. When the lease was executed Mrs. Frank paid the rent for the first month, and th...
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The order here involved arises out of an action brought by plaintiffs and respondents individually and as representatives of various classes of members of defendant and appellant The Desert Club, for a declaration of their rights in that club, for damages for being deprived of such claimed rights, and for injunctive relief. A preliminary injunction was ordered, based upon the first amended...
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109 Cal.App.2d 67 (1952) Estate of RUPERT G. WEDEMEYER, Deceased. Estate of EMMA W. WEDEMEYER, Deceased. ROLAND C. WEDEMEYER et al., Appellants, v. ETHEL W. SULLIVAN, as Administratrix, etc., Respondent. Civ. No. 14929. California Court of Appeals. First Dist., Div. Two. Jan. 31, 1952. James P. Preovolos for Appellants. Edward J. Lynch for Respondent. NOURSE, P. J. This appeal involves an ...
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Appellant filed, in the court in which he had been tried, a motion to set aside and vacate judgment, which is in the nature of a petition for a writ of error coram nobis. On its denial he appealed. Respondent moved to dismiss the appeal on the ground that appellant’s motion had raised no substantial issue. Both the appeal and the motion to dismiss it were submitted on the same record. On Dece...
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Defendant was charged by information with the crime of issuing a check without sufficient funds, and with two prior felony convictions. The information was filed July 20, 1950. After defendant was arraigned there were a number of continuances. The court’s minutes recite that one of these continuances was granted for the purpose of instituting civil intemperance proceedings against defendant; and ...
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Plaintiffs-respondents brought this action for personal injuries and property damage, suffered in an automobile collision between a Packard automobile operated by the plaintiffs and a Plymouth automobile operated by Margaret Meyers, who was killed in the collision. The Plymouth had been owned by Thomas J. Gartner until his death on December 11, 1946. By his will it was specifically bequeathed to ...
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This case comes before us by reason of an appeal by the State Board of Equalization from a judgment of the superior court directing the issuance of a peremptory writ of mandate ordering that board to deny a “petition of the respondent [therein], Venetian Dining Room & Gardens, Inc., a corporation, for an on sale general liquor license filed in 1950 for the premises described as 2556 North Lake ...
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Appeals from two orders of the superior court, one denying plaintiff a new trial but reopening the case for further proceedings and amending certain findings and portions of the interlocutory judgment; the other, denying defendant’s motion to correct the first order. Question Presented Fundamentally the question is whether under the circumstances of this case, after an interlocutory judgment ...
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Two cases consolidated for trial and appeal. The defendant in ease No. 47384, Dielissen, appeals from a judgment against him and in favor of plaintiff Nance for $2,546.83. In case No. 47414 plaintiff Dielissen appeals from a judgment denying him a recovery against defendant Schmidt. Question Presented Insufficiency of the evidence. The cases are purely factual, the sole issue being what was the or...
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On this appeal from an order dismissing the action for want of prosecution the only question presented is whether the trial court abused its discretion in making the order. The action was commenced on May 13, 1948, in a complaint against Eichler and several John Doe defendants alleging an oral promise of the defendants to answer for the debt of the corporate defendant, Camel, Inc. On June 30, 194...
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Defendant seeks a writ of supersedeas to stay proceedings in this cause pending its appeal from an order of the court below denying its motion for change of venue from El Dorado County to Los Angeles County or Fresno County, which motion was made upon the ground of the convenience of witnesses. (Code Civ. Proc., § 963.) This court issued its order to show cause and its order staying all proceeding...
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Defendants appeal from a judgment restraining them from demanding that plaintiff join the International and Local Union and from enforcing such demand by removing the union shop card from, and picketing, plaintiff’s barbershop. Question Presented Does the constitution of the International offer plaintiff equal membership with other members? If not, does the *124 constitut...
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On December 5, 1947, the defendant insurance company issued its “Jewelry-Fur Floater” insurance policy reciting that it “Does Insure Mrs. Clara Olson Hereinafter called the Assured, Whose address is 649 Jones Street SaN Francisco, California ... to an amount not exceeding Eighteen Thousand Seven Hundred Twenty aNd No/100 Dollars On Jewelry and/or Furs, as per schedule attached, the proper...
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Defendant was convicted in a jury trial of possession of heroin, in violation of section 11500 of the Health and Safety Code. He filed an application for probation which was denied and was sentenced to state prison. He appeals from the judgment. The grounds of appeal are: (1) Insufficiency of the evidence; (2) refusal of instructions on circumstantial evidence; and (3) error in denying the appl...
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This is an appeal by plaintiff wife from a judgment in favor of defendant husband in an action on a promissory note and for money alleged to have been furnished by her to him at his special instance and request. The present action is the third of a series between the parties, in each of which the wife has been represented by different counsel. The first was an action for divorce filed by her on...
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The respondents in this action are the owners of a two-story and basement building at 519 Mission Street in San Francisco. On March 12, 1948, they executed a lease of the entire second floor of the building to the appellant for a term of seven years for the purpose of operating on the premises blueprinting, photo copying and kindred lines of business. The term of the lease is fixed as commencin...
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Appellant and respondent were divorced in March, 1932. Appellant was awarded. custody of their two minor children for whose support respondent was ordered to pay $50 a month. Both parties have since remarried and have continuously resided in San Francisco. During the first five years following the judgment respondent made no payments and, coneededly, was unable to do so. In 1939 respondent opened...
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This is an appeal from an order directing the issuance of a writ of mandate. Respondent, Horme Viglione, claimed that she sustained injuries on the 24th of March, 1949, while she was riding in a streetcar owned and operated by appellant, City and County of San Francisco. On the 1st day of April, 1949, she filed a verified claim against the said city and county for damages in the sum of $10...
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Plaintiff sued on two common counts for goods sold and account stated. After an answer was filed plaintiff moved for summary judgment. This motion was *162 granted. In the first count the plaintiff alleged that it had sold a quantity of meat to the defendant. The admitted truth is that plaintiff sold the meat to the Nicolai' Meat Company and that the defendant acted throughout as the disclosed ...
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The principal question presented for determination upon this appeal from a final judgment of partition, no appeal having been taken from the interlocutory judgment, is whether a trial court can amend its interlocutory judgment which ordered a partition in kind to one for a sale thereof if it appears from the facts recited in the referees’ report that a division in kind cannot be achieved without g...
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In this stockholders’ derivative action, plaintiffs appeal from a judgment of dismissal which was entered upon an order sustaining a demurrer to the first amended complaint without leave to amend. All the allegations of that complaint are upon information and belief, except the allegations in three of the paragraphs hereinafter set forth wherein it is stated that the allegations are not up...
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Appellant Jordan and one Bruce Petree were charged with and convicted of the murder of Robert M. Davidson. The jury fixed the punishment at life imprisonment. No motion for a new trial was made, and Petree has not appealed. The record shows that though the offense was committed October 12, 1949, and the officers of the law were advised of it immediately, no information was filed until May 18, 195...
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The defendant in this action stands charged by an amended information with a violation of section 288 of the Penal Code committed against a 12-year-old school child. He is also charged with prior convictions of grand theft in Missouri and burglary in Idaho. Both prior convictions were admitted but a plea of not guilty was entered *190 to the principal charge. The jury returned a verdict of guil...
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Plaintiffs have appealed from a judgment that they take nothing entered after a demurrer to their amended complaint was sustained without leave to amend. By the first cause of action plaintiffs seek damages for wrongful attachment against defendant collection agency, its assignor, Kathleen M. Ritchie, and defendant casualty eom *195 pany as surety on the undertaking on attachm...
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Defendant Catherine A. McKenna has appealed from a judgment adverse to her in an action to quiet title. In her brief she asserts error by reason of a variance *201 between pleading and proof. Her further contentions on appeal may be best set forth by the following excerpts from her brief: “It appears from the findings of the Court, that this defendant is the owner in fee simpl...
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On June 15, 1950, judgment was rendered adjudging that defendant be punished by imprisonment in the state prison. He had previously been charged with and convicted of three felonies: grand theft, robbery, and a violation of section 503 of the Vehicle Code. In a letter dated June 23, 1950, sent by mail, defendant gave notice of appeal from the judgment. The notice of appeal was received by the c...
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The appeal in this case is from a judgment quieting respondent’s title to an improved lot on Rayburn Street in San Francisco. On April 1, 1949 appellant executed to him a deed of this lot reserving a life estate in herself. The deed was delivered on April 1, and on April 8, respondent had it recorded and has retained it ever since. No consideration was given, making the deed a gift of the ...
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In an information filed by the District Attorney of Los Angeles County defendant was accused in Count I of violating subdivision 1, section 337a of the Penal Code. Count II charged a violation of subdivision 3 of the same code section, while in Count III defendant was charged with a violation of subdivision 6 of the aforesaid Penal Code section. *217 Following the entry of pleas of not guilty...
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Defendants appeal from a judgment restraining them from interfering with plaintiffs’ use of a certain road. Questions Presented 1. Does the complaint state a cause of action ? 2. Is the judgment uncértain and indefinite? 3. Are additional findings necessary? • 4. (1) On a private roadway over which several home owners have rights of ingress and egress may one owner maintain a “Private R...
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Respondent, admittedly a busiiness invitee on premises owned and operated by appellant corporation, suffered personal injuries when his foot went through the floor and was plunged into a tank of hot water beneath it. He commenced an action for damages against appellant, and a jury rendered a verdict in his favor for *235 the sum of $15,000. This appeal is from the judgment entered ...
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This is an action for damages based on the theory that plaintiff’s injuries were caused by the defective condition of a caterpillar tractor, and that the defendants had failed to use due care in keeping the tractor in repair. The answer alleged that plaintiff’s injuries were caused solely by his own negligence and also that he was guilty of contributory negligence, which was the proximate cause...
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This is an appeal from the judgment granting a peremptory writ of mandate to compel the City Council of the City of San Jose to find valid certain protests against the annexation of contiguous territory and to set aside any determination to the contrary. On December 5, 1949, the city council by resolution commenced proceedings to annex territory designated as “Bradley Manor No. 3.” The pro...
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Appeal by plaintiff from a judgment of dismissal in a suit to set aside conveyances of realty. Defendant’s demurrer to the second amended complaint was sustained with leave to amend. Plaintiff declined to amend within the time allowed, hence the judgment. The second amended complaint alleges: 1. Plaintiff is special administrator of the estate of James Cleary who died November 15, 194...
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Appeal by defendant from a judgment quieting title to an undivided half interest in two parcels of realty in plaintiff. The parties were formerly husband and wife. On April 14, 1948, defendant in the present suit, as plaintiff, obtained an interlocutory decree of divorce from plaintiff in the present suit on the ground of desertion after she had defaulted in the action. The wife resided in Mexi...
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Appeal by plaintiffs from a judgment entered on a verdict for defendants in an action for damages (1) for personal injuries sustained by Yvonne Shivers, a minor, and (2) for the wrongful deaths of Roberta Shivers, Appolis Lindsay and Odee Lindsay, children of plaintiffs Norman E. Shivers and Jairlean Lindsay, respectively, as a result of a collision between a truck and trailer driven by defendant...
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Plaintiff and respondent commenced an action against defendant and appellant, the complaint containing two counts: (1) for $1,688.80 as the reasonable value of work, labor and services in the nature of land planing, scraping, ripping and surveying, at the special instance and request of defendant; and (2) upon an open book account for the same amount. Defendant filed an answer denying the mater...
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Defendant was charged with, and entered a plea of guilty to, violating section 332 of the Vehicle Code in that he drove an automobile upon a public highway during a time when his privilege to do so was suspended by the Department of Motor Vehicles. The recommendation of the probation officer was that probation be denied and that defendant be fined $300 or serve 90 days in jail. The judge denied...
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This is an appeal from an order granting appellant a new trial to the extent that the order limits the new trial to the taking of the testimony of one witness only. It appears that the respondent brought suit against appellant for the sum of $2,187, the purchase price of merchandise purchased by appellant. Appellant admitted the purchase but denied any indebtedness, alleging a counterclaim of $8,9...
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Appellant, an heir-at-law of Jerome Hurwitz, deceased, seeks reversal of an order of the superior court, sitting in probate, directing partial distribution of the estate *303 of said decedent to certain charities pursuant to the following provision contained in the will of decedent: “The entire balance of my estate I leave to charity and the recipient of this charity shall be ...
Views: 2
Defendant was charged in two counts with violations of subdivisions 1 and 6 of section 337a of the Penal Code, to wit: pool selling and bookmaking; and making, offering and accepting bets on horse races, respectively. Upon arraignment defendant’s motion to set aside the information under section 995 of the Penal Code was denied; he entered his plea of not guilty, waived a jury trial and the cau...
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By the judgment herein Eobert Marks was “enjoined and restrained until November 1, 1952, from engaging in the photo finishing business in the County of Los Angeles.” Atlas Photographic Industries, Inc. was enjoined from employing Marks “as an officer, agent or otherwise” and from servicing specified photographic accounts in Los Angeles County. Both have appealed on the grounds that Mr. Marks’ c...
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Respondent is the inventor and designer of a house trailer known as the “Sport King.” On September 27, 1946, by a writing he licensed appellant to manufacture and sell such trailer for a period of six months—expiring March 16, 1947. It was agreed that (1) respondent should receive a royalty of $50 for each trailer sold at wholesale and $100 for each sold at retail; (2) if the license be not renew...
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On February 20, 1948, respondent by a writing subleased to appellants certain space in its Hollywood studios on Sunset Boulevard for a six-year term. For *321 26 months appellants occupied and paid rent as sublessees. April 14, 1950, they notified respondent of their intention to vacate the premises, demanded $5,000 from respondent and 17 days thereafter removed their fixtures and ...
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This is an appeal by the guardian of the estate of Eobert F. Foy, a minor, from the ‘1 Order and Decree of Settling of Account and of Final Distribution” distributing the whole of the estate of Eobert William Foy, deceased, to Lauretta Beaty Foy, the putative wife of decedent. As grounds for reversal appellant contends that (1) the evidence does not sustain the finding that Lauretta Beaty Foy was ...
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Appellant was convicted of three felonies, namely, assault with intent to commit rape; assault by means of force likely to produce great bodily injury; attempt to violate section 288a of the Penal Code. He demands a reversal of the judgment on three grounds, to wit: (1) denying appellant complete impeachment of the complaining witness; (2) refusing to give certain requested instructions; (3) in...
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Appeals by defendant and cross-complainant from a judgment of divorce and from an order denying her application for attorney’s fees and costs on appeal. The parties involved in this divorce case carried on a meretricious relationship for 10 months in 1948 while the respondent was awaiting a final decree of divorce from his first wife. That decree having been entered they were married on January...
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This action was brought by Sierraville Community Church, a nonprofit corporation, against “Pilgrim Congregational Church of Sierraville, by its trustees” and others. By the complaint it was alleged that the plaintiff was interested in certain real property located in Sierra County which it claimed to own by virtue of a written instrument, and that a controversy existed between it and the defendant...
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This appeal is from an order granting defendant’s application for a modification of the interlocutory decree of divorce and awarding to her custody of the minor children of the parties. As the sole ground for reversal plaintiff contends there is no evidence (1) of a change of circumstances to justify the modification of the interlocutory decree by which custody of the children was awarded to hi...
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Appeal by plaintiff from a judgment for defendant in an action for damages for assault and battery. The cause was tried by the court without a jury. The evidence, stated in the light most favorable to the prevailing litigant, discloses that on May 21, 1950, about 10:30 p. m., plaintiff went to the home of defendant, a neighbor, to inquire about his .dog which was missing and which fre *364 qu...
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The defendant owned and occupied a frame residence located within Eire Zone I of the city of Porterville. This building, which was some 50 years old, was damaged by fire on March 20, 1949. This action was brought to enforce the provisions of a city ordinance prohibiting the erection of frame buildings in this zone, and requiring that alterations or repairs to a building so situated, which excee...
Views: 2
A complaint in 13 separate causes of action was filed on January 15, 1951, by plaintiff corporation against defendants for money claimed to be due it. The first count is predicated upon a memorandum of agreement between the parties whereby Mrs. George A. Haddad agreed to pay plaintiff $100 per week, commencing November 4, 1950, until $9,754.33 had been paid. This amount was for cars purchased by ...
Views: 1
Plaintiff appeals from the judgment rendered against him in an action to recover from Jeanette Liebman, individually, and as administratrix of the estate of Ben Liebman, deceased, the rents, issues and profits of certain real property, which she had received during the period commencing October 18, 1945, and ending April 1, 1948. The “entire case,” as stated by appellant in his opening bri...
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Plaintiff, Aurelia Solomon, administratrix of the estate of Gabriel William Solomon, deceased, filed quiet title actions involving two separate parcels of real property in Kern County. Judgments were obtained by plaintiff quieting her title in both properties. Defendant Sally Walton appeals from the judgment in the first action which involves real property described in the briefs as the “Rosedale...
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Clinton W. Haywood died on July 6, 1950. By a will executed on August 7, 1947, he left his entire estate, valued at about $7,000, to Wallace T. Masters, his nephew, and disinherited his son, Howard E. Haywood. Howard filed a petition alleging that his father had died intestate and requesting letters of administration. A few days later Wallace filed a petition to probate the will of August 7, 19...
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Action for ejectment and for damages for claimed wrongful withholding of a strip of land containing approximately 4.6 acres. Plaintiff J. A. Fallert and wife purchased a tract of land in Tulare County on December 12, 1950, from one Reeves. On the north it adjoined a tract purchased on January 12, 1948, by defendants Claude Hamilton and his wife. A licensed engineer testified that he was famil...
Views: 1
These appeals present another round in the legal battles between the members of the Dandini family, their successors in interest, and the corporations • they control or have controlled. Two of these controversies have already been before this court. (Remillard Brick Co. v. Dandini, 98 Cal.App.2d 617 [220 P.2d 927]; Dandini v. Dandini, 82 Cal.App.2d 26...
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Defendants appeal from a judgment rendered against them for $2,000 as the balance due plaintiff upon a written agreement and $4,050 as the balance due him upon an oral agreement for work done in the remodeling and decorating of a restaurant owned by the defendants as copartners. Not having discussed the $4,050 portion of the judgment, defendants may be deemed to have abandoned that phase of the...
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This is an action to recover a balance on a builder’s contract. On October 21, 1947, the appellants' entered into a contract with the respondent to build a house on a lot which they owned in Millbrae Highlands Terrace in San Mateo County. The lot cost $3,000 and the price of the house is fixed by the contract at $16,435. Landscaping *437and sidewalks are not included in the contract and are expres...
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This ease revolves around a flooding of Owens Lake during the period December, 1937, to April, 1939. A previous action was brought by plaintiff as a result of a similar flooding in early 1937, in which case the Supreme Court considered the relationship of defendants’ Owens Valley aqueduct system and Owens Lake. (Natural Soda Prod. Co. v. City of Los Angeles, 23 Cal.2d 193 ...
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This is an appeal from the judgment and from the order denying a motion for a new trial. Defendant was charged with murder and assault with a deadly weapon with intent to commit murder. A jury was waived. Defendant was adjudged guilty as charged on both counts. It is contended on appeal that the evidence does not support the judgment of such conviction and that each should be reduced in degree to ...
Views: 5
In two counts of an information filed by the District Attorney of Los Angeles County, defendant was accused of violating section 11500 of the Health and Safety Code. Count I charged illegal possession of a narcotic in the form of morphine, while Count II alleged the sale of a quantity of morphine. A motion to dismiss under section 995 of the Penal Code was granted as to Count II and denied as to ...
Views: 16
Plaintiffs appeal from a judgment entered on motion of defendant after a demurrer to plaintiffs’ first amended complaint was sustained without leave to amend. It was alleged in said complaint that on or about July 9, 1948, defendant, Irene Krumsiek, entered into an agreement in writing with O. A. and Lola B. Sanders for the exchange of real properties in Kern and Los Angeles Counties; that the ex...
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This is an appeal by the six defendants from a judgment in favor of plaintiff, Frank A. Silva, doing business under the name J & S Liquor Company, in an action on the following promissory note: “$5,000.00 Oakland, California, May 29, 1946. Six months after date, for value received, we jointly and severally, promise to pay to J & S Liquor Co. or order, at Richmond, California the sum of Fiv...
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This appeal is from an order determining heirship. Christina Lynn, a widow aged about 86 years, died testate on November 26, 1949. Her estate consisted of a ranch of 300.19 acres near King City, appraised at $18,500; $669.68 in cash; $300 unpaid rent due her; bank stock valued at $86.75 and household furniture and personal effects valued at $200, making a total estate of $19,756.43 as appra...
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These two actions were consolidated for trial: Plaintiff Brooks commenced the first action above mentioned and sought to obtain a judgment that he is entitled to possession of 1 % acres of land, as lessee under an oil lease, and to oil produced from an oil well thereon. Thereafter plaintiff Davis joined as a party plaintiff in that action and alleged that she is the owner of and enti...
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Prior to and on March 2, 1945, the defendants, who are the respondents herein, were the obligors and the Bank of America National Trust and Savings Association was the beneficiary under a trust deed upon the single family residence property involved in this *487 proceeding. This trust deed was insured under the provisions of the National Housing Act (12 U.S.C.A. § 1701 et seq.) which will herei...
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Plaintiff sued for a declaration of interest in certain real and personal property asking that an undivided one-half interest therein be awarded her on the theory that said property was community. The parties were formerly husband and wife having been married in December, 1936. They were divorced by a consent decree entered in the State of Nevada on January 17, 1944. Prior to the marriage the d...
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Action for the forfeiture of an automobile to the state. The Notice of Seizure and Intended Forfeiture Proceedings, filed by the attorney general, alleged that the automobile was seized on October 17, 1949, by the Division of Narcotic Enforcement pursuant to section 11611 of the Health and Safety Code; that the automobile was used to unlawfully transport heroin. In a trial without a jury, the c...
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Plaintiff pleaded two causes of action for damages for personal injuries—the first alleging that he was an employee engaged by defendant under a contract of employment as a “student trainee,” the second alleging that he was an employee and praying for punitive damages for the alleged willful misconduct of the employer. Defendant’s answer admitted the employment and specially pleaded an award of...
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On January 27, 1950, the Fresh Fruit and Vegetable Workers Union entered into a collective bargaining contract with the employer association, one provision of which called for arbitration of disputes arising out of the contract. On November 24, 1950, petitioner, “as representative” of the members of the union, but not as an employee under the contract, filed her petition asking that the associatio...
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Wilbert C. Hamilton, hereinafter referred to as defendant, appeals from an adverse judgment after trial before the court without a jury in an action to recover upon a common count for money had and received, predicated upon the theory that plaintiffs’ money was obtained by defendant through false representations. Facts: The record being viewed in the light most favorable to plaintiffs (respon...
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Defendant appeals from a judgment in favor of plaintiff after trial before a jury in an action to recover damages for malicious prosecution. There are also purported appeals from (a) the order denying defendant’s motion for a mistrial, and (b) the order denying defendant’s motion for a new trial. Facts: In May, 1948, defendant signed a criminal complaint charging plaintiff with grand theft. B...
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This is an appeal from the portion of an order in an interlocutory decree of divorce granting the custody of the minor child of the parties to defendant (mother of the child). Facts: Plaintiff instituted an action for divorce against defendant. Thereafter pursuant to an order to show cause to determine the temporary custody of the minor child of the parties the trial court on September 27, ...
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109 Cal.App.2d 524 (1952) THE PEOPLE, Respondent, v. HUGH E. BURNS, Appellant. Crim. No. 2761. California Court of Appeals. First Dist., Div. One. Mar. 3, 1952. Hugh E. Burns, in pro. per., and Emmet F. Hagerty for Appellant. Edmund G. Brown, Attorney General, and David K. Lener, Deputy Attorney General, for Respondent. BRAY, J. Defendant appeals in propria persona from a conviction by a j...
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The complaint herein alleges that plaintiff and defendant Perry are husband and wife having been married on May 25, 1942. That during such marriage, defendant husband with the use of community earnings and without the consent of plaintiff, agreed to purchase jointly with defendant Manning two unimproved lots by means of a written installment contract. That on or about February 9, 1950, defendant ...
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The appellants filed this action for declaratory relief and requested the court to determine that appellants had acquired civil service status as inspectors in the police department of the city of Long Beach and were entitled to the salary attached to that rank. The trial court found against such contentions. Under civil service regulations appellants had qualified for and had been employed by ...
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This is an appeal by the defendant husband from that part of the judgment denying a decree of divorce on his cross-complaint on the ground of desertion. On April 30, 1949, plaintiff left the home of the parties with their two minor children and moved to the home of her parents in San Bernardino County because of the alleged extreme cruelty of defendant. She then filed an action there for separate ...
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In this action plaintiff, The Lost Key Mines, Inc., a corporation, brought suit against certain defendants, seeking to quiet title against the claims of said defendants in respect to certain real property in Tuolumne *570 County. It based its claims upon a mining lease. Josie Goodwin, respondent herein and admitted owner of the real property, filed a complaint in intervention against The Lost K...
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The plaintiff appeals from a judgment for defendants entered after sustaining a demurrer to plaintiffs’ complaint without leave to amend. The complaint alleges that plaintiffs were engaged in the business of selling tangible personal property at retail, possessing the required permit for the exercise of that privilege; that defendant State Board of Equalization, following the procedure outlined...
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Appellant Tolson was charged with and convicted by a jury of a violation of section 261 of the Penal Code, in that, with force and violence, and against her will, he accomplished an act of sexual intercourse with a Mrs. *580 S. who was not then his wife. He admitted the act of intercourse, but contends that it was aeeomplishehd without force or violence, and with the consent of Mrs. S., which s...
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Plaintiffs owned about 30 acres of potato land near Pixley. Defendant’s business consisted of financing potato growers, selling potato seed and fertilizer, and the packing and selling of potatoes. About July, 1949, plaintiff Mr. Webster (hereinafter referred to as plaintiff) went to defendants to obtain crop financing of bis acreage. Defendants inquired about bis experience in growing pota...
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This petition for a writ of prohibition and a writ of supersedeas raises the questions (1) whether section 1094.5 of the Code of Civil Procedure provides for a review by the courts of quasi-legislative acts of administrative agencies, (2) whether, independently of that section there can be such a review, and (3) the extent of that review. _ Record On the 14th day of September, 1950, p...
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Defendants are appealing from that portion of the judgment directing that a peremptory writ of mandate issue commanding them to make and enter an order granting to petitioners Diane M. Filian and Ronald K. Filian the dependent’s pension provided by section 187, subdivision (4) of the Long Beach city charter. The only question raised by the appeal is the interpretation to be given said charter p...
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Plaintiff brought this action, seeking damages for injuries suffered by her when she fell into a grease pit on defendant’s premises, which premises were used by him for the purpose of selling and servicing trucks. At the conclusion of the trial, by the court without a jury, findings were filed which recite: “That on the 8th day of November, 1949, and prior and subsequent thereto, defendant...
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This is a motion by defendant and cross-appellant Palermo (1) to dismiss plaintiff’s appeal on the ground that plaintiff by accepting the costs awarded to it in a judgment against said defendant has waived its right of appeal, and (2) to terminate and discharge certain attachments levied at plaintiff’s request on certain property owned by Palermo on the ground that plaintiff’s appeal was not file...
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The plaintiffs were injured in a collision between an automobile in which they were riding and a truck and trailer owned by Triangle Freight Lines, a partnership, and driven by Walker, an employee of the firm. The accident occurred on the night of May 20, 1949, on Highway 99, a few miles north of Bakersfield. At that point there were two northbound lanes and two southbound, separated by a barrier ...
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Respondents moved the dismissal of the appeal herein on the ground that appellants have voluntarily accepted substantial benefits of the judgment and therefore are estopped and barred from the right to appeal. Statement of Facts On July 2, 1947, respondents purchased from appellant William B. Miller, a hotel, bathhouse, cabins and real property *629 situated in Orange County. On July 21, ...
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Petitioner recited in his application that he was on bail pending the trial of the action against him, and after his conviction by a jury of a felony, he was committed to the county jail; that pending his motion for a new trial he applied to the trial court for bail pending his contemplated appeal and that this request was denied. This application for a writ of habeas corpus is predicated upon a s...
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Petitioner was convicted of a felony by a jury in the Superior Court of San Diego County. The trial judge imposed a prison sentence and in addition ordered defendant to pay a fine of $3,500. After denying a motion for new trial and after hearing had, the trial court denied petitioner’s application to that court for bail and denied his application for stay of judgment pending appeal. Petitioner ...
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Plaintiff brought this action against defendants, Kerrigan and wife and Sutter Butte Canal Company, to recover damages for injury to his peach orchard caused by excessive underground water seepage from adjoining lands which were controlled and operated by the defendants. The demurrer of the Sutter Butte Canal Company was sustained without leave to amend. Judgment was entered in favor of plainti...
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In its final analysis the question for decision is whether a broker who was engaged to sell 143 lots with homes to be completed thereon was entitled under the terms of his written contract with the seller to *643 a commission of $50 the moment the seller approved a buyer’s written conditional proposal to buy a lot or only when the proposal was consummated. A subsidiary question is whether the b...
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The primary question presented in this case is whether there was a failure to state a cause of action for rescission based on fraud, as the trial court held, merely because the complaint disclosed that the notice of rescission was not served until 72 days after the fraud was actually discovered. In support of its ruling the trial court relied upon Campbell v. Title Guarantee & Trust Co., 121 Cal.A...
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A dispute between plaintiff employee and defendant employer was submitted to arbitration. The employee was awarded $150 for two weeks’ wages due to him. The award was confirmed by the superior court, and defendant appeals. Defendant contends that the arbitrator acted in excess of his jurisdiction and powers, that the award was contrary to the contract of the parties, and was not acknowledged as...
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This is an appeal from the judgment and order denying a motion for a new trial. Defendant was charged in the information with the vio.lation of section 337a of the Penal Code; Count I for the violation of subdivision 2 and Count III for the violation of subdivision 3. A jury was waived and by stipulation the issues were submitted on the transcript of the preliminary examination. Defendant was adju...
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This is an appeal from the judgment in a divorce action. The parties were married in December, 1926; the action was tried in August, 1950. “In 1938, husband’s nephew, Charles Isham, the son of husband’s brother, came to the home of the parties and continued to live at the home to the time of trial. When Charles was received in the home he was thirteen years of age. From January 23, 1939, to Septem...
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Defendants appeal from an order denying their motion for change of place of trial from San Mateo County to Alameda County. Questions Presented 1. Did the court abuse its discretion in denying the motion subject to a renewal at the time of trial? 2. Is res judicata applicable? 3. Does section 394 of the Code of Civil Procedure require a change of place of trial ? 4. Effect of alleged d...
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July 22, 1947, a final decree was entered nunc pro tunc as of December 5, 1946, granting the plaintiff a divorce upon the ground of extreme cruelty, award *674 ing her permanent alimony for support and maintenance, and dividing the community property between the parties. That decree was affirmed in Wilson v. Wilson, 88 Cal.App.2d 382 [198 P.2d 916]. * In dividing the community propert...
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Patricia Wallace, in a trial before the court without a jury, was found guilty of unlawful possession of narcotics in violation of section 11500 of the Health and Safety Code. From the judgment of conviction she appeals. She admits possession of the narcotics, but claims that the evidence1 shows, without contradiction, that the narcotics belonged to one Levy, who had secured them by prescription,...
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Plaintiff brought an action to recover for personal injuries sustained when he was struck by an automobile operated by defendant Bernstein. The vehicle was registered with the Department of Motor Vehicles as being owned by defendant J. 0. Reade, an employee of defendant Bozzani Motors, Ltd. The vehicle had been loaned to defendant Bernstein for use while his own automobile was being repaired at...
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From a judgment in favor of plaintiff after trial before the court without a jury in an action to recover a real estate broker’s commission, defendants appeal. Facts: Defendant corporations owned certain apartment buildings which became the subject of negotiations leading to a preliminary agreement dated October 25, 1949, whereby the companies transferred three apartment buildings t...
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Plaintiff appeals from an order fixing alimony, attorney’s fees and costs, pendente lite, on the ground that he did not receive proper notice of the hearing at which the order was made. Facts: On May 8, 1951, plaintiff filed suit to annul his marriage to defendant. July 27, 1951, defendant filed her answer. At the same time she filed an affidavit as a predicate for alimony, attorney’s fees an...
Views: 3
Judgment was awarded respondents against appellant corporation and its president for damages arising out of fraudulent statements made in the course of negotiations for the sale of two apartment buildings in Los Angeles. Reversal is demanded on the grounds of (1) insufficiency of the evidence to establish fraud, (2) nonreliance by respondents “upon any representation,” (3) errors in rulings at ...
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Defendant appeals from a judgment in the sum of $5,500 entered upon a verdict in favor of plaintiff for injury to property which occurred when a city fire truck crashed into plaintiff’s building. The damage resulted when the vehicle’s driver was responding to an emergency call. The uncontradicted evidence establishes that the fire truck, a “pumper,” proceeded south on Main Street at a maximum s...
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Russell C. Kirkpatrick departed this life intestate in April, 1948. He left a widow, Julia, and a son by a former marriage. In qualifying as administratrix of *710 the modest estate, the widow did not list the son as an heir although she knew of his existence. Having concluded that the estate was community property and that all of it passed to her, she considered the son was not an heir. June 1...
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Appellant was convicted of having issued in Los Angeles a worthless check drawn upon a branch bank at Colton. He wrote and signed the check in the presence of the lady who had served him in a department store, and delivered it to her. He gave as his address one that did not exist. After having waited 30 minutes for the cheek to be verified, he was led away by the house detective. In his interview...
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The owner of a building and his tenant are charged in this action with negligence resulting in the death of one Mathias Lehmann, who fell through a painted skylight of the building and was fatally injured. The trial court granted a nonsuit as to the owner and directed a verdict in favor of the tenant. From the judgments entered upon the granting of the motions the plaintiffs have appealed. ...
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Plaintiff sued in equity for the cancellation of a written agreement, for a declaration that defendant had no interest in described real property, and for a money judgment for sums which had been paid defendant under the agreement. The appeal is taken from the ensuing judgment for plaintiff. There is little conflict in the evidence. Plaintiff was owner of two dwellings which were rented for $25 a ...
Views: 1
This is an appeal by the plaintiffs from a judgment in favor of defendant after a jury trial. Viewing the evidence as we must on appeal in the light most favorable to the successful party in the trial court, the facts and circumstances surrounding this automobile collision are as follows: The plaintiffs, husband and wife and two adult children, were traveling north in the family car. The defendant...
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Joas Ignacio Costa died intestate in San Francisco on January 12, 1919. At the time of his death he was the owner of two savings accounts in Oakland and San Francisco in the aggregate sum of $2,449.55. Said accounts became dormant and on October 15, 1946, the balances thereof were deposited in the state treasury pursuant to the Abandoned Property Act (Code Civ. Proc., §§ 1274.1-1274.17). On March...
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This is a proceeding in mandamus to review an order of the Insurance Commissioner suspending licenses to act as bail agent and as bail permittee. Since 1942, the appellant Smith has been licensed as a bail agent and as a hail permittee under sections 1802 and 1802.5 of the Insurance Code. In 1949, he was served with an accusation (Gov. Code, § 11503) charging him with having committed acts show...
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The Retirement Board of San Francisco denied Florence Rogers, the widow of a police officer, a pension. On writ of mandate to the superior court a peremptory writ issued ordering the board to grant Mrs. Rogers a pension. The board appeals. Respondent is the widow of John Rogers, who was a member of the police force in San Francisco. In June of 1944, after 19 years of service, Rogers, then ...
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This is an action brought through her guardian ad litem by Catherine Milias, a minor, for her injuries, and by her father for his medical expense, all alleged to have been caused or incurred as a result of the negligence of the defendant, the Wheeler Hospital. The hospital is the sole defendant. At the trial the cause of action by the father was, by consent, dismissed. The jury broug...
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This case has had a long and confused history. One phase of it has already been before this court (Deschamps v. Independent Cab Co., 94 Cal.App.2d 127 [210 P.2d 299, 897]-—which see for a supplementary statement of facts). The present appeal is by Clark, doing business as The Independent Cab Company, * from a judgment in a declaratory relief action determining that Clark is not entitled to ...
Views: 1
Petitioner, LaGulia G. Shaw, brought this proceeding for a writ of mandamus to compel the Board of Administration of the State Employees’ Retirement System of California, referred to as the board, to pay a death benefit to her. The board was granted permission to substitute the administratrix of the estate of Frank Shaw, deceased, upon its depositing the benefit with the clerk of the court. The...
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Defendant was convicted by a jury of attempted extortion. He appeals from the judgment and the order denying his motion for a new trial. As grounds for reversal he urges (1) it was not shown that Bette Cole, the prosecuting witness whose testimony given at the preliminary examination was read at the trial, could not with due diligence be found within the state; (2) the evidence is insufficient to...
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This is an appeal by the above named minor and his mother, Maria Luisa Contreras, from an order of the superior court sitting in separate session as a juvenile court, declaring the aforesaid minor a ward thereof and committing him to the Youth Authority of the State of California and denying a motion to vacate and set aside the aforesaid order. The original order declared said minor to be a per...
Views: 10
Appellant, Jorge Rodriquez Renoso, was convicted of the crime of murder of the first degree in a trial before a jury which set the punishment at life imprisonment. He appeals from the judgment imposed in accordance with the verdict, and urges that the record shows no justification for a conviction of first degree murder; that appellant could have been convicted of second degree murder at most. ...
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Defendant Lois A. Kirkpatrick * appeals from a judgment in favor of plaintiff enjoining defendant from interfering with plaintiff’s use of a right of way. *799 Question's Presented 1. Is plaintiff estopped to assert any easement 1 2. Did the court include in the casement more land than reasonably necessary to accomplish its purpose? 3. The effect of the injunction ...
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This is an appeal on the judgment roll from a judgment dismissing the action. The record consists of the third amended complaint; notice of motion to amend the same, and the amendment; motion to dismiss; demurrer to third amended complaint and to the amendment thereto; points and authorities; order of substitution ; judgment; notice of appeal, and request for transcript. The motion to dismiss...
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This is a paternity suit instituted by the mother on behalf of her infant daughter to have it adjudged that the defendant was the father and under a duty to support the child. The jury returned a nine-to-three verdict in favor of the defendant. The basic question presented to us on the record is whether the plaintiff did or did not have a fair trial. In view of the serious contentions...
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From a judgment in favor of defendants predicated upon the sustaining of a demurrer without leave to amend to plaintiffs’ fourth amended petition, for a writ of mandate to compel defendants to reinstate plaintiffs in the union, plaintiffs appeal. Chronology: i. November 15, 1948, the original petition herein was filed in which plaintiff Griffin alleged that on April 16, 1946, he a...
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The trial court denied a petition by a minor, aged 14, to have his paternal grandmother appointed his guardian. The child appealed from that judgment. The child then petitioned the superior court to appoint his grandmother his temporary guardian pending the appeal. The trial court, over the protests of the child’s mother, who has legal custody, indicated that it believed that it had jurisdiction o...
Views: 0
This appeal is from a judgment in favor of defendant A. W. Morton for costs. A new trial was denied. On December 31, 1947 appellant filed this action against Dr. A. W. Morton, Sts. John Hospital, and four fictitious defendants, for damages arising out of an abdominal operation performed on appellant by Dr. Morton in said hospital on February 26, 1935. A nonsuit ivas granted as to the hospital a...
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Plaintiffs and appellants entered into a contract with defendants and respondents wherein they agreed to buy all of the merchantable timber situate on certain lands owned by the defendants in Mendocino County at a price of $30,000, payable $5,000 on execution of the agreement March 10, 1948, and $3.00 per thousand board feet as the vendees removed timber from the land. In addition to these paym...
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Plaintiff sued for damages for personal injuries incurred while feeding a polar bear at the San Francisco Zoological Gardens. The trial court granted defendant’s motion for a directed verdict and plaintiff appeals. The zoological gardens is owned and operated by the city and county as a part of its park system and is under the supervision and control of the City Park and Recreation Department. Ent...
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On January 6, 1950, defendant pleaded guilty to a violation of Penal Code, section 288. Thereafter in a proceeding initiated by him for that purpose he was determined by the court to be a sexual psychopath, sentence was suspended and on February 24, 1950, he was ordered committed to the State Hospital at Talmadge. On August 1, 1951, defendant submitted a written motion to the superior court in whi...
Views: 0
Plaintiff below commenced .this action against defendants by a complaint in which he alleged that defendants were a partnership; that on or about July 1, 1947, defendants orally employed plaintiff to superintend, manage and direct the construction of a certain building near Redding, California; that defendants had theretofore contracted with the owners to construct said building; that they agre...
Views: 1
This is an action for damages suffered by plaintiff when, while walking across North Chester Avenue in the city of Bakersfield, she was struck by an automobile operated by the defendant, Donald E. Barnes. The court, sitting without a jury, found for plaintiff and gave judgment in the sum of $2,000. Defendants appeal on the grounds that the evidence was insufficient to sustain the court’s findings...
Views: 3
On August 12, 1948, the plaintiff secured an interlocutory decree of divorce on the ground of extreme cruelty. The defendant had defaulted and the decree, among other things, gave the plaintiff the care, custody and control of the couple’s daughter, then 2 years old. A final decree was entered on August 26, 1949, containing the same provision by reference. On February 28, 1951, the appellant filed...
Views: 0
Defendant was charged Avith, and by a jury found guilty of, the crimes of kidnapping, robbery and forcibly raping one Lola Sickler. He was sentenced to the state’s prison on each of the three counts contained in the information and appeals from the judgment. Defendant admits that the evidence was amply sufficient to support the verdict and the judgment. His contentions on appeal are that the cour...
Views: 4
Petitioner appeals from an order of the superior court denying his petition for a writ of mandate to compel the California State Personnel Board to restore him to his former position. Questions Presented 1. Sufficiency of evidence. 2. Did petitioner have a full and fair hearing before the board? 3. Where the hearing officer made no findings and the board heard no witnesses, is the board’s ord...
Views: 3
This appeal involves the same claim of fraudulent conduct by the Crocker First National Bank discussed in Spencer v. Crocker First Nat. Bank, 86 Cal.App.2d 397 [194 P.2d 775] to which reference is made for a statement of appellants’ theory. In that case the first division of this court held that since the respondent bank was executor of the will of Meta S. Healy, deceased, and the probate proceedi...
Views: 0
Respondent’s motion to dismiss the appeal from a judgment in its favor is based upon appellants’ failure to secure the preparation of any record on appeal. The clerk’s certificate shows that appellants’ time to make arrangements for the preparation of the record expired on April 30, 1951. It further shows that on April 26, 1951, appellant Henry C. Pitman delivered to the clerk his personal check f...
Views: 0
The defendant appeals from a judgment of conviction of a violation of section 288 of the Penal Code and also from an order denying his motion for a new trial. He presents his appeal in propria persona and as is frequently the case when this is done the briefs carry all the testimony most favorable to the appellant. The only question raised on the appeal is whether the evidence supports the verdict...
Views: 0
By information, defendants were jointly charged with the crime of conspiracy to engage in bookmaking, a violation of subdivisions 1, 2, 3, 4, and 6 of section 337a, Penal Code. Thirteen overt acts were therein alleged. The *892 jury found • defendants guilty as charged. Motion for new trial was denied as to each defendant; proceedings were suspended and defendants were granted prob...
Views: 5
Appellant was charged with violation of Vehicle Code, section 501, by wilfully, unlawfully and feloniously driving an automobile “while under the influence of intoxicating liquor, and in an unlawful manner, causing bodily injury to Robert Russell Buzzell, Lorraine Buzzell and Frances Carter Gland, human beings.” About 2:30 or 3 a.m. on November 26, 1950, at the intersection of Florence Avenue a...
Views: 2
The plaintiff (respondent herein) filed this action to quiet title against his son, the defendant (appellant herein). The defendant filed an answer and cross-complaint. By the answer the defendant denied the allegations of the complaint and alleged as a separate defense that he and the plaintiff were the owners of the property in question as joint tenants and that the possession of the plaintif...
Views: 1
Appeal by plaintiffs, husband and wife, from a judgment entered upon a verdict for defendant in an action for damages for personal injuries and property damage resulting from a collision between plaintiffs’ and defendant’s automobiles. As no appeal lies from an order denying a motion for a new trial, plaintiffs’ appeal therefrom is dismissed. The principal question is whether the court erred in...
Views: 5
109 Cal.App.2d 917 (1952) ROBERT ANTHONY BARATTI, Respondent, v. CLAIRE MARIE BARATTI, Appellant. Civ. No. 18732. California Court of Appeals. Second Dist., Div. Three. Mar. 24, 1952. George A. Pickering for Appellant. Walter C. Harbert for Respondent. VALLEE, J. Appeal by defendant from an order denying her motion to vacate a default and an interlocutory decree of divorce based thereon. ...
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The plaintiff appeals from that portion of a judgment of the Municipal Court of the City of Oakland which limits his damages under a lease contract to the recovery of attorney’s fees and three months’ rent at the rate of $100 per month. Pertinent provisions of the lease are as follows: Paragraph 12 “In the event of any default by lessee under any provision of this lease, lessor may at his option t...
Views: 0
This is an appeal from a judgment of the municipal court in favor of plaintiff and respondent and against defendants and appellants in an action for unlawful detainer. *941 A reading of the record discloses that the appellants were delinquent in their payment of rent; that the statutory unlawful detainer notice was sent to them. Thereafter, and during the trial of said action, appellants offe...
Views: 1

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