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All Reporters → cal-app-lexis → Volume 1954

Opinions in cal-app-lexis Volume 1954

Petitioner, Shirley Ann Flodstrom, seeks discharge from custody pursuant to a writ of habeas corpus issued out of this court on the ground that she is being held to answer for the crime of murder without a showing of reasonable and probable cause. Petitioner alleges that she was arrested on October 12, 1954, and a complaint was filed in the Municipal Court for the San Jose-Alviso Judicial Distric...
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122 Cal. App. 2d 417 (1954) LOIS GWENDOLYN NETZLEY et al., Appellants, v. E. N. HILLSTROM et al., Respondents. Civ. No. 4727. California Court of Appeals. Fourth Dist. Jan. 4, 1954. William G. Bergman, Jr., for Appellants. Swing & Gillespie for Respondents. MUSSELL, J. The complaint in this malpractice action was filed on January 26, 1948. On November 20, 1952, defendants E. N. Hillstr...
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Plaintiff brought this action to recover for services rendered to defendants in hauling tungsten ore from Fallon, Nevada, to Bishop, California. His original complaint stated a cause of action on a book account and at the *423 conclusion of the presentation of plaintiff’s evidence, he was permitted to file an amended complaint to conform to the proof. In the second cause of action ...
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Petitioner, an insurance carrier, seeks the annulment of an award of the Industrial Accident Commission in which respondent Gae P. Moynahan was *429 found to have suffered an industrial injury and was awarded compensation benefits, including self-incurred medical expenses. According to the testimony of Mrs. Moynahan she was 39 years of age and was employed as a bookkeeper by t...
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Defendant was charged with grand theft. After trial by jury he was found guilty as charged and sentenced to prison for the term prescribed by law. He appeals from the judgment. Defendant does not deny the commission of the crime. In fact, he admitted the theft from the witness stand. His sole point on this appeal is that he should have been convicted of petty theft for the reason that the evide...
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This is an appeal from a judgment in favor of defendant entered pursuant to a directed verdict, the action being one to recover a real estate broker’s commission. The evidence presented by plaintiff is substantially the same' as that in a former trial of the action in which a jury returned a verdict in favor of plaintiff H. Frank Nelson. A new trial was granted in that action and on appeal the or...
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Defendants were charged with six counts of burglary and one count of conspiracy to commit theft. A jury found defendants Edward B. Decker and Cecil E. Cooper guilty of counts I, II, VI and VII and not guilty as to counts III, IV and V. Defendant Helen Decker was found not guilty on each of the seven counts and the trial court, on motion of defendants, set aside the jury’s verdict as to count VII, ...
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Plaintiffs, husband and wife, brought this action against Robert Donaldson et al., for their alleged negligence arising out of an intersection accident between two cars. Defendant Donaldson and his wife filed a cross-complaint alleging negligence of plaintiffs and prayed for damages. The controlling facts are undisputed. The accident happened on a clear, dry day at the intersection of Alde...
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A jury convicted defendant of the crime of burglary (second degree) under Penal Code, section 459, in count one of an information charging that on November 14, 1952, he entered the home of Edward N. Petrick with the intent to commit rape. In count two he was charged and convicted of the crime of illegally administering an anaesthetic, under section 222 of the Penal Code, in that he administered e...
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122 Cal. App. 2d 466 (1954) VIVIANE M. FOLLANSBEE, Individually and as Executrix, etc., Plaintiff and Appellant, v. PHILIP G. H. BENZENBERG et al., Defendants and Appellants. Civ. No. 19686. California Court of Appeals. Second Dist., Div. Three. Jan. 7, 1954. Wellborn, Barrett & Rodi, Karl B. Rodi and Owen F. Goodman for Plaintiff and Appellant. Bauder, Gilbert, Thompson & Kelly for ...
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Plaintiff brought this action for damages and an accounting of the profits of defendant’s business, and also for an amount alleged to be due him for unpaid salary and money loaned. Judgment was in favor of plaintiff for $225 and he appeals. The action was based upon an alleged breach of a contract by which defendant employed plaintiff to assist him as sales manager and assistant in the conduct ...
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On January 7, 1952, the district attorney of Eldorado County filed an information against appellant, and against George Theodore Poulter and Roland Wayne *485Wright, charging them with escape from the state prison at Folsom (count I) and attempted robbery (count II). Appellant was also charged with four prior felony convictions, and Poulter and Wright were each also charged with prior felony convi...
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The appellant was found guilty of violating section 288a of the Penal Code, and he appeals from the judgment and an order denying his motion for a new trial. On September 20, 1952, the appellant and a woman registered at a motel near Laguna Beach and occupied a room there. The next morning the appellant took a number of pictures which clearly disclose a violation of section 288a by these partie...
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Respondent parents brought an action against their son and his wife to have a resulting trust declared in certain real and personal property and for an accounting of the profits derived from said property. The trial court found that the parents owned an undivided one-half interest in the real and personal property, ordered that an account be taken by a referee, and upon the settlement of the refe...
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— On August 30, 1945, plaintiffs, owners of real property in Indio, entered into a written lease of the premises to defendant J. F. Seawell and H. H. Snow. The lease was for five years at a monthly rental of $150, with an option to purchase as follows: “12. Lessees are hereby granted an option to purchase said real property at the expiration of said term or any renewal thereof by giving to the ...
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This is an action for damages arising out of an automobile collision. On October 21, 1951, the plaintiff was driving on Highway 101 when a car driven by the deceased, Edwin T. Smith, entered the highway from an intersecting street. In the resulting collision Smith was killed and the plaintiff suffered injuries to both knees, a back injury, cuts on his chin, chest and head, and injury to the splee...
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This is an action for the dissolution of a partnership, for an accounting, and for damages. The defendant appealed from an order approving a report and *517 account filed by the receiver. The plaintiff has moved to dismiss that appeal on the grounds that the defendant failed to pay the estimated costs of preparing the transcripts within the required time, and that the order appealed from is int...
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William Ralph Payne, a partner-employee of Mary Len Mine, a copartnership, died as the result of injuries received during the course of his employment. His dependents instituted a proceeding before the Industrial Accident Commission against the employer and against the State Compensation Fund as the employer’s insurance carrier. The commission awarded them compensation to be paid by the State C...
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This action in declaratory relief concerns the application of a substantial advance payment of principal made on a promissory installment note nearly five years before any of the installments became due. The question of interest is not involved. The point to be decided is how this advance payment is to be applied on the principal amount. Appellant contends that it should be applied to the last ...
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This is an appeal from a judgment of the Superior Court of Alameda County in a quiet title action, decreeing that defendant and cross-complainant Huston convey two parcels of property to plaintiff and cross-defendant Leonard upon receipt of the balance of the purchase price in the amount of $13,853.32 with interest at 7 per cent from entry of judgment, and determining that Leonard as equitable ...
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Appellant was convicted by a jury on each of five counts of perjury. The basis of the convictions was that appellant executed five affidavits, each attached to' a petition to submit a proposed amendment to the charter of the city of Santa Cruz, in each of which he falsely stated that he was the person who circulated the petition to which the affidavit was attached and that all of the signatures t...
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122 Cal. App. 2d 555 (1954) JOSEPH RABOFF, Respondent, v. CHRISTINE J. ALBERTSON, Appellant. Civ. No. 19396. California Court of Appeals. Second Dist., Div. Three. Jan. 18, 1954. Albert E. Wheatcroft and Charles Murstein for Appellant. Paul R. Hutchinson for Respondent. WOOD (Parker), J. This action against a wife to recover money lent to a husband (now deceased) is based upon an oral agre...
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Appeal by plaintiff from a judgment entered on an order sustaining the demurrer of defendant Salot to a second amended complaint without leave to amend. The only matter that may be considered is whether the second amended complaint, referred to as the complaint, states facts sufficient to constitute a cause of action. The material allegations of the complaint are these: 1. On Jul...
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Appeals by Leslie Gullick Thompson and Rube Lazarus from multiple convictions for violations of section 6200 of the Government Code, and from orders denying their motions for new trial. By section 6200 of the Government Code it is made a felony for an officer, having custody of a public record or paper, to steal, destroy, secrete or mutilate the same.1 By section 6201 of the Government Code any pe...
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Respondent commenced this action alleging that he and appellant orally entered into a partnership agreement to conduct a horse-racing stable and to train and race horses at recognized tracks; that the parties agreed to share equally in the profits and losses and equally to contribute capital and advances to the partnership; that respondent had contributed more capital and made more advances than ...
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This is an appeal by defendant from a judgment of conviction of the crime of embezzlement. By information, defendant was charged with violation of Penal Code, section 506, in that he wilfully and fraudulently appropriated certain money which was entrusted to him and came into his possession and control for the use of one “Homer Bruce, the Anderson Valley News, and the Anderson Chamber of Commer...
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Caroline R. West, the surviving spouse of J. Howard D. West, deceased, appeals from a judgment in which it was decreed that certain real and personal property standing of record in the names of appellant and her predeceased husband as joint tenants, was nevertheless the community property of appellant and said J. Howard D. West. West, hereinafter referred to as decedent, purchased the real proper...
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The court granted a rehearing in this case to give further consideration to appellant’s contention that the jury was improperly instructed as to proximate cause and that the trial court gave an erroneous instruction which brought about the exoneration of the codefendant, Western Pacific Railway. Here the dangerous condition of the wire had existed for many years. There was a clear duty under the l...
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Plaintiff, seller, recovered damages for breach of an oral contract of sale of 14 secondhand automobiles. The sole contention of the appellants—defendants— is that the trial court erred in holding them estopped from asserting the statute of frauds, to wit, section 1973a Code of Civil Procedure, reading in part: “1. A contract to sell or a sale of any goods or choses in action of the value of fi...
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Appellant, East Bay Municipal Utility District, the defendant below, appeals from a judgment against it of $3,360 in a suit for damages to plaintiffs’ property alleged to have been caused by an overflow of San Pablo Creek resulting from defendant utility district’s negligence in the operation of San Pablo Dam and Reservoir. • Judgment upon the jury’s verdict in favor of plaintiffs was entered o...
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This is an appeal from the judgment. Plaintiff and defendant were married October 13, 1950. Each had been married before and each possessed separate property. They separated June 9, 1951. As stated in respondent’s brief, “Plaintiff sued defendant, his estranged wife, to quiet title to certain parcels of real estate, which were plaintiff’s separate property owned prior to his marriage to defendant....
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In this case the employee testified that while he was rolling a bale of old automobile tires weighing 200 pounds, he stooped over and tried to lift the bale; that when he stooped over he felt a snapping or pulling sensation in his back. The employee’s doctor diagnosed his trouble as a herniated disc, for which he operated. The Industrial Accident Commission found that the employee suffered an indu...
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Appellant, as beneficiary under a policy of insurance issued by the respondent, brought this action to recover $5,000 payable to her under the terms of said policy in the event of the death of said insured “as the result, directly and independently of all other causes, of bodily injuries caused solely by external, violent, and accidental means.” This appeal is taken from the judgment that plain...
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Respondent Lucero has moved to dismiss an appeal purportedly taken from an order of the Superior Court of Yolo County, by which order that court dismissed an appeal taken to it from a judgment rendered in the Justice Court of the Davis Judicial District. The action was based upon an open book account in the sum of $85.81 and was, therefore, within the original jurisdiction of the justice court ...
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Appellant was charged by information with two violations of section 245 of the Penal Code, to wit: assault with a deadly weapon. The assaults were alleged to have been committed with a pistol upon the persons of Leon Calkins (count 1) and James Shirley (count 2) on October 10, 1952. Following a trial, appellant was found guilty on count 2 and not guilty on count 1. Appellant’s motion for a new tr...
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Respondent, Jose Martha, having been convicted and sentenced to jail by a judgment made and entered in the Justice’s Court of Colusa Judicial District, Colusa County, California, petitioned the Superior Court of *656 Colusa County for a writ of habeas corpus. The writ was issued and after proceedings held the court declared that respondent was unlawfully detained under count II of the complaint...
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Respondent, Jose Gutierrez, successfully petitioned the Superior Court in Colusa County for a writ of habeas corpus. The People appeal from the order of the trial, court discharging him from the custody under which he was being held. The record shows that a complaint was filed against respondent containing two counts, by one of which he was charged with disturbing the peace. (Pen. Code, § 415.) T...
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As a result of a jury trial plaintiff Wells Trackways, Ltd., was given judgment for $18,864.32 against defendants for damage occurring to plaintiff’s tractor and trailer when defendant Cebrian’s tractor and trailer, driven by defendant Donahue, collided with it on Highway 99 near Whitewater, about 9:30 p. m. on January 8, 1950, as a result *669 of which Louis Richter, the driver of...
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This appeal presents the following question : Can the state forfeit the interest of an owner of an automobile where the owner rents the automobile to a bailee, who, in turn, entrusts it to a malefactor, who uses the car, illegally, and contrary to the terms of the rental agreement, to transport narcotics 1 The trial court answered this question in the affirmative and forfeited the interest of t...
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An information was filed against appellant charging him with a violation of Vehicle Code, section 502, to wit: operating a motor vehicle while under the influence of intoxicating liquor, and also charging him with three prior convictions under the same section. Upon being ar *700 raigned in the superior court he entered a plea of “Not Guilty” to the offense charged and “Guilty” to the prior con...
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Josephine B. McConnon died December 31, 1949, at the age of 86, leaving as her principal estate a valuable piece of real property on Fell Street in San Francisco, on which two buildings had been constructed. One building consisted of a garage and three apartments, the other consisted of four flats. After her death the plaintiff. Ann Rousseau, grandchild of the deceased, claimed the property by ...
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Plaintiff and appellant John Rodgers filed this action against the administratrix and heirs of deceased Marie A. Rodgers, to enforce an alleged reciprocal oral agreement between plaintiff and his deceased wife to devise property to him by will and to establish a trust thereon. He alleged that beginning May 28, 1926, to the date of her death on May 28,1951, plaintiff and the deceased acquired prope...
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This is an action for equitable subrogation of a claimed lien to the lien of a deed of trust, or in the alternative to declare an equitable lien upon the proceeds of the sale of the real property formerly covered by the deed of trust. It was brought by plaintiff and appellant Alfred A. Grant III, as executor of the last will and testament of Alfred A. Grant II, deceased, against Donald F. de Otte...
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Plaintiff Lansing K. Tevis recovered judgment upon a promissory note in the principal sum of $5,000 against defendants Brunner Blanchard Manufacturing Company, Inc., a corporation, as maker, and G. Arthur Blanchard as guarantor. Blanchard has appealed from the judgment and from an order denying his motion for judgment notwithstanding the verdict. He claims the note is void either as a security ...
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This is an appeal by Joseph Abrams, an individual, defendant below, from a judgment against him in the amount of $10,876.74 plus interest, arising out of a sale by him to respondent of imported Portuguese brandy. The trial court held that a certain document and transaction of December 11, 1945, constituted an agreed and voluntary rescission by the parties of the purchase orders for the 400 case...
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Defendant was convicted by a jury of a violation of section 11500, Health and Safety Code, possession of marijuana. He appeals from the judgment and from an order denying his motion for new trial. Two police officers on January 9, 1953, went to the premises known as 1626 Ellis Street in San Francisco. The premises consisted of a front room used as a shoeshine parlor and a back room containing a...
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The petitioner is a nephew of Dora M. Baldridge. He sought to have her declared incompetent and a guardian appointed for her person and estate. *753 After hearing the evidence, the trial court found that Mrs. Baldridge “is competent to manage her own person and her household affairs and expenses” and denied the petition for guardianship of her person. The court also found that “Dora M. Bald...
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Appeal by defendant Rook from an adverse judgment entered on verdicts of a jury in actions for damages for personal injuries. Rook commenced an action in the municipal court against Ellen Louise Chastain for damages for personal injuries and to property. Ellen Louise filed a cross-complaint in that action for damages in a sum in excess of the jurisdiction of the municipal court. That action was...
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Plaintiff, the former wife of defendant Garrett H. Briggs, brought this action to obtain a judgment determining that certain real property in Orange County is the community property of plaintiff and said defendant. She also seeks damages for the loss of her community property interest therein in the event that it cannot be conveyed to her. On May 17, 1940, an order settling final account and fo...
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On October 2,1951, plaintiff filed this action for divorce in San Bernardino County, California, alleging, among other matters, that the custody of the minor child of the parties had been awarded to plaintiff’s parents by virtue of a decree of divorce rendered in the state of Kansas and that certain real and personal property described therein was community property. The prayer of the complaint w...
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Petition for writ of mandate to compel respondent chairman of petitioner Redevelopment Agency of the City and County of San Francisco * to execute certain loan and grant contracts with the United States of America. Questions Presented 1. Have interveners the right to intervene ? 2. Constitutionality of the Community Redevelopment Law (Health & Saf. Code, pt. I, div. 24...
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On December 2, 1951, at about 9:45 in the evening, Clarence O. Barton was operating his automobile in a southerly direction on Lincoln Boulevard in Santa Monica, California, accompanied by his wife, one of the plaintiffs herein, Happy May Barton. Their automobile was struck from the rear by a tractor and semitrailer operated by the defendant Orval Messmore and owned by defendant Union Truck Compa...
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Plaintiff was employed in a large gasoline and automotive service station on San Fernando Road in Burbank, Los Angeles County. Gasoline and propane pumps were ranged in two rows, parallel with San Fernando Road. Back of the pumps was a building used for changing tires, and for doing other automotive service work. At the rear corner of the building was a wash and rest room for employees. This room ...
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The petition for instructions of Bessie Hirsh and Jeanette Sarno, as coexecutrices of the last will of Max Hirsh, recites that Bessie Hirsh is the surviving spouse of decedent; that the estate consists of community property of decedent and Bessie Hirsh and also separate property of decedent. Under the terms of the will all of decedent’s property was devised and bequeathed to his three children:...
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The complaint herein alleged that on February 3, 1949, and thereafter the plaintiff was the owner and entitled to the possession of $24,990.91; on said *827 day William Simpson, the District Attorney of Los Angeles County, entered the premises occupied by plaintiff and took into his possession said sum of money; the defendant Roll herein, who succeeded Mr. Simpson as district attorney, took pos...
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Appeal by defendants from an adverse judgment in an action by a real estate broker to recover a commission. Plaintiff was a licensed real estate broker and also was a salesman for Consolidated-Hill, Inc., a concern engaged in selling market fixtures. *842 On January 31, 1949, the parties entered into a written contract 1 by which defendants employed plaintiff “for ...
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Appeal by defendants and cross-complainants from: (1) an order granting plaintiff and cross-defendant’s motion for reconsideration of the denial of a motion to *854 vacate and set aside a judgment; (2) an order setting aside and vacating an order denying a motion of plaintiff and cross-defendant to vacate and set aside a judgment; (3) an order setting aside and vacating the default of plaintiff...
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This is an action to recover on an insurance policy. The policy, issued on August 1, 1947, insured the life of Joseph E. Wharton, with an additional benefit in the event of death by accidental means. Wharton died on April 4, 1950. The life insurance was paid, but the defendant refused to pay the accident insurance, contending that death was not caused by accidental means within the meaning of the ...
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In an information filed by the district attorney of Merced County, appellant John K. Parker and Jesse Jack Wilmoth were jointly charged with two crimes. In count one of the information they were charged with violating section 4534 of the Penal Code, it being alleged that appellant and Wilmoth on or about the 3d day of August, 1952, “did wilfully, unlawfully and feloniously assist a prisoner, to-w...
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Defendants and cross-complainants appeal from a judgment and decree quieting title in plaintiffs as joint tenants of certain, real property in Orange County and declaring that defendants and cross-complainants have no right, title, interest, claim or estate therein. Defendants, in their answer to the complaint to quiet title, admitted that the record title was in plaintiffs but claimed title to...
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This is an action by depositors for the amount of a check credited to their account, but charged back by defendant bank when it found that the funds were insufficient. The court gave judgment for the bank and plaintiffs, depositors, appeal. The notice of appeal was filed on October 7, 1952, prior to the rendition of judgment and the filing of the findings of fact and conclusions of law, wh...
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Defendants and appellants were charged with and convicted by the court, sitting without a jury, of the crime of manslaughter (involuntary) under section 192 of the Penal Code. Both appealed from the judgment and order denying a new trial. The evidence shows that about midnight on July 4, 1952, three youths, Richard Young, Henry Gonzales and Joe Harmer, were returning home from a café in Colton....
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Alfred J. Byrnes, plaintiff, appealed from the order which granted a new trial after entry of judgment in his favor upon a verdict for $30,000 in this action *903 against Miley B. Wesson, physician and surgeon, on account of injuries allegedly caused by negligence of the defendant • in the care and treatment of the plaintiff. The order for new trial stated that it was granted “upon the ground...
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Defendant appeals from a summary judgment in an action on a promissory note. On November 25, 1952, plaintiff, Don C. Kimber, filed a complaint alleging that he was the assignee and lawful holder of a promissory note executed by defendant Nelson E. Jones in the sum of $12,214.81, running in favor of Lee P. Hill, plain *915 tiff’s assignor. A copy of this note, dated June 15, 19...
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Appeal by plaintiffs from an order granting defendant’s motion for a change of venue from the county of Los Angeles to the city and county of San Francisco. The suit is for an injunction to restrain the Insurance Commissioner from enforcing the provisions of an order dated June 19, 1952, identified as Ruling No. 67; for a declaration of the rights and duties of the parties with respect to the o...
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As the result of an automobile accident which occurred on January 19, 1951, at the intersection of Highway 152 and County Road 10-N in Madera County, Charles Boots received personal injuries and his wife, Mary Boots, was killed. One action was filed by Charles Boots to recover for his own injuries and another by Charles Boots and the children of Charles and Mary to recover damages for Mary’s de...
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This is an appeal from an order of distribution following termination of the trust created by the decedent. At the time of her death in 1917 decedent was survived by two adult married daughters, Maria Cronise and Eliza Middleeoff, her only heirs at law. Both of their husbands were then living. Following the administration of her estate the court, in its decree of final distribution, stated that th...
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122 Cal. App. 2d 948 (1954) 265 P.2d 963 C.A. RICKETTS, Plaintiff and Appellant, v. THE MOREHEAD COMPANY, INC. (a Corporation), Respondent; WILLIAM HEATER et al., Defendants and Appellants. Docket No. 8279. Court of Appeals of California, Third District. January 29, 1954. *949 Goldstein, Barceloux & Goldstein, J. Oscar Goldstein, P.M. Barceloux and Burton J. Goldstein for Plaintiff and Appell...
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Defendant, Doyle Lee Quarles, was tried without a jury and convicted on two counts of an information charging him with violation of section 192, Penal Code (involuntary manslaughter) and of section 501, of the Vehicle Code (committing an unlawful or negligent act while driving under the influence of liquor). He appeals from the judgment and from an order denying defendant’s motion for a new trial...
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Appellant was charged by indictment with the murder of John Camalig and with two counts of assault with a deadly weapon with intent to commit murder. He interposed pleas of not guilty to each count, but was found guilty of murder of the first degree and of an assault upon Suzie Camalig with a deadly weapon with intent to commit murder and of the lesser offense of an assault upon Mary Camalig with...
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This is an appeal by plaintiffs from a judgment dismissing their amended complaint following the sustaining of a demurrer thereto after which plaintiffs failed to amend. *20 The question presented is whether the action is barred by a statute of limitations. Plaintiffs, husband and wife, allege in their amended complaint that on October 2, 1950, they ate some Del Mesa brand pe...
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Plaintiff wife appeals from a judgment granting respondent husband a divorce for extreme cruelty; dividing the community property of the parties; and awarding the custody of the infant sons, aged 7 months and 20 months, to appellant except for two 15-day periods in January and July of each year, when custody was awarded to respondent. There is no intimation in the entire record that either part...
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December 8,1953, this court made its order staying execution and enforcement of the superior court judgment in this case. This was done upon the representation of the defendant that she had been denied due process of law and that she was perfecting proceedings for review of the case by certiorari by the Supreme Court of the United States. This case was decided in this court September 29, 1953 (120...
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On February 5, 1953, a remittitur was filed in superior court case No. 566590 between the parties hereto, in which it was ordered that respondents therein (defendants Forster and Steinike) should recover their costs on appeal. Thereafter said Forster and Steinike filed their memorandum of costs and disbursements on appeal amounting to $574.60. Plaintiff Logan filed notice of motion to have such...
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On April 1, 1946, Raymond D. Herzog held a contract for the purchase of 325 acres of mountain land in Palm Springs, Riverside County, for the sum of $25,000. On that date he entered into an agreement with T. B. Weatherholt under and by virtue of which the two became joint adventurers in the purchase of the property, each to have a half interest in the venture. The agreement provided that the pu...
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This is an appeal from a judgment modifying and confirming as modified an award of arbitrators appointed pursuant to the arbitration provisions of a contract under which Hunt Construction Company constructed a dwelling house for John R. Doyle and Fern Doyle. The matter was heard upon the petition of Doyle for an order confirming the award and the motion of the construction company for an order ...
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Defendant was found guilty of bookmaking. Proceedings were suspended and he was granted probation. No final judgment of conviction was rendered. An order granting probation is deemed to be a final judgment, and a defendant may appeal therefrom. (Pen. Code, § 1237.) Defendant appeals from the judgment and from the order denying his motion for a new trial. He contends the evidence is insufficient to...
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Plaintiff, in an action for personal injuries, appeals from a judgment sustaining defendant State of California’s demurrer without leave to amend. Questions Presented 1. Can the court take judicial notice of the character of the operation of the Dumbarton Bridge by the State of California ? 2. Is that operation governmental or proprietary ? Complaint The complaint alleg...
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This is an appeal from a judgment denying a peremptory writ of mandate. The amended petition for writ of mandate alleged in substance that in 1939 petitioner passed the examination for regional referee, Department of Employment, the name of which office was later changed to senior referee, Department of Employment; that he was thereafter certified to said position and entitled to hold said office...
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Defendant and appellant was tried and convicted on a charge of grand theft. The appeal is based almost entirely on the sufficiency of the evidence. The only witnesses were appellant and the complaining witness who managed a market or grocery store in the city of Oakland. Appellant entered this market for the purpose of buying groceries and after picking up a number of different articles he got in ...
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Appellant was convicted of burglary and conspiracy to commit burglary. He appeals from the ensuing judgments and orders denying his motions for a new trial. The indictments in this case grow out of the plans of appellant and his confederates, Davidson and Perry, to burglarize Kay’s Drive-In, on Laurel Canyon Boulevard, in North Hollywood, and the subsequent unlawful entry of these premises and ...
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In a malpractice action plaintiffs appeal from a judgment entered on a directed verdict in favor of defendants. Questions Presented 1. 'Sufficiency of the evidence. 2. Is this court limited to the ground given by the trial court for its action? 3. Should evidence have been admitted to show that release of one tort feasor was not intended to release other tort feasors ? Record Plaintif...
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Defendants appeal from an order under section 953e, Code of Civil Procedure, granting plaintiff a new trial and vacating the judgment. *92 Question Presented Under the circumstances here, did the court abuse its discretion? Record The action is one for personal injuries claimed to have been sustained by plaintiff in slipping on the floor of defendant Hastings’ store...
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—Appeal bydefendant Sarah E. Hahn from a judgment decreeing foreclosure of a deed of trust and ordering a sale. In 1946, Young Hahn, uncle of plaintiff, and defendant were living together as man and wife. They were not married because Young is a Korean by birth and defendant is a Caucasian. They lived together from 1937 until May 29, 1951, when they separated. In August, 1946, Young a...
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This appeal is from a judgment entered in favor of respondents city' of San Mateo and Matt Thiltgen after their demurrer to appellant’s complaint was sustained without leave to amend. It is alleged in the complaint that the city of San Mateo is a municipal corporation; that it operated the San Mateo Municipal Golf Course to which the public was invited; that at the time of appellant’s inju...
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In this action for the wrongful death of plaintiffs’ mother, Katherine Louise Summers, judgment after verdict was rendered in favor of defendants, and plaintiffs appeal. The accident which resulted in the death of Mrs. Summers occurred at about 3 a. m. on United States Highway 101 about 15 miles south of Oxnard when Mrs. Summers was struck by a truck-trailer combination owned by Elmer Rand...
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Appellant Kostal was accused of robbery while armed with a deadly weapon by indictment which alleged that he had previously been convicted of robbery and had served time therefor. He pleaded guilty to th'e former conviction and, in a jury trial, was found guilty of armed robbery. He appeals from the judgment and an order denying his motion for a new trial. Defendant was represented by counsel a...
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Defendant was informed against and convicted in a nonjury trial of the possession of a preparation of heroin, in violation of section 11500, Health and Safety Code. He appeals from the judgment and from an order denying his motion for a new trial. The ground of the appeal is the claimed insufficiency of the evidence to prove defendant had possession of the narcotic, or that he knew it was a nar...
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In an action to foreclose a chattel mortgage defendants appeal from a judgment in favor of plaintiff. Questions Presented 1. Alleged abuse of discretion in permitting amendment of complaint. 2. Was there an executed oral agreement f 3. Should the court have found on depreciation? Facts This controversy grew out of a partnership contract between the plain...
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Respondents commenced an action against appellant to recover damages for breach of contract. Their amended complaint alleged in substance that on or about March 1, 1948, the parties entered into an oral contract whereby appellant agreed to purchase 83,670 pounds of beans from respondents at 17% cents per pound; that on numerous occasions thereafter appellant stated that he would take the *136 ...
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by plaintiff from a judgment of dismissal entered on an order sustaining the demurrer of defendant County of Los Angeles to the complaint without leave to amend in an action for damages for malpractice. The complaint alleges: the corporate capacity of the county of Los Angeles; it operates the Los Angeles County Hospital, referred to as “the hospital”; about November 4, 1951, plaintiff, by acci...
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Appeal by defendant, as executor of the will of James W. Henderson, from an adverse judgment in an action for damages for the failure of decedent to have a policy of life insurance in force on his life at the time of his death. On August 15, 1932, decedent and his then wife, Thelma, *147 entered into a property settlement agreement. Plaintiff Wilma is the daughter of decedent ...
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The basic problem presented on this appeal is whether the seventh paragraph of the will of Joseph F. Nunes so clearly describes the respondent as recipient of the bequest therein provided.as to preclude the introduction of extrinsic evidence that would tend to show that, in fact, the decedent intended to leave the bequest to appellant. The trial court determined, as a matter of law, that responde...
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This is an appeal by plaintiff Samuel A. Levin from a judgment declaring that plaintiff take nothing by reason of his second amended complaint. The judgment also provided that all parties recover their attorney’s fees under section 83.0, Corporations Code. The Martin C. Levin Investment Company is a family corporation, which was incorporated in February 1939, to take over certain real prop...
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This case is presented on an agreed statement on appeal and the only question is one of statutory construction. Appellant Seyman was appointed a deputy clerk of the Berkeley Justice’s Court on September 13, 1951; appellant Hubbs received a like appointment on September 24, 1951; and appellant Hansen was appointed to a like position on December 16, 1951. On January 1, 1952, the Berkeley Justice’s C...
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This action was based on a claim for damages allegedly caused by defendants’ breach of an oral contract. Judgment went for plaintiff in the sum of $3,892.14, plus 7 per cent interest thereon from December 31st, 1947, and costs of $175.46. Defendant William 'Kitagawa filed an *170 amended cross-complaint alleging that cross-defendant, George Capitelli, is indebted to him in the sum ...
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The present appeal is from a judgment decreeing that appellant James Minnfield and defendant Ada Lee, also known as Ada Lou Smallon Harris, held certain real and personal property in trust for the plaintiff-respondent Reece Harris, and ordering defendants to convey said property to respondent. Findings of the trial court were to the effect that prior to September 20, 1950, plaintiff Reece Harris a...
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As recited in appellant’s brief, “This is an appeal from that portion of the interlocutory judgment of divorce awarding the custody of the minor child of the parties to the defendant. “Plaintiff filed a complaint for divorce on July 30, 1952, in which she alleged, among other things, that there was one child, Tani Hale, two and one-half years of age, that said minor child was in her custody, and t...
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This is a petition asking this court to fix bail on appeal. It appears that on or about July 9, 1952, appellant herein was convicted in the Superior Court of the *185County of Los Angeles of violation of section 503 of the Vehicle Code, a felony. Proceedings were suspended and the accused was placed on probation. While appellant was on probation in the above-mentioned proceeding, the district atto...
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The principal question upon this appeal is whether or not a rear yard requirement of a municipal zoning ordinance continues operative and makes the land affected not “marketable” or not “free and clear of all incumbrances,” under the circumstances of this case. Plaintiff and cross-defendant R. H. Hartman owned an L-shaped parcel of realty near the intersection of George and First Streets in the...
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Plaintiff is a corporation with its principal place of business in Santa Clara County. Defendants are a partnership with their principal place of business in Los Angeles. Two of the partners, A. Lyon and William Lyon, reside in Los Angeles; a third, Leon Lyon, resides in Kentucky. Plaintiff purchased 100 barrels of brandy from defendants subject to an express warranty. After the merchandise had b...
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MacArthur Taylor, 'a minor, through his mother, Clara Taylor, as his guardian ad litem, brought suit for injuries suffered when he came in contact with defendant’s automobile. Clara Taylor joined in said suit her cause of action for medical and hospital expenses incurred in the treatment of the injuries of her son. The jury rendered a verdict for defendant and plaintiffs appeal. The accide...
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This is an action to set aside a judgment. A demurrer was sustained without leave to amend and the plaintiffs have appealed from the judgment which followed. The complaint, filed on August 20, 1952, alleges that in an action brought by Annie P. Carmichael a judgment was rendered on November 16, 1950, quieting her title, as against these plaintiffs, to certain real property in Kern County; that ...
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Contestants and appellants, father and son,' strangers to the blood of decedent Franklin P. Sherwood who died on January 20, 1952, filed a petition to contest his last will and testament and codicils thereto, on the ground of incompetency of deceased to execute a will, and on the further ground of undue influence. The will and codicils were admitted to probate on February 18, 19...
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The defendant was charged with the crime of assault with a deadly weapon, it being charged that on a certain day she committed such an assault upon the person of one G. Mehegan. A jury found her guilty as charged, and she has appealed from the judgment which followed. A quarrel occurred between the defendant and her husband about 2 p. m. on February 27, 1953. In response to a radio call several...
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was charged jointly with one Hurst and was convicted by a jury of the crime of robbery, first degree. Richard W. Petherbridge, public attorney, represented the defendants at the trial. Defendant McNeal filed his own notice of appeal in propria persona. After some delay, defendant informed this court that he desired the services of an attorney. This court appointed Mr. Petherbridge to represent th...
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These defendants were jointly charged with robbery. In the first count it was charged that on April 9, 1953, they took $90 from Jesus Carrillo by force and fear. The second count charged them with taking $50.50 from Demetrio A vina by force and fear. As to each count it was charged that they were armed with a deadly weapon, a .22 rifle and a 20-gauge shotgun. A jury found each defendant guilty of...
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This is the second appeal in this ease. The first was taken by plaintiff and resulted in this court setting aside a judgment for defendant notwithstanding the verdict for plaintiff and is reported in 111 Cal.App.2d 368 [244 P.2d 774]. Defendant then moved for a new trial, which motion was denied, and judgment was entered upon the verdict for plaintiff. Defendant appeals, from this judgment on the ...
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At midday on June 26, 1950, plaintiff Mary Hooper was driving her husband’s sedan on Bayshore Highway when it was struck from the rear by a truck owned by defendant John Wagner and operated by defendant Chester Bronson. This action for damages for injuries allegedly sustained by Mrs. Hooper and for damage to Mr. Hooper’s car ensued. After a trial by jury a verdict for defendants was returned, u...
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This is an appeal from a judgment entered in favor of respondents following the sustaining of a demurrer to appellant’s third amended complaint which appellant thereafter declined to amend. As set forth in the complaint, the facts appear quite complicated. In their bare essentials, they are as follows; On August 25, 1936, W. J. Dubil and E. J. Hubik obtained a United States patent for the ...
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123 Cal.App.2d 264 (1954) ROXIE UPDECK, Respondent, v. RILEY SAMUEL, Appellant. Civ. No. 15594. California Court of Appeals. First Dist., Div. Two. Feb. 17, 1954. Edward D. Mabson for Appellant. Arguello and Giometti, Alex L. Arguello and Marvin G. Giometti for Respondent. NOURSE, P. J. Plaintiff sued on a claim of title for real property and for damages. Her action is predicated upon an a...
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This is an appeal by plaintiff Paul Kruger from a judgment in favor of defendants, the city of Oakland, and Charles A. Reed, Arthur Davis, Joseph J. Ward and James J. Sweeney, Jr., in an action for wrongful conversion of plaintiff’s personal property by the aforementioned officers and employees of said city. The judgment was also in favor of the city on its cross-complaint, against Paul Kruger and...
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is an appeal from a judgment of nonsuit in favor of defendant, respondent herein, following defendant’s motion at the completion of plaintiff’s evidence in a personal injury action by a guest based on a claim of wilful misconduct on the part of the driver. On the night of August 4, 1951, respondent, Jack Richards, invited plaintiff Hallman to ride with him as a guest in his *276 1951 Ford eou...
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These two cases are presented on an agreed statement on appeal (rule 6a of Rules on Appeal) , which statement reads in part as follows: “1. In 1948 the State Board of Equalization issued to Adam A. Schmierer an off-sale license to sell wine and beer (unrestricted as to alcoholic content) at the grocery store operated by Schmierer and located at 2775 Middlefield Road in the City of Palo Alt...
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This is an appeal by Lee Lapidus, surviving widow of decedent Abraham Lapidus, from an order and judgment denying and dismissing her contest of the premarital will of said decedent based on section 70 of the Probate Code which reads: “If a person marries after making a will, and the spouse survives the maker, the will is revoked, as to the spouse, unless provision has been made for the spouse b...
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Plaintiffs appeal from a judgment of dismissal for failure of the amended complaint to state a cause of action. Plaintiffs initiated a suit in equity against the heirs of Mary Virginia Jones, in which they sought quasi-specific performance of an alleged oral agreement by Mary Virginia Jones to make a will leaving to plaintiffs all property she owned at the time of her death, and to impress...
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Appeal by defendant from an adverse judgment in an action to recover a broker’s commission. In October, 1950, defendant was the owner of a parcel of realty improved with an apartment building in Los Angeles. The property was encumbered with a first deed of trust in the then approximate amount of $49,000. According to the terms of the note secured by the deed of trust, it could not be paid ...
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Plaintiff, cross-defendant, respondent and cross-appellant (hereinafter referred to as plaintiff) in 1948, under the terms of a written share-rent lease, leased two 80-acre parcels of land from P. C. Weaver and wife for the purpose of farming cotton and re-leased this acreage again on March 10, 1949. After the execution of the last lease the Weavers sold the 160 acres to defendants, cross-compl...
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On October 28, 1948, the appellants executed an oil and gas lease in favor of the respondents Fickle, Hink and David. The lease provided, among other things, that the lessees should be obligated to drill upon the premises; *326 that their interest might be forfeited for a violation of any of the terms of the lease; that upon any quitclaim, termination or surrender of the lease the lessees would...
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Plaintiff sued for reinstatement in the defendant union after an alleged wrongful expulsion. He also asked for damages in the loss of wages and for mental suffering. The complaint alleges that the officers of the union continued to operate under a purported amended constitution which was illegal and void and was expressly held void in August, 1949, in Weber v. Marine Cooks’ & S...
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From a judgment in favor of plaintiff after trial before the court without a jury in an action to recover for the value of merchandise purchased from plaintiff by defendant, defendant appeals. Viewing the evidence as we must in the light most favorable to plaintiff (respondent) pursuant to the rules set forth in Estate of Isenberg, 63 Cal.App.2d 214, 216 [2] [146 P.2d 424], the ...
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Appeal from judgment after demurrer to the complaint had been sustained and no amended pleading filed. The complaint alleges that defendant maintained the “Carpinteria Dump” on a public ocean beach where the residents of the county were allowed to dump their garbage and rubbish on payment of a fee and wheré children frequently played and which was made especially attractive to children by the l...
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Appellant recovered judgment against defendant Karsten on the demand note of the latter made in favor of one Josephine Falzone, but was denied recovery as to all others. * Defendants Florence Karsten and Catherine Ingrao are sisters and for some time prior to December, 1946, had, as a copartnership, operated the Venetian Dining Room and Gardens in Altadena. On January 25, 1947, Flo...
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Defendant appeals from orders denying (1) his motion to set aside a default judgment pursuant to the provisions of section 473 of the Code of Civil Procedure, and (2) his motion to reconsider the previous order. Facts-. Plaintiff commenced an action to recover the sum of $4,000 representing a balance of defendant’s indebtedness of $7,000 to plaintiff’s assignor which was evidenced by a writin...
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Respondent agreed to loan appellant $10,000 to be secured by a trust deed upon certain real property in San Bernardino County. Five thousand of such sum was to be used to pay off an existing trust deed on the property, the balance to be expended for improvements on buildings and a well located on the property. Respondent advanced $5,179.58 to pay off the trust deed and $2,252.27 for materials a...
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This is a motion to dismiss an appeal from a minute order denying plaintiff’s motion to vacate and set aside a final judgment. Facts: May 31, 1950, judgment was entered in favor of defendant. Plaintiff thereupon appealed and the Supreme Court on October 28, 1952, affirmed the judgment of the trial court. (Stafford v. Realty Bond Service Corp., 39 Cal.2d 797 [249 P.2d 241].) A subsequent petition f...
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Appellant was accused in six counts of having violated section 288 of the Penal Code. Three of the offenses occurred in July, 1951; three in the following August. He was arraigned on September 18th, pleaded not guilty, and his trial was set for October 23. On the latter date he appeared with his counsel, and with leave of the court withdrew his plea of not guilty and pleaded ‘ ‘ guilty as charged...
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Convicted of assault with intent to commit robbery (Pen. Code, § 220), appellant demands a reversal of his sentence and of the judgment on the ground of (1) insufficiency of the evidence and (2) the court’s rejection of requested instructions. There is no want of inculpating proof. By the prosecutrix it was established that having left her work at 2 a. m. she rode a street ear homeward bound an...
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Convicted of bookmaking (Pen. Code, § 337a, subd. 1), defendant appeals from the judgment and the order denying his motion for a new trial. He demands a reversal on the ground of the insufficiency of the evidence. He maintains that “no testimony was introduced to establish any of the conversation amounted to a wager on a horse race.” Prior to his arrest on February 20, 1953, appellant had been ...
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Appeal by Walter Newbauer from a judgment against him after the demurrer of Benjamin Codd to Newbauer’s cross-complaint was sustained without leave to amend. Sattinger sued Newbauer and Codd, individually, and as partners doing business as Keene Packing Company. The suit was for damages for breach of an alleged contract of Newbauer and Codd, as partners, to can dog food for plaintiff, and also ...
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Plaintiff brought this action against Salih Brothers, a partnership, and Fred M. Salih and Lee Salih individually and as partners, upon an alleged agreement whereby plaintiff agreed to render services in the promotion of two corporations (Beverly Investment Co., Inc., and Burbank Amusement Co., Inc.) and defendants agreed to deliver to *372 plaintiff 770 shares of the investment company and 231...
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Defendant appeals from a conviction of two counts of violation of section 470, Penal Code, and from denial of his motion for a new trial. While represented at the trial by the public defender, defendant appears here in propria persona. He makes the blanket contentions that the evidence was insufficient, that he was denied due process of law, that the witnesses against him committed perjury, that t...
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Respondent sued to quiet title in itself to two motor vehicles. The judgment declaring respondent to be the legal owner and enjoining appellants from requesting the issuance of certificates of ownership in the name of Ellis R. Taylor or his corporation or of any other person, firm or corporation is here under attack. The subjects of the action are a sedan and a coupe. Respondent has its pr...
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Plaintiffs and appellants Archie Stinson and wife brought this action against defendants and respondents Viola G. Blodget, Claude Blodget et al., in which they *391 allege that defendants claim an interest adverse to that of plaintiffs in certain described real property in Kern County, consisting of two small houses located on two small lots. The evidence shows that plaintiffs...
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Petitioner, having prepared and filed this petition for habeas corpus and being without funds, requested the court to appoint counsel to represent him in the presentation of his case. Counsel was appointed and has discharged his duties toward his client with commendable zeal and efficiency, thoroughly developing every facet of the case. *396 May 6, 1936, petitioner McManus was sentenced to st...
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In this action to quiet title it was stipulated that plaintiff, Selea Rich, was the owner of three parcels of real property, title to which was in defendant, Walter M. Crieger. Defendant collected the rents and took care of the property for plaintiff from December of 1948, when she deeded it to him, until this suit was filed October 2, 1951. It was further stipulated that in the accounting between...
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Plaintiff Olga Louknitsky has appealed from an interlocutory decree which awarded her a divorce upon the ground of extreme cruelty. She asserts error in (1) the finding that all the property belonged to the community, (2) the portion of the judgment which ordered sale of the realty and division of the proceeds, and (3) failure to award alimony to her. The parties waived findings of fact. Howeve...
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This is an appeal from a judgment denying appellants’ petition for a writ of mandate. Appellants, the members of the Santa Clara County Board of Supervisors, sought the writ to compel respondent, controller and auditor of said county, to pay their salaries at the rate of $6,000 a year, as provided by Government Code, section 28106, as amended in 1951, rather than at the rate of $3,600 a year un...
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Joseph L. Valentine died on May 18, 1949. He was survived by a son and by his widow, Katherine L. Valentine, who is the respondent herein, and also by his parents, Frank and Mamie Valentine, the appellants. The decedent left a holographic will which was admitted to probate. The appellants attack three decrees of the Superior Court of Los Angeles County, sitting in probate, in the estate of...
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Plaintiffs brought this action on their own behalf and on behalf of numerous other persons alleged to be similarly situated for the purpose of obtaining a declaratory judgment defining the rights and duties of the parties under certain contracts to purchase dwelling houses from defendants. An answer was filed by defendant and also a cross-complaint by which defendant sought to recover damages. Whe...
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Defendants appeal from a judgment for plaintiffs in an action for damages for breach of the following contract: 11 This agreement entered into Aug. 10, 1950 between Bryan Smith Farms and C. A. Unruh & Howard J. Miller. “C. A. Unruh & Howard J. Miller agrees to grow 42 acres of cucumbers on their ranch located near the Kern County Airport and to harvest and deliver the same to the Brya...
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This action arose out of the construction of certain houses on lots owned by the defendants. In December, 1950, an. “Owner-Contractor Agreement” was entered into by Myron B. Levi and C. M. Maaskant as “Owner” and *440Richard Goodenough, Robert Goodenough and Dick B. Williams as ‘ Contractor, ’ ’ for the erection of houses on these lots. This contract provided that the “Contractor” agreed to provid...
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On July 16, 1952, Cecil H. Willis, hereinafter referred to as “Willis,” filed a petition herein for appointment as guardian of his minor son, Gerald David Willis, then of the age of 2 years, hereinafter referred to as “Gerald.” On August 8,1952, Wallace Neill and his wife, Margaret, who then had custody of the child, filed a petition in the juvenile court to have him declared free from the custod...
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This appeal is from a declaratory judgment interpreting the provisions of a lease; from a subsequent order amending the judgment, which order was made after notice of appeal from the judgment was filed, and from an order for a writ of possession of the leased premises, made after a notice of appeal from the amended judgment was filed. Respondents, as partners, held a master lease on a stor...
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Petitioner James J. Sehubal appeals from an order denying admission to probate of a document purporting to be the last will of Josephine B. Corbett, deceased, and denying his petition for letters testamentary. The sole question presented is the sufficiency of the evidence to support the court’s findings of undue influence and mental unsoundness. Pacts On April 4, 1951, Josephine B. Corbett,...
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This is an appeal by plaintiff, a licensed real estate broker, from an adverse judgment in an action to recover commissions from defendants. The record reveals that defendant George Stearns was a subdivider of tract properties. On January 13, 1947, plaintiff prepared and submitted to defendant Stearns a written contract, the pertinent portions of which read as follows: “For and in con...
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Defendant was convicted of issuing a check without sufficient funds, in violation of Penal Code, section 476a. He appeals from the ensuing judgment and order denying his motion for a new trial. *489 Defendant was general manager of the Summit Furniture Manufacturing Company, a copartnership comprised of the four Rogal sisters. Elizabeth was the active partner of the firm. The company was enga...
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Action by parents for damages for wrongful death of their minor son, allegedly resulting from negligence of a public school district, board of education, and superintendent of schools in maintaining blacktop paving under playground equipment, and in supervising the play of the son, on the school grounds. In a trial by jury there ’ was a general verdict for defendants, and there were three special...
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The history of this controversy first shows an action by plaintiff in claim and delivery to recover possession of certain grading equipment, or if recovery could not be had, then the market value thereof. When the case was called for trial defendant county moved for judgment on' the pleadings. Apparently the motion was submitted pending the introduction of certain testimony, following which the tr...
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Plaintiff commenced an action against defendant to recover the sum of $1,004 alleged to be due from defendant to plaintiff. Defendant filed an answer denying the material allegations of the complaint and also filed a cross-complaint alleging that plaintiff had agreed to do and complete certain work for defendant within a specified time and because of plaintiff’s failure to do so defendant had bee...
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This is an appeal upon the judgment roll from an order granting a new trial to Artie Norgard Gordon, respondent herein. Plaintiffs commenced an action against defendants for an injunction and for damages resulting from alleged diversions of water from a watercourse which flowed through the *518 lands of the parties. One of the defendants named in the caption of the complaint was “Artie Norgar...
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In an action for contribution between former partners of a dissolved partnership, plaintiffs appeal from the judgment in favor of defendant. *524 Questions Presented 1. Primarily,—whether on dissolution plaintiffs assumed the obligations of a certain contract. 2. Correctness of the findings. (A companion case instituted by defendant to reform the agreement of dissolution was consolidated ...
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In a quiet title action, defendants Antone L. Rodrigues and Lois Rodrigues appeal from a judgment in favor of plaintiff. The question presented is the sufficiency of the evidence to support the court’s finding of lack of delivery of a certain deed. Evidence Plaintiff and defendant Antone are brother and sister, and are two of the eight children of Mary E. Rodrigues, who acquired the realty ...
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Plaintiff appeals from a judgment for respondents, husband and wife, in a suit for real estate broker’s commission. In the action plaintiff was awarded judgment for $975 against Mrs. Dorothy N. Murphy, a codefendant with respondents. Mrs. Murphy is not a party to this appeal. *534On July 27, 1951, respondents signed a “Deposit Receipt” presented to them by appellant. This receipt was for $100 and ...
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Defendant appeals from her conviction of four counts of violating section 274, Penal Code (abortion), and from the order denying new trial. Defendant was charged with abortions on four women, respectively. She concedes the sufficiency of the evidence. She could hardly do otherwise, in view of the testimony of the four prosecuting witnesses and other evidence in the case. It is therefore unneces...
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This is an appeal from a judgment in favor of plaintiff and respondent Anna Mackenzie, in the sum of $3,250 and interest from May 6, 1950, and against defendants William and Ella Yoelker, brother and sister-in-law of plaintiff. Anna Yoelker, mother of Anna Yoelker Mackenzie, respondent, William Yoelker, appellant, Bernard Yoelker, and Marie Yoelker Scheger who died on March 20, 1950, had execut...
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The appellant was convicted of the crime of pimping. He appeals from the judgment and the order denying his motion for new trial. The only substantial evidence introduced against appellant came from the complaining witness. Appellant, a Negro, operated a hotel in San Francisco. The complaining witness, Claire Strange, a white woman, went to live in this hotel some time in December, 1952, with one...
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I concur:The judge noticed that petitioner was emotionally upset by the proceedings and for that reason removed him. Under the circumstances the fact that appellant was disturbed by what was going on was not evidence of incompetency. It was enough to disturb any normal, self-respecting person. A petition for a rehearing was denied March 15, 1954, and respondent’s petition for a hearing by the Supr...
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Plaintiff was struck by a car owned and operated by defendant Carey, an employee of Boston Shoe Company. Jack Smith also was sued as an owner of the car but there is no discussion in the briefs as to his connection with the accident. Plaintiff’s evidence was presented to a jury. When plaintiff had rested, the motion of Boston Shoe Company and Smith for a nonsuit was granted, and judgment was orde...
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This is an appeal, on an agreed statement, from an order fixing ordinary executor’s commission and attorneys’ fee in an estate. Rufus A. Phillips died testate on October 1, 1949. During the course of administration, and in connection with a proceeding to determine heirship, the court made an order on May 28, 1951, in which, after finding that all of the property described in the inventory was t...
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By the instant action, plaintiff sought injunctive and declaratory relief and also an accounting. The complaint alleges that by a written agreement dated August 9, 1948, plaintiff licensed defendants to distribute a wax process for the treatment of fruits and vegetables in preparation for market. The patent for this process was owned by plaintiff. The license rights granted by the agreemen...
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In an information filed by the district attorney of Los Angeles County, defendant was charged with the crime of assault with a deadly weapon. To the aforesaid charge he interposed a plea of not guilty. Trial by jury was appropriately waived and it was stipulated that the matter be submitted to the court on the transcript of the preliminary examination, both parties reserving the right to offer add...
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Appeal by plaintiff from an adverse judgment in a suit for declaratory relief, to establish a constructive trust, and for an injunction. On May 16, 1946, Eddie and Sarah Robinson, husband and wife, made a joint will by which each of them bequeathed and devised all of his and her property “after the death of the two of us” to plaintiff, Howard C. Daniels. There was no evidence of the making of a...
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This is a proceeding to review a decision of the Industrial Accident Commission rendered after reconsideration. The decision adopted and affirmed the findings and order that had been made and filed, prior to reconsideration, by the referee who conducted the original hearing; a finding that the death of the employee was not proximately caused by an injury arising out of and occurring in the cour...
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India Paint and. Lacquer Company, hereinafter referred to as “India,” sued United Steel Products Corporation, hereinafter referred to as “United,” to recover the value of certain paint or baking enamel sold and delivered to United. By its amended cross-complaint United sought damages from India for its losses (1) due to sticky paint, and (2) for losses occasioned by flash fires in its baking ov...
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Plaintiff recovered judgment against Arc-Saws, Inc., a corporation, and George L. Duke in the sum of $10,000 plus interest, and defendants appeal. The court found the following material facts: Defendant Duke, an attorney at law, was in the month of January, 1947, and ever since has been an officer and director of defendant corporation; he was then attorney for plaintiff, who reposed the utmost ...
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Plaintiff, a general building contractor, alleges in this action for declaratory relief that he was the lowest responsible bidder for the construction of a school building in Fresno; that he was entitled to the award of the contract for such construction; that contrary to law, the defendant board of education neglected and refused to award the contract to him and awarded it to the next lowest bid...
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This is an appeal from a judgment of the Superior Court of San Mateo County in a personal injury action in the sum of $5,500 and costs of $242.20 in favor of plaintiff Robert C. Lebkicher and against the administrator of the estate of Theola Louise Aitken, the deceased driver of the car involved in the accident, and Thomas Aitken, Jr., her husband. The accident in which plaintiff was injur...
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Plaintiff and appellant brought this action to quiet title to and establish a trust in certain oil rights, and for an accounting. The original complaint alleged that plaintiff was the owner of a one-sixteenth interest of all oil, gas and other hydrocarbon substances saved and produced from certain described parcels of land in Fresno County, which rights were commonly known as landowner’s royalt...
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This is an appeal from a judgment granting a peremptory writ of prohibition commanding the defendants to desist and refrain from taking further proceedings in a criminal action, save and except to dismiss said action. The petition for the writ alleged, among other things, that a criminal complaint was filed in the justice court charging the petitioner with a violation of section 270 of the Labor C...
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P. Wogman, the only child of Hans Petersen, a deceased trustor, her husband Waif rid, and their adult child Vincent, brought this action in equity against *659 the trustee of the trust and the guardian ad litem for the unborn and unascertained heirs of Alta, to modify and/or terminate a trust created by the will of Hans Petersen, who died in 1928. Eggers, the guardian, f...
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In a proceeding in eminent domain to acquire certain real property of the defendant, judgment was rendered in favor of the plaintiff, assessing defendant’s compensation and damages at $17,500 and awarding him costs in the sum of $47.09. Defendant appealed from the judgment and that appeal is pending. *670 After entry of the judgment and payment of the full amount of the judgment into court by...
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The sole question, on this appeal is: Did the trial court abuse its discretion in denying defendant’s request for a continuance of the hearing on his application for probation f Defendant was charged in count one with a violation of Penal Code, section 337a, subdivision 1, and in count two with a violation of subdivision 3 of the same section. He entered a plea of guilty to count one. Proceedings ...
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This is an appeal by plaintiffs from an adverse judgment in an action instituted by plaintiffs for injuries received as the result of a collision between plaintiffs’ car and a truck owned and operated by defendant company. Following the entry of the judgment, plaintiffs’ motion for a new trial was denied and this appeal followed. The collision occurred at a point on the Feather River Highway wh...
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Question: Does the evidence support the finding of the trial court that defendant had fully paid the $40 per month which the decree of divorce between the parties ordered him to pay for the support of their three minor children whose custody the decree awarded to the plaintiff? Our examination of the record convinces us that it does. Upon the basis of that finding, the trial court made an order re...
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John R. Walker and Mural Tashjian were charged jointly with the crime of burglary with explosives. (Pen. Code, § 464.) On the first trial the jury was unable to agree on a verdict. Prior to the second trial Mural Tashjian pleaded guilty to the crime of second degree burglary. Walker was convicted in a second jury trial. He appeals from the judgment of conviction and from an order denying his motio...
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On June 14, 1948, petitioner filed with respondent board a written application for registration as an electrical engineer without examination. On March 29, 1949, he was notified by a letter from respondent board that his application was denied. Thereafter he filed a petition for a writ of mandate to compel the issuance to him of said certificate of registration. This appeal is- from a judgment ...
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Question: When a verified complaint charging a violation of section 499 of the Penal Code is presented to the judge of a justice’s court, must the judge before filing the complaint and issuing process thereon examine the case, take evidence and determine therefrom that there is reasonable and probable cause to believe that the offense charged has been committed and that the defendant committed ...
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Appeal from a judgment denying a petition for a writ of mandate to require the Commissioner of Corporations to grant a permit for the issuance of capital stock by Master Charge. The application to the commissioner was denied upon the ground that Master Charge had not procured a license as a lender under the Small Loan Law, sections 24200-24261, Financial Code. Appellant proposes to engage ...
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Plaintiffs above-named, husband and wife, filed an action against defendant for personal injuries and property damage alleged to have been sustained by them in a collision between automobile operated by plaintiff husband and a truck operated by an employee of defendant. Defendant in his answer denied any negligence on the part of-his employee, pleaded the contributory negligence of plaintiffs, an...
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Plaintiff commenced an action against defendant seeking to quiet her title to certain real and personal property in the city of Sacramento and for damages resulting to plaintiff from the possession of said property by defendant. Defendant filed an answer denying the material allegations of the complaint and also setting up the defense that defendant was the owner of the property and that plaint...
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This is an.appeal from a money judgment for the purchase price of certain meat and meat products which the trial court found were purchased by defendant from plaintiffs. The complaint was filed in San Joaquin County and the action was transferred to Solano County. The complaint contains three counts, i.e., a common count for goods sold and delivered, an open book account, and an account stated. Ea...
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Plaintiffs appeal from a judgment of dismissal entered after the demurrer of defendants city of Bakersfield, Leland Gunn, Justus A. Olssen and Marian S. Irvin was sustained without leave to amend. The action was for injune *729 tion against the city and its executive officers to prevent alleged irregular and unauthorized zoning and other action. The principal question involved is w...
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Defendant appeals from a judgment in favor of plaintiff, in an action for violation of certain sections of the Highway Carriers’ Act. (Stats. 1935, ch. 223, as amended, now Pub. Util. Code, § 3501 et seq.) Questions Presented 1. Sufficiency of proof of service of Public Utilities Com- • mission’s decision establishing minimum rates. • 2. Sufficiency of pleadings. 3. Variance. 4. Was the...
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This is an appeal from a judgment and an order denying a motion for a new trial. Appellant was charged in an indictment with eight counts of murder. He was convicted of the included offense of manslaughter in eight counts and was sentenced to the state prison at San Quentin for the period prescribed by law for each count, the sentences to run concurrently. Early in the morning of July 22, 1951,...
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Plaintiff and defendant were married in April, 1940. In October, 1951, plaintiff sued for divorce upon the grounds of extreme cruelty and desertion, seeking also the custody of their two children then 4 and 6 years of age, an order for their support, and an award to her of all the community property. Defendant filed an answer in propria persona in which he denied all of plaintiff’s allegations ex...
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On May 1, 1945, appellants, Bert Ellis and Florence Ellis, as first parties, and respondent Hadley, as second party, entered into a written agreement whereunder they agreed to jointly associate themselves in raising turkeys for the market. The agreement contained *759provisions that fixed the term of the joint enterprise as ending December 15th of that year and declared that it could not be extend...
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Under the authority of Reeves v. Reeves, 34 Cal.2d 355 [209 P.2d 937] the appeal in this case must be dismissed. The clerk’s transcript shows that judgment in the action was entered on April 7, 1952. A motion for new trial was made and denied on June 4, 1952, and notice of appeal was filed on July 3, 1952. The case was submitted to the court on an agreed statement of facts. There was ther...
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Both parties have briefed this appeal on the assumption it was taken from the judgment. However, reference to the transcript discloses that the appeal is limited to the order denying plaintiff’s motion for a new trial. As it is settled beyond question (Code Civ. Proc., § 963, subd. 2) that an appeal does not lie from an order denying a new trial, this appeal must be dismissed, and it is so ordered...
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Motion to dismiss appeal. This was an action brought by appellant to recover damages for personal injuries. The record discloses that on the 29th day of September, 1953, judgment was rendered for respondent and against appellant and said judgment was entered on October 1, 1953. No motion for new trial was made. Notice of appeal was filed on November 4, 1953, said appeal being taken to the District...
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Appellant was charged with assault with a deadly weapon (Pen. Code, § 245) allegedly committed on December 7, 1952, and with two prior felony convictions. He pleaded not guilty to the assault but admitted the two prior convictions. He was found guilty by the court, jury trial having been waived. On December 7, 1952, an assault with a knife was perpetrated on appellant’s wife, with whom he was n...
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From a judgment in favor of plaintiff after trial before a jury in an action to recover damages for the wrongful death of plaintiff’s husband, defendants appeal. Viewing the evidence as we must in the light most favorable to plaintiff (respondent) the essential facts are these: On December 26, 1950, defendant General Petroleum Corporation entered into a writing with' Southern California Gas Compan...
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In this action for personal injuries sustained by plaintiff when hit by a taxicab owned by defendant Yellow Cab Company, a corporation, and operated by defendant Richard E. Byers, verdict and judgment were for plaintiff in the sum of $5,000. Defendants were granted a new trial ‘1 on the ground of the insufficiency of the evidence to sustain the verdict,” with directions that the new trial be had ...
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Daniel McSweeney died on February 22, 1946, leaving an estate valued at $53,197.92. His will disposed of only a portion of his property. In April of 1946, Alexander and Eleanor Welte, husband and wife, were appointed joint executors of the estate, and have so served ever since. On May 29, 1950, a decree of partial distribution was rendered, ordering distribution of property valued at $36,446.97, a...
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Petition for writ of habeas corpus to secure release from custody under a commitment for contempt of court. Questions Involved 1. Upon a hearing of a contempt charge can the defendant be compelled to testify? 2. Is the affidavit for the order to show cause sufficient concerning disobedience of the court’s order? 3. Regularity of order appointing referee. 4. Effect of commitment on two counts,...
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On September 17, 1951, defendant Teters executed and delivered to Wes Beeman Productions a promissory note for $3,800, payable November 1, 1951. Concurrently therewith, a preliminary agreement was executed by Wes Beeman Productions, as party of the first part, and John L. Carpenter and defendant Teters, as parties of the second part. This agreement provided that the note and property rights to a c...
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This action involves renewal commissions on life insurance claimed by an agent to be due him from the general agent of Pacific National Life Assurance Company, and from that company. The parties entered into a written contract dated July 16, 1945. It was agreed that the agent would be paid commissions upon the cash premiums on new policies, in accordance with a schedule in the contract, and ren...
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Appellant’s recovery was denied by a jury in his action for property damage and personal injuries resulting from a trivehicular collision on a public highway. His grounds of appeal are errors in the admission of certain testimony and in refusing to give a requested instruction. *815 About 4 o’clock in the afternoon while appellant was driving east on Anaheim-Telegraph Road in a small station ...
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On February 27, 1953, Mrs. Kahn sued her former husband for $93,000 and interest tin a judgment obtained by her on October 31, 1925, in Cuyahoga County, Ohio. * From her pleading as finally settled, it appears that prior to the judgment both parties resided in Ohio; that they were husband and wife and had three children, Rita, Helen and Joyce; Mrs. Kahn instituted an action, caused personal ser...
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Defendant, convicted of robbery, seeks a reversal on the grounds of (1) the insufficiency of the evidence, (2) deprivation of his liberty without due process of law, (3) admission of unlawful evidence, (4) rejection of offered instructions. The Evidence Is Sufficient Two associates of appellant, Dallas and Bernita Blumenthal, entered the Hofgaarden Medical Center, a hospital, in Alhambra, on ...
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Appeal from an order of the probate court settling accounts and allowing commissions and fees. Elizabeth C. Smith died testate on December 16, 1947. Her will was admitted to probate; and Dessie D. Johnston, named therein, was appointed executrix. Dessie died testate on August 18, 1949. On September 21, 1949, Emilie Choate, a daughter of Dessie, was appointed administratrix with the will an...
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Plaintiff brought this action against A. Ablow, referred to as defendant, to recover moneys alleged to have been paid by him to defendant in violation of the usury law. On March 29, 1950, defendant, through a broker, agreed to loan plaintiff $40,000, to be evidenced by two promissory notes: one for $35,000, due three years after date with interest at 6 per cent, principal and interest paya...
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The complaint herein sought damages for fraud in reference to various false statements and representations made to induce the plaintiff to enter into certain written agreements relating to the production of stage plays to be presented at Harout’s Ivar Theatre in Hollywood. There was a cross-complaint by appellants Harout for breach of contract; likewise, a cross-complaint by appellant Engel for b...
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These actions for personal injuries and wrongful death arose out of a collision in Madera County, California, between a 1936 Ford sedan in which the plaintiffs were riding, and a truck and trailer owned by John A. Lacey, doing business as Lacey Trucking Company. Defendant Fordiee was operating the truck at the time of the accident. Mr. Lacey is a resident of and has his principal place of busines...
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Plaintiff appeals from an order denying his motion for a final judgment of divorce. In 1949 plaintiff commenced an action for divorce. Defendant filed an answer to the complaint, and also filed a cross-complaint for separate maintenance. On January 31, 1950, after a trial, an interlocutory decree of divorce was granted to plaintiff; defendant was awarded custody of the two minor sons, 18 and 20...
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The first cause of action of the complaint alleged that within two years last past defendant became indebted to plaintiff for money loaned in the sum of $4,125, which defendant promised to repay, and credit was given for $225 paid on account. In the second cause of action it was alleged that the loans were obtained by means of fraudulent representations and pretenses of the defendant. The represe...
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On August 18, 1952, appellant filed in the Superior Court of Yolo County a petition for her appointment as guardian of Thomas F. Lee, Jr., the 5-year-old child of appellant and respondent. Her petition alleged that the minor was a resident of Yolo County and was residing with her in said county; that respondent father resides at Columbus, Ohio; that by a decree of the Court of Common Pleas in F...
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Plaintiffs commenced an action to recover for personal injuries and property damage resulting from a collision between a Lincoln two-door sedan and a dump truck loaded with gravel. Plaintiff Wilson was the driver of the Lincoln automobile, and the other plaintiffs were guests in the car. The dump truck was being driven by defendant Gurney, its owner. Defendant Gurney filed an answer denying the ma...
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From a judgment in favor of defendants after trial before a jury in an action to recover damages for alleged negligence resulting from an automobile accident, plaintiff appeals. Facts: * April 8, 1951, at about 8:07 p. m. plaintiff was walking on the south side of Yentura Boulevard approaching the intersection of Berry Drive and said boulevard. At the *896 intersection where there were pa...
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From a judgment in favor of defendants after trial before the court in an action for partition, plaintiffs appeal. We do not pass upon the merits of the appeal in this case for the reason that appellants’ opening brief wholly fails to meet the requirements of rule 15(a), Rules on Appeal, 36 Cal.2d 1, 15. Rule 15(a) reads thus: “Each point in a brief shall appear separately under an ap...
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This action was commenced as one in interpleader. The plaintiff alleged that the defendants Eyman and Weller claimed adverse interests in the proceeds of a note given by plaintiff to Weller, and assigned by him to Eyman. By appropriate pleadings Weller and Eyman each claimed the money, Eyman relying on an assignment of the note and a claimed breach of contract and Weller claiming that the contrac...
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This is an appeal from an order granting a change of place of trial. The first count of the complaint in this action alleged that on January 30, 1952, an account was stated in the county, of Tulare by and between the plaintiffs and the defendants finding that $825 was due to the plaintiffs, which amount the defendants agreed to pay. In a second count, it was alleged that within four years last pas...
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Appeal from an order denying a petition for a writ of error coram nobis. The appellant was charged with burglary and, in a second count, with assault with intent to commit murder. An attorney was appointed to represent him. An amended information was filed adding charges of three prior convictions of burglary, one in this state and two in other states. When appellant denied the *916 priors hi...
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Defendant was charged with and was convicted by a jury of burglarizing the Palm Motel on December 31, 1952. A motion for new trial was denied. The claim on this appeal is that the evidence was insufficient to justify the verdict; that the testimony of an accomplice was not sufficiently corroborated; that evidence of similar offenses was inadmissible; that there was no proper identification of...
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This action was brought by the state, through its Department of Public Works, to condemn the front 96 feet of a tract of land having a 300-foot frontage owned by the Schultz Company. The land abuts Highway 101 in Marin County and was condemned as part of a plan to convert the highway into a freeway, with certain outer highways as feeders. The jury fixed the value of the condemned parcel at $5,7...
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Plaintiff appeals from judgments in favor of defendant California Toll Bridge Authority and defendant Department of Public Works sustaining demurrers without leave to amend to the complaint described in Bettencourt v. State, No. 15668, this day decided by us, ante, p. 60 [266 P.2d 201]. These appeals are companion appeals to the one there considered. Defendants Toll Bridge Authority and Department...
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Defendant was convicted of grand theft. He admitted two prior felony convictions, for which he was imprisoned in other states. The public defender represented defendant on his trial by the judge of the superior court. On his appeal, defendant has prepared his own briefs. He contends that the amended information does not state a criminal offense, and that the evidence is insufficient to support his...
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Defendant and appellant, Reuel S. Amdur, was convicted of a violation of section 12.1 of Ordinance No. 3262-N.S. of the city of Berkeley, in that said defendant on or about the 6th day of February, 1953, “unlawfully placed and caused to be placed on a sidewalk a table which obstructed, restricted, and prevented the use of a portion of said sidewalk.” On this appeal appellant asserts (1) th...
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In these two cases, each involving a group of claimants, the Unemployment Insurance Appeals Board denied unemployment benefits to the respective petitioners. Both groups sought a review of these determinations by writs of mandate in the superior court pursuant to the provisions of section 1094.5 of the Code of Civil Procedure. These petitions were denied. Petitioners appeal. The two proceedings...
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This is an appeal from a judgment denying an application for a writ of mandate. The petitioner (hereinafter designated Bohn) was a licensed real estate broker for more than 20 years. On December 18, 1951, an accusation was filed with the Real Estate Commissioner charging her with a violation of the provisions of sections 10177.5 and 10177, subdivision (f), of the Busi-' ness and Profession...
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Action for damages for personal injuries allegedly sustained by plaintiff in a collision of three automobiles. In a nonjury trial judgment was for defendants. Plaintiff appeals from the judgment. Appellant contends that the evidence was insufficient to support the judgment. The collision occurred on March 28, 1951, about 11:30 a. m., at the intersection of Pacific Coast Highway and Gardena Av...
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Action for damages for personal injuries allegedly resulting from an automobile collision. In *48a nonjury trial, judgment was for plaintiff for $1,500. Defendant appeals from the judgment. Appellant contends that the evidence was insufficient to support the judgment. Plaintiff was not present at the trial, but his case was presented by his deposition. Plaintiff, 18 years of age, testified that he...
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The appeal in this case presents the question whether a conviction of possession of a narcotic may stand where the accused put the package into his mouth, was choked and wrestled to the ground by the arresting officers until he gave up the package, which was used in evidence to prove the offense. We answer that, in our opinion, such a conviction should not be affirmed. Rudolph Martinez, the app...
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The defendants appeal from a judgment in favor of plaintiff for $440 and costs. Plaintiff sues as an assignee to bring action or suit. The assignment was duly executed and received in evidence. The appeal is before us on a settled statement of facts and includes the exhibits received in evidence at the trial. The settled statement shows these facts which tend to support the judgment. E. R. Walk...
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Plaintiff appeals from a judgment denying him a decree of specific performance of a written contract for the conveyance of real property. The trial court held that the contract, evidenced by escrow instructions, is too uncertain and indefinite to constitute an enforceable or binding agreement. The contract was entered into on June 16, 1952. Plaintiff was the purported buyer; defendant Call...
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On September 8,1949, Henry W. Halbert and his wife, Olive Brown Halbert, were riding in a Beech-craft Bonanza airplane when the plane crashed to the ground during an attempted landing at the Masterson Ranch in Tehama' County. The plane was owned by Berlinger Construction Company, a corporation, and was being piloted by Roy Berlinger who was the president of the company. Mrs.. Halbert and Mr. Be...
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This is an appeal from a judgment decreeing respondent, the surviving husband of Gertrude Geller, deceased, to be the owner of a one-half interest in real property which half interest stood in the name of said decedent. Cecelia Anolik as executrix of the will of said decedent appeals. Respondent and Gertrude were married April 30, 1946; both had been previously married to other spouses and had ...
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Appellant and two nonappealing co-defendants, namely one Aldo and one Guzmano, were charged by indictment with criminal conspiracy to commit grand theft. Appellant and Guzmano were charged with grand theft and by another count Guzmano and Aldo were also charged with grand theft. All three were convicted as charged. Appellant appeals from the judgment against him and from the trial court’s order d...
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This is a motion to dismiss an appeal from an order denying petition for writ of error coram nobis. Throughout this proceeding appellant has acted in propria persona. The following appears from the record. Appellant was charged in the Sacramento Municipal Court with peace disturbance and with resisting an officer. On arraignment he entered a plea of not guilty to each charge and demanded a trial b...
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From a determination by the trial court, sitting without a jury, that plaintiffs were entitled to a judgment against both defendants on their negligence claim, the defendant Antell Smith alone appeals. The accident out of which this controversy arose occurred on December 19, 1951, at the intersection of La Brea Avenue *40 and Venice Boulevard in the city of Los Angeles. At this site, La Brea ...
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In this action to recover for architectural services, with a cross-complaint raising issues of fraud, negligence and illegality of contract, defendant appeals from an adverse judgment. Plaintiffs, Dan Saxon Palmer and William Krisel, co-partners, brought this action to recover $2,190.01 as the balance claimed to be due for architectural services rendered to defendant. Count one of the comp...
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This is an appeal from a money judgment against appellant in the sum of $11,587. The judgment also denied relief sought by appellant by cross-complaint. The action arouse out of a construction contract entered into between appellant district, as owner, and respondent, as contractor. Respondent, Manual Smith, filed action, alleging that the district had breached its contract with him. The subjec...
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Defendants Ybarra and Cortez were convicted of having marijuana in their possession in violation of section 11500, Health and Safety Code. Cortez appeals from the judgment and the order denying his motion for a new trial. On the evening of August 2, 1953, appellant, Ybarra and Jacob Smith were arrested while the latter was driving his own sedan. Ybarra was in the front passenger seat and appell...
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On April 29, 1940, these parties entered into an agreement providing that the defendant should deliver to the plaintiff all peas grown on certain land during the crop season of 1940-1941; that the plaintiff should pack and market the peas; and that plaintiff’s “commission” with certain packing and shipping charges, and any advances made, should be chargeable to defendant. The agreement also pro...
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Plaintiffs sued for damages for alleged fraud of the defendants in the sale to them of a residential property. The court sustained a demurrer to plaintiffs’ third amended complaint without leave to amend on the ground that the action was barred by the statute of limitations. Judgment of dismissal was entered and plaintiffs appeal. The question is whether the plaintiffs who purchased and lived in a...
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Defendant was convicted, in a trial by jury, of assault with a deadly weapon. He appeals from the judgment, sentence, and order denying his motion for a new trial. Appellant contends that the court erred in instructing the jury, and in rulings as to admissibility of evidence. Defendant operated a motel in Los Angeles. On February 4, 1953, Mr. Moles rented a double unit of the motel for himsel...
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Appellant and one Leland Little were arraigned in the Municipal Court of the Long Beach Judicial District on a complaint filed December 17,1953, and in which complaint Counts I and II charged the crime of robbery. On the date of his arraignment appellant was represented by Deputy Public Defender Leslie Still, Jr., and entered a plea of guilty to both counts of the complaint and admitted that at t...
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In this action plaintiffs Commeford, Huisman, Matlock and Fortin recovered judgment against Harley H. Baker, Charlotte Baker, Aircraft Die Cutters and A.D.C. Plastics, Inc. (hereinafter referred to as defendants), in the sum of $8,823.33. They had sued for $45,359.54; defendants had filed a counterclaim for $80,934.09, upon which recovery was denied. The complaint contained two causes of action...
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This is an action for damages arising out of an automobile collision which occurred at 8 a. m. on Sunday, April 6, 1952, at the intersection of Kettner Boulevard and Cedar Street in San Diego. Kettner is a through street, protected by' stop signs at this intersection. The plaintiff Black, driving an automobile owned by the plaintiff Jacobs, was traveling south on Kettner in his proper lane and at ...
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On January 16, 1953, the plaintiff husband filed a complaint for annulment of marriage alleging that at the time of the marriage ceremony plaintiff was so intoxicated as to be incompetent to enter a contract of marriage. On February 6, 1953, an appearance and waiver executed by the defendant wife was filed. The cause came on for trial in the Burbank Branch of the Superior Court on March 20, 1953, ...
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Defendant, Jack Adams, was found guilty of two counts of grand theft, and of two prior felony convictions for which he served time in state prisons. He appeals from the judgment of imprisonment that followed his conviction. Defendant secured $600 from the complaining witness, to be used to buy an automobile at a probate sale in Riverside County. On his trial he testified that he gave the money to ...
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Among the items in this estate were an apartment house and parking lot in Pasadena, across the street from the Pasadena city hall. The property was appraised in the probate estate for $106,000. It had been appraised for $145,000 in the guardianship estate of decedent. The county of Los Angeles became interested in the parking *131lot. Later on the county decided to acquire both parcels. Neither th...
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By information, defendant was charged with the crime of burglary and four prior convictions of felony. Trial by jury was duly waived and defendant was adjudged guilty as charged. The court found the crime to be burglary of the second degree and the allegations of prior convictions to be true. From the judgment of conviction, defendant appeals. By stipulation, the testimony given at the prelim...
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Plaintiff Irvin filed two actions, one against Arthur James Padelford, and the other against the city of Pomona, to recover damages for injuries resulting from an automobile accident. The cases were consolidated for trial before a jury and resulted in a judgment in favor of plaintiff in the amount of $20,000 against both defendants. Each of the defendants appeals from the judgment. Facts: †...
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Defendant appeals from a judgment in favor of plaintiff in an action for damages for personal injuries arising out of an automobile accident. The case was tried by the court without a jury and it is the contention of appellant that the findings are not supported by the evidence; that they are in direct contradiction thereof; and that the conclusions of law are likewise unsupported. The accident oc...
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Appeal from an order of the superior court granting a preliminary injunction restraining defendant pendente lite from proceeding to hear certain accusations against plaintiffs. Question Presented Does the rule of exhaustion of administrative remedies apply? Record Accusations were filed with the California Insurance missioner charging United Insurance Company and its Califor...
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Plaintiffs, operators of a restaurant, brought this action to enjoin the defendants from operating a restaurant on certain adjoining properties, to recover damages allegedly caused by the defendants’ operation of such a business, and to obtain a declaration of their rights under the lease pursuant to which plaintiffs hold the premises upon which they operate their restaurant business. From a judg...
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The State Board of Equalization, after hearings before a hearing officer and the board, found that Jerome Cornell, the owner of an on-sale general liquor license and the operator of a restaurant-bar in San Francisco, had employed two girls to encourage customers to buy them drinks in violation of the law. Because of such violation, Cornell’s liquor license was ordered revoked. Cornell, under th...
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Plaintiffs appeal from a judgment in favor of defendant John A. Wood in an action for damages for personal injuries. The ease was tried before the court without a jury and the question involved is whether the evidence is sufficient to sustain the findings and judgment. On or about May 10, 1951, defendant John A. Wood, who owned certain residential real property near Adelanto in San Bernardino coun...
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This is an action for damages arising from a fall on an outdoor stairway. The complaint alleged that the buildings and premises involved were owned by the defendant city; that they were jointly controlled and maintained by said city and the defendant Pine Arts Society; that the defendants, and each of them, were remiss in their operation and maintenance of the premises in that it was well known, ...
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In a taxpayers’ suit for recovery of insurance premiums paid by the county of Santa Clara, plaintiffs appeal from a summary judgment in favor of defendants. Principal Questions Presented 1. Do insurance policies covering a county hospital’s liability for malpractice, mistake, error or negligence, cover liability under section 53051, Government Code? 2. Was a summary judgment prop...
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From an order decreeing that respondent, Robert E. Walker, is the person entitled to distribution of the estate of Herbert W. Ward, deceased, entered after hearing on appellant’s petition for a determination of heirship, appellant (hereinafter referred to as petitioner) appeals. Facts: Herbert W. Ward died intestate on May 14, 1949. His sole heir was his father, James R. Hickman. At the time ...
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This proceeding is a motion for a summary reversal of the order of the superior court denying defendants’ motion that plaintiff be required to furnish security pursuant to the provisions of sections 830 and 834 of the Corporations Code. Defendants’ motion was denied by the trial court by an order reading, in part, as follows: “That the defendant, Walt Disney Incorporated, a corporation, is not ...
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Max E. Manig, claiming to be the owner of certain improved real property in Oakland, brought this action to quiet his title to the property, naming several defendants as claimants of an adverse interest therein. The only defendant to answer was H. Glenn Lawler. The other defendants either were not served or their defaults were taken. Lawler denied that Max Manig had any lawful claim to the prop...
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Plaintiff, Murdis Warren, fractured a bone in his foot. He consulted the defendant, Dr. Alfred Boos, a chiropodist. Dr. Roos placed a flexible cast on the foot. The fractured bone did not heal, the broken parts *225 slipped, and surgery, by a different doctor, was required to rectify the condition. This action for malpractice was brought on the theory that the treatment prescribed by Dr. Boos w...
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Defendant Fong appeals from his conviction of one count of conspiracy to commit abortion and one count of abortion, and from the order denying a new trial. Questions Presented 1. Sufficiency of the evidence. 2. Refusal to set aside the indictment as to counts 2 and 3. 3. Alleged errors in the *233 admission of evidence. 4. Refusal to grant mistrial. 5. Instructions. 6. Alleged misconduct of...
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Defendant was charged with the unlawful possession of heroin, in violation of section 11500 of the Health and Safety Code, and with two prior convictions. He admitted the two priors, and pleaded not guilty to the main charge. He was represented at the time of his arraignment and trial by an assistant public defender of Alameda County. In propria persona he appeals from the judgment of conviction ...
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Plaintiff Allan R. Wood appeals from a judgment in his favor for the sum of $1,750, general damages, in a personal injury action.. The complaint included a statement of a cause of action by Ralph E. Wood, father and guardian of plaintiff, for medical expenses and loss of earnings of plaintiff Allan R. Wood, and the jury returned a verdict in his favor in the sum of $5,800. There is no appeal .f...
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This is a divorce action which was tried before C. A. Paulsen, judge assigned. The trial was concluded on'July 23, 1953. Findings were waived by stipulation of the parties and on July 27, 1953, a “Memorandum of Decision” was signed and filed as follows: “As heretofore indicated, a decree will be granted to plaintiff wife. “The personal property will be awarded to plaintiff. As to the ...
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Appellant filed objections to the probate of the will on the grounds that deceased, “was not of sound and disposing mind,” and that it was not executed, “In the manner or form required by law.” The appeal is, “from the judgment and order admitting to probate the will,” of deceased. It is contended on appeal that, “Point I—When the contestants have established a prima facie case of the decedent’s i...
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The appellant and one Wilson were jointly charged with burglary. Wilson was also charged with prior convictions for robbery, and the appellant with prior convictions for burglary. They pleaded not guilty, but admitted the prior convictions. A jury found each defendant guilty of burglary in the second degree, and Turney has appealed from the judgment. At 10:25 p. m. on the night of November 17, 195...
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From judgments in favor of defendants respectively, entered after motions for nonsuit were granted, plaintiff appeals on a settled statement. The question presented is the sufficiency of the evidence to show negligence upon the part of the respective defendants. General Facts The facts referring to the negligence of the particular defendant will be discussed later, and, as we are...
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Plaintiff appeals from a judgment on the pleadings entered in favor of respondent Paschote. The action arises out of a collision involving several automobiles *278 which is alleged to have occurred on January 7, 1951. The complaint was filed on March 12, 1951, and respondent was served as Doe One, a fictitious defendant, on April 7, 1951. Respondent filed an answer which consisted of denials an...
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Respondent, an employee of the appel lant railroad company for more than 20 years, had served as a member of a crew of workmen in appellant’s East Los Angeles yards for about two and one-half years prior to April 27,1950. On that date he was performing certain repair work oil a train popularly known as the ' ‘ City of Los Angeles. ’ ’ A leak of air pressure was discovered on a routine test...
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Plaintiff appeals from an order denying his motion to expunge the entry of the judgment in this action signed June 5, 1953, and purported to have been entered on June 5, 1953. In the afternoon of June 5, 1953, the judge of the Superior Court of the County of Los Angeles who tried the action signed the judgment and gave it to his courtroom clerk who stamped it and a carbon copy “Piled June 5, 19...
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Defendant was convicted of receiving stolen property. He appeals from the judgment and the order denying his motion for a new trial. He contends that the corpus delicti was not established; that the testimony of an alleged accomplice was not corroborated; and that the evidence is insufficient to support the judgment. Thirty-six aluminum wheels were stolen from J. T. Jenkins Company between Marc...
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This is a proceeding to determine to whom distribution of the estate of the deceased should be made. The two children of the deceased, by a prior marriage, filed a petition alleging that certain household furniture and a savings account for $1,167.29 were the community property of the decedent and his widow Corinne Kalben; that three *298 parcels of real property were the separate property of t...
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Defendants appeal from a judgment imposing a trust in favor of plaintiffs on an undivided one-half interest in certain real property in Contra Costa County. Plaintiffs are the devisees of Everett LeRoy McMillen, deceased, and his executor. Decedent and defendant, Grace E. McMillen, were married in 1940 and remained husband and wife until decedent’s death in 1951. In 1945 they acquired the prope...
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Plaintiff appeals from a judgment entered after the court sustained a demurrer to his second amended complaint (hereinafter called the complaint) without leave to amend. Appellant appears in propria persona and the complaint gives every evidence of being the pleading of one who is not skilled in the law. It attempts to allege an action for injunction and damages against five defendants who are de...
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Appellant Smith is a manufacturer’s agent who brought suit against the respondent manufacturer Harris in Los Angeles Superior Court on common counts alr leging commissions due from sales and services rendered in California. The appellant is a resident of Los Angeles, the respondent a resident of Houston, Harris County, Texas. Being unable to personally serve the respondent within the state...
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The city of Los Angeles appeals from three consolidated judgments against it entered on eight jury verdicts in favor of the several plaintiffs in actions for damages for personal injuries. Liability was imposed on the city under the Public Liability Act of 1923, now sections 53050 and 53051 of the Government Code, sometimes referred to as the “act.” A motion for a new trial was denied. On ...
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This is an action to recover for work, labor and services, in which the jury returned a verdict in favor of plaintiffs Kennard and Drake in the sum of $5,150 and in favor of plaintiff Wolfe in the sum of $1,200. Defendant appeals from the judgments entered on the verdicts and his principal contention is that the plaintiffs were required to be licensed by the provisions of division 3, chapter 11...
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This action for a mandatory injunction was brought by the Iacovittis against the Fardins to compel the latter to remove that portion of a building alleged to have been intentionally constructed by the Fardins so as to encroach on the Iacovittis’ property. The key question presented related to the location of the correct common boundary between the properties of the two litigants. The surveyors pro...
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This is an appeal by plaintiff from a judgment in favor of defendant in a suit brought to establish a mechanic’s lien for unpaid balance of $557.54, and in favor of defendants on their cross-complaint seeking a refund of $250 paid plaintiff on the contract here involved. Respondents, owners of a new house, made an agreement with plaintiff, a roofing contractor, to construct a tile roof on ...
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This is an appeal from a conviction of burglary committed by breaking into a locked automobile. Appellant and one Charles Watson were found guilty after jury trial of having broken into the locked parked Jaguar automobile of Mr. Sidney Friedland on July 8, 1953, in San Francisco. Some of the stolen goods were recovered later that day in the trunk of the car which appellant was driving when appr...
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From an order of the trial court granting a new trial on the issue of damages only, on the ground the evidence was insufficient to support the verdict, defendants appeal. Facts: After trial before a jury a verdict was returned in favor of the plaintiffs in the sum of $1,500. Thereafter plaintiffs made a motion for a new trial, stating in their motion: “Said motion will not be made upon affidavits,...
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From an order denying defendant’s motion for a change of venue, he appeals. Chronology 1. On March 26, 1952, plaintiff filed a complaint against defendant to recover for breach of contract for medical services rendered to defendant and defendant’s wife. 2. On October 15, 1953, defendant filed (a) notice of motion for change of venue on the ground that the convenience of witne...
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From a judgment of guilty of violating sec tion 11500 of the Health and Safety Code (unlawful possession of a narcotic) after trial before the court without a jury, defendant appeals. Facts; 1 Police Officer Northrup on February 17, 1954, at approximately 11 p. m., together with his partner, Officer Conrad, observed defendant accompanied by a woman on the west side of Gladys Street near...
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Plaintiffs recovered judgment against the defendants in the sum of $3,200 for the value of a certain automobile. Upon the judgment roll appeal of defendant Cyril Saunders, the judgment was reversed upon the ground that the record, including the complaint and the findings of fact, demonstrated that plaintiffs’ cause of action depended upon their success in a lottery, “which is a criminal of...
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This is an appeal by Mr. and Mrs. Griff and Mr. and Mrs. Efros, who are hereinafter designated as “appellants.” The complaint is divided into three causes of action. The above named appellants, and Marr and Long, *384 real estate brokers, and Bank of America, escrow holder, were defendants. The pertinent allegations of the first nine paragraphs of the first cause of action are: tha...
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All parties appeal from the judgment. Additionally, plaintiff moves to augment the record. Questions Presented 1. Whether the so-called Buck decree determined plaintiff’s ownership to be in fee rather than an easement. 2. The situation as to the fills supporting the right of way. 3. Is the Buck decree res judicata of the question of abandonment ? Record Plaintiff s...
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127 Cal. App. 2d 404 (1954) ANN J. KROFF, Respondent, v. FELIX V. KROFF, Appellant. Civ. No. 15809. California Court of Appeals. First Dist., Div. Two. Sept. 15, 1954. Ernest J. Hill and Walter E. Dorn for Appellant. Richard O. Graw, Dan C. Lange and Sidney Feinberg for Respondent. KAUFMAN, J. This is an appeal from an order granting a new trial. The motion was made on the grounds specifie...
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This is an appeal from a judgment of the Superior Court of San Mateo County on a cross-complaint for reformation of a deed. Plaintiffs Marion Vecki and Vera Vecki, his wife, brought an action for damages resulting from subsidence due to removal of lateral and subjacent support as a result of quarrying operations carried on by respondent, Peter Sorensen, and for injunctive relief. Respondent Sor...
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This is an appeal by defendants from an order granting a new trial after a verdict in their favor. The action is for damages for malpractice. Plaintiffs are Hazel Shipley, the patient, and her husband; as defendants there remain after certain changes pending suit the Permanente Hospital, a corporation; Permanente Health Plan, a nonprofit *419 trust and Dr. J. G. Hallett. It was the...
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This is an appeal by defendant and appellant from a judgment for damages in favor of plaintiff and respondent for breach of contract. The facts briefly are as follows: Respondent leased to Salvatore Trombatore and appellant Louis Taroli a certain hotel, restaurant and bar located in Redwood City, San Mateo County, for a term that commenced on July 1, 1948, and was to end on December 3, 1955. Re...
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This is an appeal from an order denying defendant’s motion for a new trial and from a judgment of conviction of defendant and appellant, Ivory Newman, of a violation of section 11500 of the Health & Saf. Code, pos *432 session of a narcotic, marijuana. Two prior convictions for violation of section 11500 were dismissed on the motion of the district attorney. Trial by jury was waive...
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While appellant was serving a sentence in the federal penitentiary at Alcatraz he was tried in the Alameda Superior Court on four counts of first degree robbery. He was found to have served two prior felony sentences. Following his conviction on all four counts, he was adjudged an habitual criminal on all four counts, sentenced to life imprisonment, and the trial court ordered that these sentence...
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Defendant was convicted of armed robbery. He appeals from the ensuing judgment. Defendant was discovered by Mr. Newman, the janitor, in the rear of the J. C. Penney Company store, located at 1516 East Florence Avenue in Los Angeles, shortly after 9 o’clock in the morning on January 4, 1954. He had entered the store through a vent in the roof about daylight but being unable to find any money he dec...
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This appeal involves the constitutionality of the provisions of a zoning ordinance which require that certain nonconforming existing uses shall be discontinued within five years after its passage, as they apply to defendants’ property. Plaintiff brought this suit for an injunction to command defendants to discontinue their use of certain property for the conduct of a plumbing business and ...
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This is a motion by plaintiff to dismiss defendants’ appeal from an order denying their demurrer and their motions for a change of venue and to dismiss. The record shows that following submission of the demurrer and motions, the trial court, by a minute order entered February 9, 1954, overruled said demurrer and denied said motions. Thereafter a formal order denying the motion for change of venue ...
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Plaintiff, the former wife of defendant Walter S. Johnson, in October, 1945, instituted this action, claiming a half interest in 62% shares of common stock of Friden Calculating Machine Company, Inc., the further stock derived therefrom, the dividends paid thereon, et cetera, which original shares her husband allegedly owned as community property on May 8, 1936, when a property settlement agree...
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Plaintiffs appeal from a judgment entered in favor of defendant City of San Mateo after the court sustained a demurrer of that defendant to their second amended complaint without leave to amend. The action is one for the alleged wrongful death of the husband and father of the respective plaintiffs who was struck and killed by a train at a railroad crossing. The charging portion of the complaint in...
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This is an action to recover liquidated damages for the breach of a contract designated by the parties a lease. Appellant, who was engaged in the business of furnishing janitorial services, purported to lease to respondent certain named clients of appellant, each party to the contract to receive a certain proportion of the consideration paid by said “clients” for the janitorial services rendered ...
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This is an action to recover damages for personal injuries resulting from a dog bite. Judgment was rendered against defendant DuNah, from which he appeals. In her amended complaint against The Elite Dry Cleaners, Dyers and Laundry, Inc., a corporation, hereinafter referred to as Elite, and Does 1 to 10, plaintiff alleged that: “On or about October 26, 1951, in the City of Pasadena, the defendan...
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Plaintiff Dalka Gill and George Gill (hereinafter referred to as Gill) were married in 1923 in Poland. There was one child the issue of this marriage, born January 15, 1924, and named Joseph. When the child was a few months old, Gill came to the United States. After remaining here about two and one-half years, he returned to Poland. In 1929 he brought his wife and child to New York and lived there...
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In these two consolidated wrongful death actions, plaintiffs (in the Russell case, the widow and five minor children; in the Stout case, the widow and two minor children) appeal from a judgment entered upon a jury verdict denying them recovery from defendant Southern Pacific Company and its motorman, defendant F. P. Kistler, for the deaths of James B. Russell and Fred Stout as the result of a c...
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Defendant has appealed from the judgment entered upon his conviction of first degree robbery, also from the order denying his motion for a new trial. The issues present questions as to (1) the timeliness of the appeal, (2) the sufficiency of the evidence, (3) asserted errors in the exclusion and admission of evidence, (4) asserted errors in instructions to the jury, and (5) the propriety of a r...
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Plaintiff recovered a money judgment for injuries received when an automobile driven by him was hit by an automobile driven by defendant at the intersection of San Carlos and Prevost Streets, San Jose. Defendant does not question the sufficiency of the evidence to support the verdict except that he claims that plaintiff was *514 guilty of contributory negligence as a matter of...
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A purported will executed July 23, 1952, by Woodard Whitfield Kerr, was admitted to probate. Woodard Whitfield Kerr, Jr., a son of the decedent, filed a contest upon two grounds, unsoundness of mind and undue influence. The trial court found that decedent was of sound mind and memory but that his signature to the instrument was obtained by the undue influence of the proponent, Ethel Elnora Kerr...
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Appellant appeals from a judgment quiet ing title against her. The court found as to the property involved that without any consideration passing from appellant she acquired by deed an interest in the property as a cotenant of the plaintiff and respondent; that respondent permitted this at appellant’s solicitation and as an accommodation to her and on her promise to convey her undivided interest ...
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Three men were drinking in a private dwelling house. One of the men put a knife to the back of one of the other men, went through his pockets, and took his money, his tie clasp, and his wrist watch. The third man endeavored to help the victim, without much success. The victim complained to the police. The other two men were arrested and charged with robbery. The man who took the victim’s personal ...
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Action by executor of the will of William Patrick Burke for partition and to quiet title. In a nonjury trial, judgment was that Aida Margaret Burke (widow of deceased, and referred to herein as defendant) was the sole owner of the real property involved, and that the other heirs of deceased had no interest therein. Plaintiff appeals from the judgment. *536Deceased and defendant were married on Jun...
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On May 2, 1951, an information was filed charging Angelo Michael Gennaitte with the crime of kidnaping for the purpose of robbery on or about January 17, 1946, and alleging that he had been absent from the State of California from October 18, 1946, to September 21, 1950, the date of the issuance of the complaint. The information also alleged that on or about November 10, 1946, defendant was convi...
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This is an appeal by the Attorney General of the United States, as successor to the Alien Property Custodian (Executive Order No. 9788, 11 Federal Regulations 11981) from a decree establishing interests in the decedent’s estate under section 259 of the Probate Code. Richard Leefers, a naturalized citizen and resident of the United States, died intestate in San Diego County, California, on Janua...
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This is an action for declaratory relief in which plaintiff seeks recovery from either or both defendants, Fireman’s Fund Insurance Company and John P. Dieterich, for loss of the yacht “Coronado,” which sank on the early morning of January 18, 1953, while en route from San Diego to Newport Beach, California. *563 Plaintiff alleged that on or about October 3, 1952, the defendant in...
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In an action for personal injuries brought pursuant to section 53051, Government Code, charging negligent maintenance and control of Laurel Creek causing it to overflow and deposit silt upon the sidewalk in front of plaintiffs’ premises, plaintiffs appeal from a judgment of nonsuit. The sole questions presented are whether there is any evidence, or any reasonable inference from the evidence, which...
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Defendant Sorenson alone appeals from a judgment in favor of plaintiffs. Questions Presented As nearly as we can determine from defendant’s briefs (he has completely disregarded Rules on Appeal 13 and 15(a)) defendant’s contentions are: (1) Insufficiency of the evidence. (2) The findings and judgment contradict themselves. (3) The judge was querulous and arrived at conclusions adverse to defendant...
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By her action plaintiff sought a declaration of rights together with recovery of a specific sum. Defendant interposed a demurrer and motion to dismiss upon the ground that the action was barred by a prior judgment. Thereafter said motion to dismiss was granted. Plaintiff now appeals from that order, and defendant has again moved to dismiss *583 the same. This court has chosen to deny the defend...
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This is an appeal from a judgment in favor of defendants and from an order denying plaintiffs’ motion for a new trial in an action instituted for injunctive relief and damages. The parties are adjoining landowners in Glenn County. Both had made changes in the topography of their respective parcels of land. Both also had constructed new and additional drainage facilities. Following the flooding ...
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This is an appeal by defendants from a judgment quieting title in plaintiff, and awarding damages for timber removed by defendants from the property. Both parties claim to deraign title through one Pillsbury. Plaintiff’s deed dated July 14, 1883, described the property as follows: “All that certain piece or parcel of land lying and being inside of W. V. Clarks enclosure, and located North of ...
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Appeal from a judgment for $2,500 based upon defendant’s agreement to pay “$4,500 to broker named herein, or one-half of buyer’s deposit, if buyer shall be in default, but not to exceed the full amount of his commission.” The purchasers (Mr. and Mrs. Gelber) had signed the agreement on September 21, 1951, and presented a check for $5,000 to respondent “to apply on purchase price of $100,000 for...
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This is an action for damages for malpractice growing out of defendant’s attendance upon plaintiff’s birth on December 1, 1931. Plaintiff filed his complaint on June 23, 1953. Defendant’s demurrer was sustained without leave to amend. Plaintiff appeals from the ensuing judgment of dismissal. This case turns upon thé interpretation and application of section 29 of the Civil Code. * ...
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Appeal from order quashing writ of execution. The interlocutory decree of divorce was awarded appellant December 7, 1943, providing for weekly payments of $42.50 for the support of appellant and their two infants, Ronald, age 2 years, and Michael, age 9 months. In the summer of 1945, appellant informed respondent, then residing in San Jose, that she wished a large sum of money and proposed *60...
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Appeal from a judgment of dismissal entered 27 days after entry of the order sustaining demurrer to plaintiff’s fourth amended complaint. The order granted plaintiff 20 days within which to amend. The brief filed by appellant, is not a fair compliance with rule 15 of the Rules on Appeal in that each point in the brief does not appear separately under an appropriate heading. However, such defect...
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127 Cal. App. 2d 614 (1954) THE PEOPLE, Respondent, v. JACK ROBERT WAID, Appellant. Crim. No. 5087. California Court of Appeals. Second Dist., Div. Two. Sept. 29, 1954. Richard E. Erwin, under appointment by District Court of Appeal, for Appellant. Edmund G. Brown, Attorney General, and Victor A. Gables, Deputy Attorney General, for Respondent. *616 MOORE, P. J. After having been convicted...
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Appellants and one Enriquez were convicted of having feloniously given and administered heroin to one Geraldine, a minor seventeen years of age, in violation of the Health and Safety Code. Rios and Hayes now demand a reversal of the judgment on the grounds of insufficiency of the evidence and error in admitting certain testimony. It is not disputed that Geraldine was born October 7, 1935. The h...
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Eugene F. Evarts and wife purchased from 0. J. Jones under contract Lot 20, Block 8, Tract 12854, in the city of Long Beach. On August 30, 1948, they brought an action, No. LBC-15081, for specific performance of the contract. Demurrer having been sustained to their amended and supplemental complaint, they failed to amend within the time granted and their action was dismissed. They appealed and th...
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This is an appeal by defendant from a money judgment in favor of plaintiffs in an action to recover the principal, plus interest, due, owing and unpaid on a conditional sales contract. On October 1, 1945, respondents and appellant entered into a conditional sales agreement by which appellant agreed to buy and respondents agreed to sell a going floral business, together with the good will, ...
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In these actions, which were consolidated for trial, plaintiffs seek to establish a constructive trust and to quiet title to real property in San Diego County. Judgment was rendered that plaintiffs recover nothing against the defendant Frederick Henry Heeker and quieting title in him to the real property involved. Both plaintiffs appeal from the judgment. On June 14, 1923, Elizabeth Metcal...
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Defendant and appellant Martin Emill Tokich was convicted by the court, sitting without a jury, of - the crime of feloniously possessing four grains of heroin on September 4th, 1953, in violation of section 11500 of the Health and Safety Code. There was a prior felony conviction under section 503 of the Vehicle Code admitted, for which he served a term in state’s prison. Defendant’s motion for a n...
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This ease is before this court for the fifth time —in this instance by virtue of plaintiff’s appeal from a judgment in favor of defendant awarding him certain amounts representing the sums due him for the period he was dispossessed by plaintiff of the ranch involved in the litigation. Originally plaintiff by an action for declaratory relief sought to determine whether defendant as lessee had ef...
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This is an appeal from the judgment in an action to recover damages for breach of an implied warranty that a bull purchased by respondent from appellant was fit for the particular purpose for which it was purchased, that is, for service as a herd sire. The record is clear that respondent purchased the 21 months’ old bull for this purpose and that appellant, through his managing agent, was so info...
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This is a motion to dismiss the appeal. Plaintiffs and appellants brought an action to recover damages for the death of a minor child alleged to have resulted from the negligence of defendants. Trial to a jury resulted in a verdict in favor, of defendants and judgment thereon was entered March 30, 1954. Appellants made a motion for a new trial, which motion was denied by an order entered on May 1...
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Appeal from the judgment of con viction of the crime of embezzlement and from the order denying a new trial. Appellant was charged by information with the crime of embezzlement committed on or about the 8th day of May, 1953, in that the appellant fraudulently disposed of a 1953 Mercury automobile, which was then and there in the possession of said Alfred H. Swenson, alias Howard Swensen, appell...
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In February of 1951 Noel S. Alton brought this action against R. A. Rogers, an attorney at law, and William P. Devon. On motion of plaintiff, Devon was dismissed from the action at the conclusion of the trial. * The complaint stated two causes of action based on the same transactions, the first, an equitable action for breach of trust and an accounting, and the second, a legal action...
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From the order quashing service of summons on the ground that defendant was a nonresident temporarily in California as a party litigant and as a witness to testify in judicial proceedings, plaintiff appeals. Appellant contends that under the circumstances, the rule of immunity against service of process cannot be fairly invoked by respondent. This claim necessitates a review of the background o...
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This action for an injunction and damages was before the Supreme Court on a former appeal by defendant Cameron. The judgment was affirmed in part and reversed in part with instructions (38 Cal.2d 265 [239 P.2d 625]). The cause was remanded for further proceedings (p. 270). Such proceedings were had pursuant to the directions of the Supreme Court, and following a judgment against defendant for d...
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Plaintiff appeals from a judgment in favor of defendants. The action was one to recover a balance due upon a contract in writing, whereby plaintiff agreed to construct for defendants a residence building, and to impose a mechanic’s lien on the property so improved. The illegality of the contract was not pleaded as a defense by the defendants. Nevertheless from evidence developed in the trial of...
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From an order denying defendant’s motion for a new trial after being found guilty of one count of grand theft and two counts of forgery, defendant appeals. Defendant urges that there was not substantial evidence to sustain the judgments of guilty on any count. This contention is untenable, as will appear from the evidence hereinafter set forth in support of each count of which d...
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This is an appeal from a judgment for damages entered in favor of plaintiff-respondent upon a jury’s verdict. Respondent was injured when he fell from the edge of a sidewalk into and upon appellant Oeste’s property. This property, at the time of the accident, was a vacant city lot, the surface of which lay some 8 feet below the edge of the sidewalk from which respondent fell. There was no guard...
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In an action for damages, the jury returned a $20,000 verdict in favor of plaintiff. A motion by defendant for a judgment notwithstanding the verdict was granted. This is an appeal from the judgment. The controversy relates to two checks issued by appellant and which were returned to the payee because of insufficient funds. The only issue involved is “Whether the trial court was correct in conclud...
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In 1947 Dr. Duane L. Nelson and his then wife Zenith Nelson entered into a property settlement. They agreed that the husband would pay $200 a month for the support of two minor children of the marriage. In the same year the wife was granted an interlocutory decree of divorce. The decree incorporated the provision for the support of the children. In 1948 the superior court modified the decree, fixi...
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This action comes up on appeal by George M. Challman, Jr., the adopted son and beneficiary under the will of George M. Challman, Sr., who died March 20, 1951, from the “Decree Determining Interest in Estate,” dated and filed May 11, 1953, and entered May 25, 1953, as follows: “That Helen M. Challman, as surviving spouse, was not provided for in the last will of George M. Challman, Sr., Deceased...
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In an information filed by the District Attorney of Los Angeles County defendant was charged in Count I with the offense of forgery (Pen. Code, § 470), and in Count II with the crime of grand theft (Pen. Code, § 487, subd. I). Count I alleged that the defendant forged a certain check in the amount of $760, and that he passed the same knowing that said check was forged, and with the intent to defr...
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This is an appeal from the judgment following a verdict of guilty by the jury. The record reveals that the officers entered appellant’s home and found narcotics on the person of appellant. It is contended on appeal that, “The verdict is contrary to law” and, that the “trial court committed error by advising the jury that the district attorney and counsel for appellant could stipulate to the a...
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127 Cal. App. 2d 754 (1954) G. H. LATHROP, Respondent, v. MRS. EBEN GAUGER, Appellant. Civ. No. 20242. California Court of Appeals. Second Dist., Div. Two. Oct. 5, 1954. E. O. Leake and J. J. Leake for Appellant. LeSage & Bowman for Respondent. FOX, J. In this action for recovery of a real estate broker's commission, with a cross-complaint raising issues of fraud and misrepresentation ...
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Defendant was charged in three counts with violation of section 11170.5 of the Health and Safety Code, in that he did unlawfully give a false name and false address in connection with the prescribing or furnishing of a narcotic. It was also alleged in the information that on October 5, 1928, he had been convicted of violation of the State Poison Act; and that on March 14, 1932, he had been convict...
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In an action for divorce commenced by plaintiff Mary June Williams against her defendant and cross-complainant husband, Francis Lacelle Williams, an ex parte order to show cause was obtained by plaintiff against defendant requiring him to show cause why plaintiff should not be awarded the sole custody of the minor children of the parties during the pendency of the action, why he should not pay $17...
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Defendant was charged with and convicted by a jury of the crime of forgery of a fictitious name. The jury also found that defendant had suffered five prior felony convictions and served time therefor in prison. At the trial defendant refused the services of his counsel and proceeded with his counsel acting only in an advisory capacity. On appeal the same counsel was appointed by this court to rep...
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The state brought this proceeding in eminent domain to acquire for freeway purposes the fee title to a triangular parcel of realty, referred to in the record as “parcel 5 (Amended),” owned by defendants Philip L. and Maud N. Wilson. We shall refer to the property sought to be condemned as “parcel 5.” Defendants are the owners of a rectangular, inside, unimproved parcel of realty near downt...
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Plaintiff instituted this action to recover the sum of $2,000 for what his complaint denominates as “accounting services” rendered to the defendants, and from a resulting judgment in favor of the plaintiff for the amount sued for, defendants appeal. *Supp. 809Plaintiff is a certified public accountant practicing his profession in the city of Los Angeles, and admitted to practice as an agent before...
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We have before us the question of the propriety of a judgment founded on an order sustaining a demurrer without leave to amend, the demurrer being based on the statute of limitations and on failure to state a cause of action. Plaintiff was the purchaser of a crane which was engaged in the entirely laudable work of raising steel for the building of Hastings College of Law. The crane proved unequ...
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In this action the plaintiffs allege, by the first cause of action in their complaint, the purchase of a used 1950 Morris Minor automobile from defendant at a sales price in excess of the ceiling price fixed by the Office of Price Stabilization, and seek to recover treble the amount of alleged overpayment. In the second cause of action' in their complaint the plaintiffs allege that the purchase wa...
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This is an action for wages. The record in this ease establishes that on July 20, 1952 the appellants filed a request with the trial court that findings be prepared on all of the issues presented for decision. On July 22, 1953 judgment was filed and entered without the making and filing of any findings. This was error (Hardy v. Foster, 125 Cal.App.2d Supp. 890 [270 P.2d 130]). The judgment entered...
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Appellant was convicted of the offense of failure to provide for his minor child. From this judgment he appeals. According to the statement on appeal the People introduced testimony which established the fact that appellant had failed to support his minor son. Hence a prima facie case was made. Appellant suggests that because of the “presumption of innocence” there was a burden upon the respondent...
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This controversy involves the title to a 1949 Oldsmobile. Car Leasing of America, Inc. (hereafter referred to as “CLA” or “trustee”), a used car dealer, with whose nefarious machinations this court has had occasion to become quite familiar, being desirous of acquiring the car in question from its then owner, secured the necessary financing from the defendant for the purchase thereof. This took ...
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Defendant was convicted of violating section 28.06 of the Los Angeles Municipal Code, execution of sentence was suspended and he was placed on six months’ summary probation on the condition not to engage in similar practice. Defendant’s sole contention on appeal is that the ordinance under which he was convicted is unconstitutional because violative of the constitutional guarantee of the freedo...
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This is an appeal from a judgment of dismissal after an order sustaining a demurrer to appellant’s first amended complaint without leave to amend. The demurrer to the amended complaint was properly sustained and no reason appears why the order of the trial court refusing permission to amend was not made in the legal exercise of its discretion. Appellant did not make any appearance at the time this...
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Prom a judgment of guilty of robbery in the first degree, after trial before a jury, defendants appeal. There are also appeals from the orders denying their motions for new trials. Facts-. 1 On August 21, 1952, at about 8:30 a. m., Mr. Cano, a truck driver for the Cudahy Packing Company, was seated on a box outside the back door of the Beach Grocery Company, located at 3104 Glendale Bou...
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Appellants petitioned the board of directors of the Madera Irrigation District to have their lands excluded from the district on the ground that they received no substantial benefit from the operations of the district and that it would be to the best interests of the district if they were excluded. Following a hearing the board found that the land of petitioners would be benefited by the operat...
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Plaintiff and respondent brought this action for damages for personal injuries and property damage claimed to have been sustained by him arising out of an automobile collision with defendants’ and appellants’ automobile, *20about noon on January 24, 1952, on Highway 101, about 2 miles south of Carlsbad. Negligence of defendants was denied and contributory negligence of plaintiff was alleged. A jur...
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Defendant’s appeal from a judgment entered on a jury verdict in favor of plaintiff presents only one question: in view of the allegations of the original and first amended complaints, alleging guest status of plaintiff in defendant’s automobile and wilful misconduct of defendant, did the first count in the second amended complaint alleging involuntary passenger status of plaintiff and negligenc...
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128 Cal. App. 2d 35 (1954) JACK NEWMARK et al., Respondents, v. H AND H PRODUCTS MANUFACTURING COMPANY et al., Appellants. Civ. No. 20246. California Court of Appeals. Second Dist., Div. Two. Oct. 8, 1954. Bridges & Peters for Appellants. Goodman & Cogen and Benjamin & Kronick for Respondents. *36 McCOMB, J. From a judgment in favor of plaintiffs, on defendants' cross-complaint...
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This is an appeal from judgments entered in favor of defendants. Plaintiff and appellant, hereinafter called “Castro,” is a paving contractor and contracted with defendant B. Goold & Son, Inc., one of the two respondents, hereinafter called “Goold,” to perform certain paving work required to be done under a prime contract between Goold and Solano County Sanitation District No. 1. This prime contra...
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Plaintiff appeals from an order dissolving a temporary restraining order. Sole Question Presented : Whether the trial court abused its discretion in refusing to enjoin pendente lite defendants from erecting gates across plaintiff’s right of way for road purposes. Record The complaint alleges that plaintiff and defendant * own adjoining property, that plaintiff own...
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This is an appeal from a judgment entered in favor of the defendant in an action instituted to contest his right to the office of sheriff of Los Angeles County to which he had been declared elected in the primary election held on June 8, 1954. The appellant and the respondent were candidates for the office of sheriff and their names appeared on the ballot in the primary election. After responde...
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Petitioner secured an interlocutory decree of divorce on the grounds of ernelty in June, 1949. The wife was awarded custody of their minor son who, was then 19 years old. The decree provided that the plaintiff-husband pay the wife $200 a month for her “support, care and maintenance” and that of the minor child until the further order of the court.' A final decree was entered in June, 1950. The mi...
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In a malpractice action plaintiff appeals from a judgment against him on the special defense of the statute of limitations. Questions Presented 1. Sufficiency of the evidence. 2. Do rulings on demurrer as to the statute of limitations bar the right to a trial concerning that issue ? 1. Sufficiency of the Evidence. December 31, 1950, plaintiff, a truck driver, sustained a broken leg in a...
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Plaintiffs sought to quiet title to certain prop- erty in the town of Allegheny, Sierra County, alleging ownership, possession for more than 20 years and payment of taxes for 10 years. (Code Civ. Proc., §§ 738, 749, 749.1.) Defendants denied generally the allegations of the complaint, and by way of cross-complaint sought to quiet their title to the property under the provisions of said code sec...
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This proceeding in quo warranto was brought to test the validity of the incorporation of the city of Carlsbad. The complaint, filed on July 21, 1953, alleged *79 that the incorporation proceedings were void and ineffective because the notice of the election, as published, was fatally defective in that it did not contain the date of the election nor state the number of inhabitants of the propose...
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Plaintiff appeals from a judgment denying Mm relief on Ms complaint and in favor of defendants upon their cross-complaint adjudging them to be the owner of a certain sum of money. Question Peesented The interpretation of the customary title company “Agent’s Deposit Receipt,” as to whether it requires approval by joint owners of the property to be sold where it is signed by ...
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Bertha Rado Raphael, widow and sole distributee, appeals from the ‘ ‘ Order Settling, Allowing and Approving Administrator’s Pinal Account and Order Allowing Compensation- for Extra-ordinary Services to Attorneys for Administrator and Order Denying Motion that Costs on Appeal be Paid from Assets of the Estate.” Question Presented While the appeal is from the entire order entitled as a...
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Appellant appeals from the judgment. The action was for the balance due on an open book account. Prior to the date of trial, the action was dismissed as to appellant’s codefendant, Bert Cann, due to his death, and a judgment from which this appeal is taken was rendered against the appellant, Stanley Hiller, individually. Appellant and Bert Cann formed a partnership to take over and operate...
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Plaintiffs, entitling their complaint one for “specific performance,” brought an action to compel performance by defendants of their written agreement to pay the purchase price of certain real and personal property. The prayer of the complaint is that defendants be compelled to specifically perform in accordance with their written agreement, which is set forth as an exhibit to the complaint, th...
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This is an action for declaratory and equitable relief and to quiet title to a liquor license instituted by Holt, a creditor of the original licensee, Elizabeth Clark Souza and her husband, Louis Souza, against F. E. Morgan and Wayne Morgan, father and son, who had the Clark license transferred to the latter, allegedly with knowledge of a prior contractual arrangement constituting said license ...
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Defendant Robert Rascón was charged with the crime of burglary and with a prior felony conviction, which he admitted. He was tried before a jury and convicted of burglary in the first degree. He appeals from the judgment and from the order denying his motion for a new trial. (The notice of appeal states an appeal from the order denying his motion for a new trial, as well as from the judgment, but...
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The defendant was convicted on a charge of possession of narcotics. He appeals urging particularly three grounds which require consideration. These are: (1) The insufficiency of the evidence to show possession. (2) Errors in instructions to the jury. (3) Misconduct and prejudice of the trial judge. The facts are that the defendant was the renter and occupant of an apartment on lower Turk ...
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Although prevailing in the divorce proceeding, appellant-plaintiff-wife has expressed dissatisfaction with the ascertainment of separate and community property, and has appealed. This ease is not new to the District Court of Appeal, a previous appeal having been determined in 1950 (Kenney v. Kenney, 97 Cal.App.2d 60 [217 P.2d 151]). The Kenneys were married on June 4, 1923, and separated Fe...
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By his holographic will which was duly admitted to probate, testator left “all my holdings personal and real, to my wife Charlotte L. Sullivan. Except I want to will or give to each of my douthers (sic) Harriett, & Clarabelle & Thula, $2,000.00 each. The money to be raised by sale of the SE % of Sec. 26, Twp. 7 N Rg. 10 W or they may have the deed to settle same. My wife Charlotte is...
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Defendant, Carl L. Willey, was convicted of violating section 288 of the Penal Code. He attempted to have sexual relations with his 10-year-old stepdaughter. The offense was committed in the home of defendant and his wife, while the wife was in the hospital. The personal background of the man is distressing. He was in the Army during the Second World War, and was held for 41 months in a Ja...
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Defendants appeal from a decree of specific performance. Defendants, husband and wife, own as joint tenants, certain real property in the city of Pomona. On February 1, 1950, plaintiffs leased this property for a two-year period at a rental of $90 per month. Defendant husband signed the lease but his wife neither signed the document nor did she give him written authority to sign for her. T...
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Appeal by defendants from a judgment which decrees that plaintiff convey to defendants a parcel of realty; and that plaintiff have judgment against defendants for $7,086.34, secured by a lien on the property conveyed. Plaintiff is an educated Korean but does not speak the English language fluently. Defendants are husband and wife; the husband, when he acted alone, will be referred to as de...
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This is an appeal from a judgment for damages in the sum of $1,000 in favor of respondents Booker W. Totty and Audrey Y. Totty and against appellants Joseph and Mary Azevedo, for a breach in bad faith by said appellants of a contract in writing for the sale of realty. The *168court found the damages to be the sum of $1,000, the amount by which the actual value of the property exceeded the contract...
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This is an appeal from the judgment in an action for declaratory relief. The action herein results from a controversy as to the rights of the parties according to the terms of an agreement between appellant and respondent. As recited in respondent’s brief, “In 1951 respondent entered into a written contract with defendant-appellant (hereinafter referred to as appellant), Paul Jarrico, a motion ...
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Failing to prevail on any one of his three causes of action in the trial court, plaintiff-appellant has appealed, alleging insufficiency of the evidence to support the judgment and errors in rulings on admissibility of certain offered evidence. The first cause of action was based on fraud; the second on breach of express warranty; the third on violation of a price ceiling established pursu...
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Plaintiff appeals from portions of an interlocutory decree of divorce granted to her upon the grounds of (1) extreme cruelty and (2) habitual intemperance. Questions: First: Was there substantial evidence to sustain the findings of the trial court reading as follows: “7. That it is true that plaintiff owns and possesses as her separate property jewelry consisting of dia...
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Defendant appeals from certain portions of an interlocutory decree of divorce granted to plaintiff. Questions: First: Did the trial court err in finding that property known as 1134 San Ysidro Drive, Beverly Hills, California, was purchased by plaintiff with $45,000 which was a gift from defendant to her? No. The trial court found as follows: “That the following assets are the sole and s...
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This is an appeal from an order granting a preliminary injunction, and enjoining appellant from soliciting the trade of those of its former customers whose accounts had been transferred to respondent pursuant to a written agreement between the parties. Prior to November 13, 1950, appellant had an established business which consisted of selling various drugs, sundries, *193 and...
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Appellant was convicted of a violation of section 606 of the Penal Code, a felony, to wit, in that she did wilfully and intentionally injure a public jail or place of confinement. She appeals from the judgment and from the order denying a new trial. By an information, appellant was charged in Count I with the crime of arson, as set forth in section 448a of the Penal Code, and in Count II with a...
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This is an appeal by plaintiff from a judgment in favor of defendants in an action in which plaintiff sought damages for breach of a lease of certain premises owned by defendants and which plaintiff desired for the operation of a bakery business. The complaint alleged failure of respondents to place appellant in possession of property pursuant to a lease, and the answer denied that the lease ever...
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This is an action to quiet the title of the estate of Mary Laura Coffey, deceased, to certain real and personal property, instituted by the Bank of America as administrator with the will annexed of said estate against Mae O’Shields, a half-sister of deceased, who took possession of said property at decedent’s death. Defendant by answer claimed title in herself stating seven separate defenses and ...
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This is an appeal from a judgment of the Superior Court of the City and County of San Francisco denying appellant’s petition for a writ of mandamus which sought relief from an order issued by respondent Bureau of Private Investigators and Adjusters of the State of California suspending appellant’s license as a Class A Investigator for a period of 60 days. An accusation in two counts was fi...
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A stipulation of facts was filed herein which discloses, among other things, that defendant’s business was operated in two separate divisions: automotive and radio. Both television and radio activities were conducted by the latter. In 1944, defendant, as owner of radio station KECA, made verbal agreements with key employees of both divisions: that they would receive specified percentages of the...
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This is an appeal from a judgment decreeing that certain real property owned by defendants and appellants has been dedicated to public use for beach and athletic field purposes, and is also subject to easements for similar use in favor of plaintiff and respondent and other property owners on whose behalf he sued. Said judgment also perpetually enjoined defendants from interfering with either th...
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Plaintiff, D. Fieri, hired the defendant, Guy L. Rosebrook, a licensed architect, to design a home, to supervise its construction, and to segregate the subcontracts of *252 the subcontractors. Plaintiff was dissatisfied with the cost of the completed house, and dissatisfied with the supervision of its construction by defendant. He brought this action against defendant for negligence in building...
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Defendant appeals from (1) an order amending a judgment■ nunc pro tunc-, (2) from the judgment as so amended; (3) from any purported amended judgment entered by the clerk pursuant to said amended nunc pro tunc order; and (4) from an order denying defendant’s motion to vacate the order amending the judgment. Henry P. Leavitt died May 25, 1948, and John M. Chamberlain was appointed administra...
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Appeal by plaintiff from an order granting a motion to vacate a default and a default judgment. The complaint for damages for an alleged assault and battery was filed and summons issued on February 5, 1953. The complaint was not verified. The complaint, summons, and a notice to take defendant’s deposition were served on defendant on April 5, 1953. The notice set April 15, 1953, as the date for ...
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This is an appeal by the city and county of San Francisco from a judgment in the sum of $5,000 in favor of respondent Stephen Bertone. There is also an appeal by Bertone from the portion of the judgment disallowing interest. *278The complaint, filed March 28, 1949, alleged that Bertone was owner of three apartment buildings in the city and county of San Francisco, and that shortly before March 5,...
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Appellant, United States of America, has tax claims against the decedent aggregating $2,616.24. The estate is insolvent. Over appellant’s objection to the execu*285tor’s account the probate judge gave the executor credit for $667.33 for expenses of decedent’s last illness paid by him. This left a balance of only $2,084.89 available for the payment of appellant’s claims. Section 191, title 31, Unit...
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Appellant corporation appeals from an adverse judgment, after trial by jury in the court below, and maintains it should have prevailed as a matter of law under the attendant circumstances. Respondent corporation, which we shall call Square Deal, operated a machine shop in South Gate, county of Los Angeles, for precision lathe and milling machine production. Appellant corporation, hereinaft...
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Plaintiff appeals from an adverse judgment in an action brought to recover $12,125 for services rendered by him to defendant’s testator, Harvey Priester, including the reasonable value of the use of plaintiff’s furniture. The complaint consisted of six counts. One count was based on an oral contract under which plaintiff claimed Priester agreed to pay him the reasonable value of services p...
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Plaintiff Margraf sued to quiet title to a parcel of realty. Defendants Jean Grimes and Gloria Haran cross-complained asserting title as assignees from C. B. Carpenter, Jr., of a certificate of sale of the property issued December 23, 1946, by the treasurer of Beverly Hills on foreclosure of street improvement bond number 16, series 34, under the Improvement Act of 1911 (now Sts. & Hy. Code, §§ 50...
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Plaintiff brought this action against defendants Gertrude Feldman and Sam Feldman for damages for alleged wrongful attachments levied in an action on a *321 promissory note and against Fidelity and Deposit Company of Maryland, the company which issued the undertakings on the attachments. Three prior actions are involved. First: An action, numbered 572587, brought by defendant ...
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Appellant brought this proceeding against Workman Service Company, Office Workers (Agency) of California, doing business as Office Workers Agency, Division of Labor Law Enforcement, Department of Industrial Relations, State of California, and certain of its officers and employees, naming also numerous individuals as respondents. She petitioned for a writ of mandate; her application for an alterna...
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Convicted of violating section 11500 of the Health and Safety Code, possession of marijuana, defendant has appealed from the judgment and from an order denying a new trial. He does not claim that the evidence was insufficient to support the verdict. He does claim prejudicial error in the asserted failure of the trial court to instruct the jury adequately on certain questions and prejudicial err...
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In support of his appeal from a judgment entered upon conviction of second degree burglary, with three priors, defendant Jack Martin urges a number of points. He says there was no sworn complaint and no preliminary hearing. Counsel for the state says there were. The record is silent. In such a case there is a presumption that the information was regularly issued, hence was preceded by a sworn c...
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On July 2,1953, plaintiff filed an action for divorce in the Superior Court of Los Angeles County. Defendant was served with summons and complaint in the county of Riverside on or about August 7, 1953. Subsequently, defendant made a motion to change the place of trial to Riverside County. No counter affidavits or other documents were filed by plaintiff in opposition thereto. At the hearing on def...
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Defendant Bank of America is the owner of the legal title of a 1952 Dodge pick-up truck. The truck was forfeited to the state because the owner in possession transported narcotics in it. The bank appeals from the judgment. The truck was sold by Gledhill Incorporated to E. L. Norman, Jr., under a conditional sales contract. Gledhill made the investigation of Norman required by section 11620, Health...
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This is an appeal by plaintiffs from a judgment entered pursuant to a verdict of the jury in an action of ejectment. By a lease in writing dated October 15, 1948, but actually signed in January, 1949, defendants Albert J. Rupley, Jr., Harvey E. West, and Leila West demised their interest in certain mining property to plaintiffs Chalmers, Brayton, and to defendant Ebbert for a period of 10 years fo...
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Plaintiff commenced this action against the administrator of the estate of William Baymond Hathaway, deceased, for a determination that she is the owner of an undivided one-half of his entire estate. Her fourth amended complaint, upon which the action went to trial, alleged an oral agreement between decedent and plaintiff that they “should pool their earnings and share equally in their joint ac...
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This is an appeal from a judgment of conviction upon an information charging appellant with selling “flowering tops and leaves of Indian Hemp (cannabis sativa),” otherwise known as marijuana, in violation of section 11500 of the Health and Safety Code. The record shows that on the evening of March 9, 1954, about 8:30 p.m., Jerome Murphy, a state narcotic inspector, was parked in a state car on ...
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In this action for money allegedly due 'plaintiff for services rendered the county of Solano pursuant to a contract in writing between the parties, plaintiff has appealed from an order transferring the cause from the city and county of San Francisco to the county of Solano, based upon a finding that the Superior Court in and for the County of Solano is the “proper court for the trial” of the ac...
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This is an appeal by defendant from a judgment in favor of plaintiff quieting his title to certain real property and from the order denying its motion for a new trial. On February 6, 1950, plaintiff Kejr, a resident of Colorado, entered into an agreement in writing with the defendant, a California corporation, whereby plaintiff agreed to sell and defendant agreed to buy certain timber. The exec...
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This is a damage action arising from a collision between a locomotive and a truck. The accident occurred at about 11:30 a. m. on June 6, 1952, at a point a mile or two north of Oceanside, where a blaclc-top road leading easterly from Highway 101 crossed the railroad tracks. This road was formerly the main access from the highway to Rancho Santa Marguerita, now Camp Pendleton. About 1943, the Marin...
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The defendant was charged, in separate counts, with three violations of section 288 of the Penal Code, the victims being a boy 9 years old, a boy 7 years old, and a girl 6 years old. He was also charged with a prior conviction. He admitted the prior conviction and pleaded not guilty to each count of the information. A jury found him guilty on each count and his motion for a new trial was denied, ...
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This is a procedure to forfeit the defendant vehicle under section 11610, Health and Safety Code, because of its use in unlawfully keeping, depositing and concealing narcotics. John R. Skinner, the sole owner of the defendant vehicle, answered and appeals from the judgment of forfeiture pronounced on that basis. On October 11, 1952, at about 1:55 a. m., the occupants of the defendant car got in...
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This is an appeal from a judgment of conviction for violation of section 11714 of the Health and Safety Code (furnishing narcotics to a minor) and from a denial of a motion for new trial. Miss Strange, who was born on April 24, 1935, testified that she met the appellant James Hines in the early part of 1952. The meeting took place at the President Hotel and she was introduced to him by Jam...
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Appellant-plaintiff seeks reversal of an adverse judgment in an action brought in state court pursuant to provisions of the Jones Act (46 U.S.C.A. § 688). The appellant’s first cause of action alleged that respondent employers failed to exercise ordinary care to provide him with a reasonably safe place to work in that they negligently caused and allowed an accumulation of a slick and oily foreign ...
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Plaintiff appeals from an order granting defendant’s motion to vacate a final judgment of divorce. Plaintiff and defendant were married on April 24, 1920. On January 14, 1949, plaintiff filed a complaint for divorce alleging extreme cruelty. On February 24, 1949, plaintiff obtained an interlocutory decree of divorce by default; and a property settlement agreement was approved by the court, and def...
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Action for damages for breach of contract. In a nonjury trial, judgment was for plaintiff. Defendants appeal from the judgment. • Appellants contend that plaintiff cannot recover damages because plaintiff breached the contract first; and that the court erred in finding the plaintiff did not breach the contract. Plaintiff made a contract with the City of Los Angeles, Department of Water and Power, ...
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This is an appeal from an order after judgment taxing costs. An action was brought by Beresford et al., as plaintiffs against Pacific Gas and Electric Company *449 and Public Utilities California Corporation. In that action plaintiffs sought to recover damages through loss of property by fire. During the trial of the action and when plaintiffs had first rested their case, Public Utilities Calif...
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By information defendants Eckdahl, Delicti and Brown were charged with the crimes of assault with a deadly weapon with intent to commit murder, and robbery. Trial before a court sitting with a jury resulted in verdicts of guilty as to both counts against Eckdahl and Dellett. Brown was found guilty of robbery. Eckdahl appeals from the judgment and from the court’s order denying his motion for a new...
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This is an appeal from an order granting a new trial. The action is one in quo warranto to test the validity of a proceeding by which it was sought to annex 9 square miles of ocean area to the defendant city. It was brought pursuant to leave to sue in the name of the People of the State of California which was granted by the attorney general. This permission has never been revoked or modified. Th...
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Appellant was convicted of the crime of burglary in the second degree. He appeals from the judgment of conviction. At approximately 1 a. m. on January 22, 1954, a Modesto city police officer observed that a window had been broken in a Modesto market. The officer stopped his car and investigated. The lock on the rear door of the store had been broken and a Chevrolet club coupé was parked near th...
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Plaintiff appeals from á judgment after jury verdict, in favor of defendants. Question Pbesented The refusal of the court to give offered instructions concerning certain rules of defendants’ employer, the State Belt Railroad. Evidence The action was for injuries received by plaintiff when run over by a car or cars of the State Belt Railroad, an agency of the State of Califor...
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Petitioners seek a writ of mandate to compel the San Francisco Superior Court, its official reporter and the county clerk to prepare, certify and transmit the clerk’s and reporter’s transcripts of two consolidated actions in which petitioners have filed a notice of appeal. Petitioners allege as follows: On August 27, 1953, a judgment was entered in favor of the plaintiffs (petitioners were the ...
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Alleging that the failure, due to bad faith, of appellant to perform under a written agreement for the sale and conveyance of real property, respondent brought an action in the Superior Court of Los Angeles County for damages for breach of contract and was awarded judgment in the sum of $5,000 and interest. This appeal has been brought on the grounds of insufficiency of the evidence and errors ...
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—The district attorney of Los Angeles County filed an information in which defendant was accused of the crime of violating the Dangerous Weapons Control Law of 1923 (thereafter codified as Pen. Code, § 12021), a felony. It was also alleged that defendant had been previously convicted of felonies, to wit: the crimes of assault with a deadly weapon, robbery and kidnapping, on the 24th day of Apri...
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In two separate amended informations filed by the district attorney of Los Angeles County, defendant was accused of the crimes of forgery and grand theft. The amended informations also charged that the accused previously had been convicted of arson, larceny and larceny by bailee, and grand theft. He was -tried and convicted of both crimes and judgments were entered on September 1, 1953, wherein...
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Defendant, Dr. Ralph. Russell Reed, was convicted by a jury of one count of abortion and one count of attempted abortion. Proceedings were suspended, and he was granted five years’ probation, with the first year in the .county jail. He appeals on both counts. He also appeals from an order denying his motion for a new trial. In view of differences in the facts, the evidence as to each count will...
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This is an action for damages for the loss of a beach house constructed on a cliff along the waterfront in South Laguna, in a tract known as 1 ‘ Three-Arch Bay. ’ ’ In 1945, the plaintiffs purchased a lot in this tract from the defendant bank acting as trustee. This was a steep lot, some 110 feet long, running from what is known as “Bay Drive” to the ocean. In 1949, they erected a summer home, wit...
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Defendant was convicted of the offense of pimping in violation of 1 Deering’s General Laws, Act 1907 (Stats. 1911 p. 10; amended by Stats. 1921 p. 96), as charged in Count 3 of the information. Counts 1 and 2 thereof were dismissed. This appeal is from the judgment. Appellant urges that the evidence is insufficient 1. to sustain the judgment; 2. to establish venue of the alleged offense in Lo...
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Defendant was convicted on two counts of performing abortions. He appeals from the ensuing judgment and order denying his motion for a new trial. Count one grew out of his operation on Mrs. Y. She had a telephone conversation with defendant in which he asked her when she had last menstruated and told her that he could “take care of the situation” and that his fee would be $300. Later, she went ...
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VALLÉE, J. Defendant was charged with the unlawful possession of a preparation of heroin in violation of section 11500 of the Health and Safety Code. He waived a trial by jury and was tried by Judge Walter R. Evans. On stipulation the cause was submitted to Judge Evans on the transcript of the preliminary examination, each side reserving the right to introduce additional evidence. No additional...
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Defendant was charged in Count I of an information with having conspired with Rumley, Batten, and Smith to cheat and defraud Kork Incorporated, California Bank, Phillips Furring Nail Company, Security-First National Bank, and others by forging and passing checks as genuine, knowing them to be forged. Thirteen overt acts were alleged to have been performed in pursuance of the conspiracy. He was ch...
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This action arises out of a contract under which appellant, a licensed general contractor, undertook to construct a sewage treatment plant for the respondent, Quincy Sanitary District. At the same time, but through other contractors, the district was constructing a sewage collection system. The complaint contained four counts. The first was in common count form, alleging that appellant furnished m...
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The trial court sustained defendant’s demurrer to plaintiff’s second amended complaint without leave to amend and ordered a dismissal of the complaint. Plaintiff appealed. A demurrer to the second amended complaint by a codefendant, William J. Coffman, was overruled. This amended complaint alleges as a first cause of action, in substance, that about June 1, 1952, defendant Reserve Life Ins...
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In this action plaintiff seeks to set aside a judgment in eminent domain whereby the defendant school district acquired some 21 acres of land from her. Her theory is that the judgment was obtained by extrinsic fraud allegedly practiced upon her. She offers to refund the $71,400 which the district paid her for the land, less $8,800 allegedly required for her attorney’s fees in the condemnation s...
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Defendant was convicted of the crime of pandering, a violation of chapter 14 of the Statutes of 1911, page 9, Deering’s General Laws, Act No. 1906, now section 266i of the Penal Code. (1) One of his assignments of error is the admission of evidence of similar crimes. The events in suit took place at a hotel operated by the defendant. Two police officers testified that this hotel has a reput...
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On September 20, 1950, Joseph and Clarice Neidhardt entered into a written agreement with Dorothy and Joe Pavlovich to purchase from them real property in Mendocino County consisting of land upon which there was an operating motel. The written contract recites a purchase price of $27,500 and a down payment of $6,500. It required installment payments of $200 per month, applicable first to intere...
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Plaintiff commenced an action against defendants, police officers of the city of Sacramento, and the city as their employer, alleging that said police officers as agents of said city did wilfully, unlawfully and maliciously attack, strike and beat plaintiff, and praying for compensatory damages in the sum of $25,000 and punitive damages in the sum of $5,000. The ease against the city of Sa...
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The attorney general appeals from an order of the superior court directing the testamentary trustee to distribute as intestate property 1/40 of the trust assets to the estate of the trustor’s sister, May Sewell. Question Presented Where Alcoholics Anonymous of San Francisco refuses to accept a testamentary bequest to it, should the bequest be treated as intestate property or should the principle o...
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Pursuant to stipulation of the parties and order of this court, these three cases arising out of the same automobile accident were consolidated for the purposes of appeal. In all three the defendant prevailed, and the respective plaintiffs have become appellants. The actions arose as a result of a serious collision between two motor vehicles on Vermont Avenue, near 182nd Street, in Los Ang...
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Respondent has moved to dismiss the pending appeal in this case on the ground that appellant has wilfully and unlawfully ignored process of the court below and has prevented enforcement of the judgment from which he seeks relief by this appeal. Pursuant to a complaint for severe personal injuries sustained as the result of a beating allegedly inflicted upon him by Alfonso de Casaus and Victor d...
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I concur. After a careful review of the record I find myself forced to concur in Mr. Presiding Justice White’s opinion affirming the judgment in this case. This court, as pointed out by Justice White, is bound by the substantial evidence rule. Tried by that rule the evidence is sufficient to sustain the judgment. But the case leaves me with the uncomfortable feeling that an innocent man may have b...
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It is conceded by appellant that there is no dispute as to the facts herein and that the only issue involved is whether appellant received sufficient notice of the hearing of April 9, 1954, at which the court approved the final report and account of the guardian, allowed compensation for the guardian and his attorney, terminated the trust and discharged the guardian. The record shows that on March...
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After the will had been admitted to probate a contest of the will subsequent to probate, containing five counts, was filed by testatrix’ two sons. The court, sitting without a jury, found against contestants on all counts and entered judgment refusing to revoke probate of the will. Contestants appeal only on one count—the issue of undue influence. The will contest was tried with another action ...
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In this action plaintiff seeks to have an agreement for the purchase and sale of the entire stock of a corporation which she owned, together with her option to repurchase such stock, declared a usurious loan. Defendants *617 by cross-complaint demand that their title to this stock be quieted and that they recover the amount they were required to pay on account of two promissory not...
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This is an appeal by Matmor Canning Company from an order confirming the award of arbitrators in favor of the complainant Aceito, from the judgment entered in *632 accordance therewith, and from the order denying Matmor’s motion to vacate the award. On December 9, 1952, Aceito filed his motion to confirm the award. It was alleged that the motion would “be based upon the agreem...
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Plaintiff brought this action to recover damages for fright and mental suffering and for injury to her real property caused when an airplane crashed into her home. The plane was piloted by Ernest J. Galindo, named as a defendant. Galindo had a student pilot certificate, and was taking flying lessons from Lenerville, who operated a flying school at the airport in question. Galindo, under Lenervi...
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This is a contest of a will after probate. The contestant, Alice White, is the widow of the deceased. The eontestees are the three children of the deceased by a former marriage and the executor of the will. The grounds of contest are unsoundness of mind, undue influence exerted by the three children, and want of due execution. The proceeding was tried by the court sitting without a jury. The *66...
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Appeal from a judgment directing the Board of Medical Examiners to vacate its order revoking petitioner’s license to practice medicine, to reconsider his ease, and to receive and consider additional evidence. On March 19,1951, the Board of Medical Examiners revoked the license of Joseph Edwin Whitlow to practice medicine. *672 Whitlow was not represented by counsel in the proceeding. The boar...
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128 Cal. App. 2d 676 (1954) FRANK T. HICKEY, INC. (a Corporation), Respondent, v. LOS ANGELES JEWISH COMMUNITY COUNCIL (a Corporation) et al., Appellants. Civ. No. 20216. California Court of Appeals. Second Dist., Div. Three. Nov. 12, 1954. Glickfeld & Goldstein for Appellants. Prentiss Moore for Respondent. VALLEE, J. Appeal by defendants from a judgment in favor of plaintiff for mone...
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Defendant was charged, in two counts, with burglary. In a trial by jury he was found guilty, as to both counts, of burglary in the second degree. Defendant appeals from the judgment and from the order denying his motion for a new trial. Appellant contends that the evidence is insufficient to support the verdict. On the morning of June 18, 1953, Mr. Patton discovered that two boxes of tools had bee...
Views: 0
Defendant and one Singh were charged in an information with: Count I, offering to sell heroin; Count II, conspiring to obtain money by falsely promising to sell heroin; Count III, conspiring to cheat and defraud by means which were in themselves criminal. Defendant pleaded not guilty and the cause went to trial before a jury. After defendant had testified, and apparently after nearly all of the e...
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Defendant was charged with violation of section 11500 of the Health and Safety Code, in that, he did unlawfully have in his possession flowering'tops and *700leaves of Indian Hemp. It was also alleged in the information that defendant had been convicted previously of violating said section, and that he had served a term of imprisonment therefor in the state prison. Defendant denied the allegation ...
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This is an appeal from that portion of the judgment which was entered in favor of defendant George Souza. No appeal is taken from the portion of the judgment granting plaintiff judgment against codefendant Robert McCoy. Defendant Souza and defendant McCoy entered into a partnership agreement on December 1, 1948, under the name of Los Banos Hay and Grain Company. In 1949 defendants app...
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This is an appeal from an order denying defendant’s motion for a new trial. An information filed March 9, 1954, by the district attorney of Alameda County, charged Garfield Smith, appellant herein, Vernal Owens and Lawson Thomas Venson with burglary in that on December *707 11, 1953, they entered the jewelry store of Clement L. Palmer in Oakland, California, with the intent to commit theft ther...
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Certiorari. Petitioner seeks the annulment of an order of respondent court on the ground that it exceeded its authority in appointing an attorney to represent the beneficiaries of a testamentary trfist. *712The Security-First National Bank of Los Angeles is the duly appointed and acting testamentary trustee pursuant to its designation as such in the last will and testament of decedent and pursuant...
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Application for supersedeas. Respondent recovered judgment against appellant on August 3, 1954, for $3,500 and costs. Motions for new trial, or in the alternative, for judgment notwithstanding the verdict were denied August 27, 1954. Appellants filed notice of, and bond on, appeal on September 10. On September 16, 1954, respondent filed his exception to sureties. By reason of his illness and confi...
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By her last will Callie I. McDonald left all of the residue of her estate, share alike, to her two surviving sons, Lester and Ronald McDonald. She appointed her son Lester executor without bond. Her will was handwritten, and dated in 1947. The residue comprised practically all of her estate, there being no specific bequests of any moment, and very little debt. *720 Callie’s husband and her yo...
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The within action is on a promissory note for $3,250. The defense admitted delivery of the note and ownership by plaintiff. It was also alleged that the note was “supposed to be cancelled and returned to defendants’’ because plaintiff had obtained a judgment against one Keyser in connection with the transaction for which the money was originally lent by defendants to plaintiff. "When the case was ...
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Appellant was charged with a violation of section 502 of the Vehicle Code. A prior conviction was also alleged. The first offense had been committed a few years before. The prior was admitted and a plea of not guilty entered. A jury trial resulted in a verdict of guilty. It is contended on appeal that, I, “The evidence is so close and conflicting that the court should closely scrutinize the cas...
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This is an action for declaratory relief, dissolution of a partnership, if found to exist, or, in the alternative, for partition. In their answer defendants claim an interest of at least 33% per cent in the property involved, deny generally the allegations of the complaint and seek an accounting. The trial court found that a receiver should be appointed, the property sold and that the proceeds fro...
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The defendant was charged with the crime of kidnapping, in violation of section 209 of the Penal Code; in a second count with the crime of rape; and in a third count with the crime of robbery. He was also charged with a prior conviction. His motion for a change of venue was denied, and he pleaded not guilty as to each count of the information and admitted the prior conviction. A jury found him gui...
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Plaintiff, Gaston Young, was injured when he was struck by an automobile operated by defendant, John W. Carlson. In this action for damages the plaintiff proffered properly drafted instructions on last clear chance. The trial court refused to give such instructions. The jury brought in a verdict for the defendant. Plaintiff appeals from the judgment entered on that verdict. His sole contention ...
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Defendant appeals from his jury conviction for violation of section 11500, Health and Safety Code (possession of marijuana). Questions Presented Alleged error in rulings on evidence and in refusing to give certain instructions. No attack is made on the sufficiency of the evidence. Evidence On December 29, 1952, 10:30 a. m., Officers Etherington and White of the San Francisco Police Bureau...
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This is an action for breach of a written contract. The court sitting without a jury gave judgment for defendants and plaintiff appeals. In the agreement of July 6, 1951, incorporated by reference in the complaint, plaintiff released all claims against defendants, their former employees, for shortages on inventories and operations occurred during their employment and for shortages occurred...
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This is an appeal from a judgment after jury verdict in a condemnation suit brought by respondent Redwood City Elementary School District. The jury assessed *768 the market value of the land with improvements thereon at $83,500, as of November 14, 1952, and judgment was rendered in favor of appellant Katherine Gregoire, in that amount. The property here sought to be condemned ...
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This is an appeal from a judgment for plaintiffs after a trial at which defendants failed to appear and from an order denying defendants’ motion to set aside said judgment under section 473, Code of Civil Procedure. The action was one for damages arising out of alleged defects of a house constructed by defendants and sold by them to the plaintiffs. The complaint was filed on February 7, 1951. The ...
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This is an appeal from a judgment denying appellant’s claim for damages and an injunction against defendant and respondent, Pacific Aggregates, Inc. The first cause of action alleged negligence on the part of respondent in carrying on its mining operations proximately resulting in damage to appellant’s crops from overflow waters. The second cause of action alleged a nuisance in that respondent ...
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This is an appeal from an order modifying decree of divorce by which respondent’s alimony payments to his former wife were reduced from $100 per month to $25 per month, and which awarded the custody of the minor child to the appellant mother as provided in the final decree of divorce, but defined respondent’s right of visitation in detail. The complaint for divorce filed May 29,1950, on the gro...
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This is an appeal from an order denying appellant’s motion to vacate a judgment, the purported grounds being that the original judgment was invalid, that it was in excess of jurisdiction, and that it was secured by extrinsic fraud. We have given appropriate and sympathetic consideration to the presentation by appellant, despite its inexpertness, but are unable to find any merit to his contentio...
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Petitioner seeks a review and annulment of an award by respondent commission of maximum temporary partial disability benefits. On July 2, 1953, Badge Moore, while in the course of his employment as a brick tender, sustained an injury to his back, resulting in temporary total disability. At a hearing on February 16, 1954, respondent commission found that the period of temporary total disability ran...
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Appeal by defendant from that part of an interlocutory judgment of divorce which orders him to pay plaintiff’s attorney’s fees. The complaint, filed October 1, 1952, did not allege that plaintiff had been a resident of the state one year and of the county of Los Angeles three months next preceding the commencement of the action. (Civ. Code, § 128.) On October 22, 1952, on the hearing of an orde...
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—Appeal by plaintiff from an adverse judgment entered on a verdict of a jury in an action for damages for personal injuries. *821 The accident occurred about 10:30 a. m. on July 11, 1949, on Mayflower Street in the county of Los Angeles. The pavement on Mayflower was between 22 and 24 feet wide. The area was residential. Plaintiff, driving a Ford truck, entered Mayflower at its intersection w...
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On September 20, 1951, the plaintiff leased to the defendant a one-story brick and steel building for use as a warehouse for the storage of personal property. The term of the lease was three years and the rental was payable monthly. The lease provided, among other things, that it was understood that the building was not in first-class *825 repair and “that lessee takes said premises as is”; tha...
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This is an appeal from a judgment for $6,250 following a jury verdict in favor of plaintiff, whose recovery was based upon a written agreement of employment between him as a real estate broker and the defendant. On January 22, 1951, defendant-appellant Freeman approached plaintiff-respondent Summers. The appellant owned a piece of commercial property in South San Francisco and was interested in...
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The board of directors of Turlock Irrigation District, as trustees and officers of an improvement district within the irrigation district, known as Improvement District No. 14-A, brought this action for declaratory relief. The board asked for a judgment declaring the rights, duties and obligations of the parties to the action with respect to repairing the portions of a pipeline which the board in ...
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Petitioner Horn filed an application for adjustment of claim before the respondent commission. His application, made upon a form supplied by the commission, alleged that, while employed as a city fireman on September 12, 1953, by the city of Stockton, he sustained injuries arising out of and in the course of his employment, as follows: “Had pain in Chest Wall while working, resulting in Myocardia...
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This is an appeal by the defendant from an interlocutory judgment in an action for divorce. Appellant first contends that the trial court erred in failing to find that the evidence of condonation compelled a judgment denying plaintiff a decree of divorce. This contention is not meritorious. While there was some evidence relative to condonation, the record contains ample evidence to support the tr...
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These two actions, consolidated for trial and on appeal, show that defendant was charged in one amended information (Cr. 9595) with five counts of violating section 470 of the Penal Code (forgery), that he had been previously convicted of attempted robbery in the first degree, and had served a term therefor in the state’s prison. The second information (Cr. 9611) charges two additional counts unde...
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The decision this day. filed in action No. 20596 (Estate of Bodger, ante, p. 710 [276 P.2d 83] is determinative of all issues presented in plaintiffs’ petition in the instant matter. It is therefore adjudged that the order of the Superior Court of the State of California, in and for the County of Los Angeles in the matter of the éstate of John C. Bodger, deceased, appointing Attorney McCarthy as c...
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This is an appeal from a judgment in favor of the plaintiff, as assignee of Howard Low, on a claim for personal services. During the month of September, 1951, the assignor, a licensed real estate agent, entered into an oral agreement with the defendant to work for him as a salesman; the defendant is a duly licensed real estate broker with an office in the city of Fresno, The contract between Howar...
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As the result of an action to enjoin a claimed continuing violation of zoning ordinance number 678, of San Bernardino County, brought by said county on February 16, 1953, in the name of the People of the State of California, against defendant and appellant Vernon Johnson, the trial court, on August 5, 1953, rendered judgment in favor of plaintiff and respondent. Zoning ordinance number 678...
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This is a quiet title action in which the plaintiff-appellant was denied relief because of his prior unconscionable conduct. Appellant, a concrete contractor in Mill Valley, California and the respondent, a bookkeeper and secretary by occupation, *13 were good friends for many years. In July, 1947, appellant, told respondent that he owed a lot of bills around the town of San Rafael which amou...
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Plaintiff was associated with defendant in defendant’s real estate brokerage business, first as a licensed real estate salesman and later as a licensed real estate broker. The- association was terminated on or about May 5,1952. The action is for an amount of $14,907 allegedly due plaintiff from defendant as balance of moneys earned during this relationship over payments received. The court gave pl...
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Plaintiff appeals from (1) a minute order entered September 18, 1953, (2) an order made September 22, 1953, and (3) an order made October 1, 1953. The orders appealed from (a) directed defendant to pay plaintiff for her support $250 a month, commencing September 20, 1953, and to pay her attorney $50 court costs and $500 attorney’s fees at the rate of $50 a month, the first payment to commence Oct...
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Defendant appeals from a judgment of the trial court directing sale of real property in a partition action. The sole ground of appeal is that there is no evidence to sustain this finding of fact: “III The Court further finds that the real property hereinafter described, and the personal property heretofore described, is so situated that partition cannot be made without great prejudice to the pa...
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From an order denying plaintiff’s motion for the issuance of a writ of execution on a judgment for child support, plaintiff appeals. *24 Chronology 1. August 6, 1937, plaintiff obtained an interlocutory judgment of divorce against defendant by which judgment she was awarded the custody of the minor son of the parties, then age 2, and defendant was ordered to pay plaintiff the sum of $4 pe...
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From a judgment in favor of defendant after trial before the court without a jury, in an action to recover upon a promissory note, filed by Mable Belle Carter, the widow of Frank Carter and executrix of his estate, plaintiff appeals. At the commencement of the trial Robert M. *27 Ogden, the present administrator with will annexed of the estate of Frank Carter, was substituted as plaintiff. F...
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James T. Prewitt and defendant and appellant James Russell Travis were charged with two counts of robbery and one count of burglary. It was also alleged that at the time of the commission of the offenses defendants were armed with pistols. Defendant Prewitt entered a plea of guilty as charged in Counts I, II and III of the information. He admitted being armed as to Counts I and II and denied bein...
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Edward Daniel Samusick and Vincent Eugene Mandella were charged with robbery. It was also alleged that at the time of the commission of the crime defendants were armed with a .22 automatic. The cause was called for trial, evidence was presented and the cause was argued. On motion of the district attorney the allegation that defendants were armed with a deadly weapon at the time of the commission o...
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Defendant Antista and codefendant Rivers were charged with the unlawful possession of marihuana, in violation of the Health and Safety Code, section 11500. Defendants entered pleas of not guilty as charged in the information. In a trial to the court, codefendant Salome Rivers was found not guilty and defendant Bart Antista was found guilty as charged in the information. Proceedings were su...
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This is an action for partition of real and personal property and for an accounting. Plaintiff and appellant Orville R. Scott and defendants and respondents Roy R. Staggs and his wife, Bessie, acquired certain unimproved real property in Crestline Village. Plaintiff owned a one-half interest and defendants Staggs, as joint tenants, owned the other one-half interest. Plaintiff paid one-half of its...
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This action was brought by Elsinore Union Elementary School District of Riverside County against E. J. Kastorff and Seaboard Surety Company, a corporation, upon the bid bond of E. J. Kastorff, as principal, and Seaboard Surety Company, as surety. The plaintiff had advertised for bids for the construction of two classroom buildings. On August 12, 1952, Kastorff submitted a bid to plaintiff for t...
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The widow and two minor children of Kresten Jensen recovered judgment for $25,000 from Southern Pacific Company for the death of Kresten, which occurred while he was driving a truck easterly on Broadway Street, Burlingame, across the Southern Pacific tracks. He was hit by a southbound train. It was 5 p. m. on May 8, 1946. (1) Did the verdicts in favor of the engineer, conductor and f...
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Defendants Ivan M. Ansite, James R. An-site and Maurice J. Ansite, are copartners doing business under the fictitious name of Acme Spray Painters. They were under contract with the State of California, through the Department of Public Works, to clean and paint the Little Pico Creek Bridge in San Luis Obispo County. The contract gave the state the right to inspect the work to insure conformance ...
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129 Cal. App. 2d 89 (1954) ELEANOR TYNAN PUTMAN, Respondent, v. ARTHUR A. CAMERON, Appellant. Civ. No. 20019. California Court of Appeals. Second Dist., Div. Two. Nov. 22, 1954. Overton, Lyman, Prince & Vermille for Appellant. Loeb & Loeb, Allen E. Susman and Herman F. Selvin for Respondent. MOORE, P. J. The primary question for decision is whether an agreement was made prior to th...
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From a judgment of guilty of (1) fraudulently and feloniously altering a grant deed on or about October 26, 1950, and causing the same to be recorded in the official records of Los Angeles County with the intent to cheat and defraud, and (2) feloniously and knowingly procuring and offering to be filed, registered and recorded in the official records of Los Angeles County a false and forged instrum...
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Convicted of having had in his possession “flowering tops and leaves of Indian Hemp,” familiarly called “marijuana,” (Health & Saf. Code, §11500) a narcotic, defendant seeks a reversal on the grounds of (1) the insufficiency of the evidence to prove he had knowledge of his possession of the contraband; (2) errors in rejecting appellant’s offered instructions on (a) knowledge, (b) giving other i...
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Plaintiff appeals from an adverse judgment in a suit to enjoin defendant from soliciting customers on a cleaning route purchased by plaintiff from defendant and for damages. Defendant conducts a cleaning and dyeing establishment under the fictitious name of Los Angeles Master Cleaners and Dyers. Prior to December 19, 1952, he owned and used a truck in traveling a route for the pickup and d...
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William H. Acason and one Jennings were charged in Count I of an amended information (No. 150845) with issuing a check without sufficient funds on July 11, 1952. They were charged in seven other counts therein with grand theft of sums of money during the period of May 5, 1952, to July 17, 1952. They were charged further, in another count, with criminal conspiracy to defraud by criminal means and ...
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This is an appeal from a judg ment of nonsuit. Plaintiffs sued defendant for damages sustained by plaintiff Helen Hale as a result of a fall in defendant’s store. The trial was by the court sitting without a jury. At the close of the plaintiffs’ case, defendant moved *126 for a nonsuit. The motion was granted and judgment entered accordingly. Plaintiffs appeal. On September 1,...
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This is an action for a rescission. On June 1, 1946, these parties entered into a contract by which the plaintiffs agreed to buy and the defendant agreed to sell a 5-aere tract of land. The purchase price was $4,500, payable $550 down, with the balance payable in monthly payments of $30, including interest. If and when the purchase price was fully paid, the defendant agreed to execute and deliver ...
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Plaintiff, Mary Polioudakis, brought this action against the defendant city for damages for a claimed injury to her wrist," alleged to have been received as a result *138of the negligence of the driver of the city-operated bus in which plaintiff was a passenger. The jury brought in a verdict in favor of the defendant. From the judgment entered on that verdict plaintiff appeals. Her two contentions...
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129 Cal.App.2d 144 (1954) 276 P.2d 614 YVONNE MODICA, Appellant, v. FRANK LEE CRIST et al., Respondents. Docket No. 16032. Court of Appeals of California, First District, Division One. November 23, 1954. *145 W. Gordon Eustice for Appellant. Crist, Stafford & Peters and Elton F. Martin for Respondents. WOOD (Fred B.), J. In this action for damages allegedly caused by the negligence of an attorney...
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Appellant seeks reversal of an adverse judgment in his quiet title action in the court below, and insists as a matter of law he is entitled to prevail. Kenneth and Antoinette Nevins were married in 1929, and although they are now divorced, and Kenneth has remarried, for convenience we shall herein refer to them as husband and wife. They have two daughters, one born in January, 1930, the ot...
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This is an action in declaratory relief. The pleadings consist of the complaint answer, cross-complaint, and the answer to the cross-complaint. The court decided for the defendant and the plaintiffs appeal. The parties to the action are brothers and sisters. As appellants’ brief recites, “In 1929 the father, Holmes Heyward Dyer, invented and in 1931 patented a certain device which he then cal...
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Plaintiff appeals from a judgment of dismissal based on the doctrine of res judicata. The issues presented by plaintiff’s third amended complaint are asserted to have been previously determined by the judgment of the Superior Court of Los Angeles County in the *167 case of Howard v. General Petroleum Corp. (hereinafter referred to as the Howard ease), whi...
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On petition we heretofore issued a writ to review an order of the Industrial Accident Commission denying compensation to petitioner for the loss of an eye. Respondent commission found that petitioner’s injury did not arise out of and in the course of his employment as a caddy by the Stockton Golf and Country Club. *175 There is no dispute as to the following facts: The Stockton Golf and Cou...
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This is an action for specific performance or for damages in the event specific performance was impossible. The complaint alleged that on April 15, 1952, the parties entered into a contract whereby the defendant agreed to sell, and plaintiff agreed to buy a 40-acre tract of land for $2,500; that this was a fair, just and reasonable value of the property; that on April'28, 1952, the defendant re...
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Plaintiff J. A. Folger and Company, a corporation, recovered judgment in the sum of $4,034.64 (the value of 198 cases of coffee) from defendants George Williamson and George B. Plant, individually and as partners doing business under the name of International Freight-ways. Plant has appealed, claiming that certain of the findings of fact are without support in the evidence. It appears with...
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This is an appeal from a money judgment rendered against appellant as Administrator of the Estate of Roy Coffer, deceased, in an action brought by respondent upon an account stated between her husband and his father, the deceased, Roy Coffer, and which was awarded to her by the provisions of an interlocutory decree of divorce. The action was brought against Roy Coffer who died during the penden...
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Appellant was indicted by the grand jury of Napa County and charged with two counts of burglary, one alleged to have been committed on January 3, 1954, and the other on January 28, 1954. The jury found him guilty on both counts and his motion for a new trial was denied. This appeal is from the judgment entered on the verdicts and from the order denying a motion for a new trial. Appellant urges ...
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Plaintiffs and appellants Scribner, husband and wife, brought this action for claimed injuries to the wife, alleging that on October 16, 1950, she slipped on the floor of a bakery owned and operated by defendants and respondents Bertmann. It is further alleged that an invitee, Mrs. Scribner (hereinafter referred to as plaintiff) entered the store at about 10 a. m. to purchase some bread; that s...
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Guy N. Stafford has moved the court to recall and correct the remittitur issued out of this court in Coburg Oil Co. v. Russell; Guy N. Stafford, defendant and appellant, Civil No. 17718, reported in 100 Cal.App.2d 200 [223 P.2d 305]. The transactions out of which the present action arose have been the subject of extended litigation, phases of which were considered on appeal in Stafford v. ...
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Plaintiff brought this action for “rescission, declaratory relief and money had and received.” The principal defendant (hereinafter referred to as defendant) is Edith May Foster, also known as Edith May Shumaker. Plaintiff obtained a judgment against this defendant for $9,383.16. Charles T. Rippy and wife and Charles T. Rippy, Jr., and wife were named as defendants. Judgment was in their favor. Pl...
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Plaintiff appeals from an adverse judgment in an action to recover for personal injuries. Plaintiff was injured during the course of his employment as a painter. He was the foreman in charge of painting the exterior of the Lankershim Hotel in Los Angeles. His injuries occurred when one side of an electrical swing stage upon which he had been working, gave way and precipitated him 50 feet to a S...
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This is an appeal from a judgment entered after the sustaining of a demurrer. A demurrer to the third amended complaint was sustained on February 26, 1954, with leave to amend within 15 days. No amendment having been filed, a judgment of dismissal was entered on March 17, 1954, from which the plaintiff has appealed. The third amended complaint alleged that at all times material the defendant wa...
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In a condemnation action tried without a jury defendant appeals from the judgment awarding him $17,500. Plaintiff appeals from the portion of the judgment awarding defendant $47.09 costs, and from the order made after judgment allowing such costs. Questions Presented Defendant’s appeal: 1. By failing to object to its introduction may defendant now claim error as to certain evidence ? ...
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This is an appeal from a judgment of the Superior Court of Santa Barbara County, directing the issuance of a peremptory writ of mandate commanding the Municipal Court of Santa Barbara Judicial District, Honorable Frank P. Kearney, Judge of said court, and John D. Hossaek, official reporter thereof, to prepare a clerk’s and reporter’s transcript on appeal in a certain action entitled, “People of t...
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Motion to dismiss appeal. An alternative writ of mandate was granted to plaintiffs. Defendants appeared and filed a demurrer to the complaint, and notices of motion to strike portions of the complaint and to quash and dismiss the alternative writ. The demurrer was sustained without leave to amend; the motions were granted; and the action itself was dismissed. This judgment was entered Decembe...
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Appellant was charged with having in his possession a preparation of heroin in violation of section 11500 of the Health and Safety Code, and was also charged with three prior felony convictions. He pleaded not guilty to the possession of narcotics charge but admitted the prior convictions. Following a verdict of guilty and the denial of probation and of a motion for a new trial, judgment was prono...
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Defendant and appellant county of Orange, after judgment on a jury verdict for plaintiffs for $8,000 damages, filed this appeal. It is claimed, in one cause of action, that the damage to plaintiffs’ property was by reason of defendant’s failure to erect a dam or other obstruction sufficient to prevent surface and flood waters from flowing upon plaintiffs’ land, and in a second cause of action, th...
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The appellant school district instituted these proceedings in mandamus and in certiorari against the respondent city, questioning the legality of the adoption of a resolution by the city council on March 17, 1953, proposing the annexation of certain territory under the Annexation of Uninhabited Territory Act of 1939 (Gov. Code, §§ 35300-35326 and §§ 35000-35003 * ). From a judgment i...
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This is an appeal from an order made after final judgment denying the motion of appellant’s attorneys for counsel fees to be paid out of the portion of the judgment awarded to the compensation carrier of appellant’s employer pursuant to Labor Code, section 3856. Plaintiff-appellant Quisenberry while in the course of his employment by Yellow Cab Company was injured by an automobile driven by def...
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Appellants brought this action to foreclose a chattel mortgage. Judgment was given for plaintiffs as to all of the issues and all of the property against all defendants except as to the property in controversy with defendant-respondent Alaska Packers Association. On June 13, 1947, one Gann was the tenant in possession of certain real property owned by respondent which he was using for ship...
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Appeal by defendant Aldon Construction Co., Inc., from an adverse judgment in an action for alleged wrongful death. The action arose from the death of Leo Raich, caused by a fire which resulted when a trench digger operated by him in the construction of a sewer struck a submerged casing-head gasoline pipe in a public street. Plaintiffs Anna Raich, Leo’s widow, and Ann Raich, his minor daughter,...
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On March 10, 1947, respondent and appellant, who were then husband and wife, filed a joint petition in the Superior Court of San Bernardino county for the adoption of William Harold Shook, now known as Michael John Coughlin. Said action was numbered 18030. On September 12, 1947, the Department of Social Welfare recommended the denial of this petition upon the ground that the natural mother could n...
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Respondent John H. Coughlin was by order of the Superior Court of San Bernardino County, on November 25, 1949, appointed guardian of the two minors here involved. Thelma Ruth Coughlin (petitioner and appellant herein) filed objections to the petition of Dr. Coughlin in the guardianship proceeding and by counterpetition asked that she be appointed guardian of both children. The trial court denied ...
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This is an action in equity to vacate the order of adoption made and entered in action number 22723 in the Superior Court of San Bernardino County. The trial court sustained a general demurrer to the complaint without leave to amend and plaintiff appeals from the judgment thereupon entered. Plaintiff and defendant were married in 1936 and separated in 1948. Defendant secured an interlocutory decre...
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This is an appeal from a judgment after the granting of motions for a nonsuit. *297The action was brought on September 17, 1951, against H. A. Castleman, B. B. Hanson, and certain fictitious defendants. The complaint alleged that Castleman was the owner of a building on the west side of Crest Road in Crest-line, and Hanson was the tenant of another building on the ivest side of that road; that on ...
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On November 17, 1952, plaintiff cornmenced this action and his complaint contains the following allegations: “1. That on or about the 15th day of September 1941, *301defendant had suffered for years with an arthritic condition in his neck, which made it necessary for him to hold his head at an abnormal angle, because of intense physical pain. "That defendant declared he had been treated by doctors...
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Petitioner State of California, hereinafter for convenience called Subsequent Injuries Fund, seeks review of an award made against it by respondent Industrial Accident Commission in favor of respondent Springer, an industrially injured employee with a preexisting permanent disability. Springer is a deaf mute; on May 13, 1952, he sustained an industrial injury to the fingers of his left han...
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Defendant Miller appeals from judgments of conviction of four connected offenses, burglary, robbery, assault with a deadly weapon and conspiracy to commit robbery. He was jointly charged with John Frieholtz, Vernon Geske and Bobert Mario Flores. Frieholtz pleaded guilty to the charges and testified for the People at the trial of the other three. The evidence showed that the four defendants agre...
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This is an appeal from an order dismissing an order to show cause re support pendente lite, attorney’s fees and court costs, and to restrain defendant from (1) annoying plaintiff, or (2) encumbering or disposing of community property. In a prior suit each party had sought a divorce on the grounds of cruelty. That case was tried in February, 1954. Judgment was entered therein on March 8, 1954, deny...
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Plaintiff brought this action against Paul E. Erwin, his wife, Helen Erwin, Worcester Thomas, and his wife, Katherine Thomas, for the recovery of the sum of $4,500 allegedly deposited with the defendants to be used in the purchase of cattle for plaintiff which were to be sold for his account. It was alleged that defendants orally agreed to keep the sum of $4,500 contributed by plaintiff in a se...
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In 1940, Arthur Shivell recovered judgment against John Hurd for $1,250. Shivell, having been declared bankrupt, his trustee declined to take steps to collect the judgment and Shivell instituted the proceedings here under review to compel a sale of real property of Hurd and his wife consisting of adjoining lots, one unimproved, the other improved with a residence. The property was subject to a ho...
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This is an appeal from an order denying a change of venue. The nature of the action “must be determined from the allegations of the complaint on file at the time the motion was made and from the nature of the judgment which might be rendered thereon, assuming the truth of the allegations.” (Bybee v. Fairchild, 75 Cal.App.2d 35, 37 [170 P.2d 54], citing Neet v. Holmes, 19 Cal.2d 605 [122...
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In January, 1950, Thomas J. Walsh was convicted of robbery and six assaults with a deadly weapon with intent to commit murder. He neither moved for new trial nor did he appeal. In April, 1954, he filed in the superior court a petition coram nobis to vacate the judgment. The petition was denied and he has appealed. As grounds for vacating the judgment, his petition alleged: (1) Insufficiency...
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Defendant was convicted by a jury of the following offenses committed on one K. on November 25, 1953: (1) violation of section 288a, Penal Code (oral copulation); (2) violation of section 286, Penal Code (sodomy); (3) violation of section 245, Penal Code (assault with a deadly weapon); and of one offense committed on one E. on November 27, 1953, violation of section 288a, Penal Code (oral cop...
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This is an appeal from a judgment of nonsuit in a personal injury action based on Vehicle Code, section 403 (guest statute). Appellant Halstead, a metal worker living in Redwood City at the time of the accident, arranged to go sea fishing with a Mr. Merryman, a Mr. Abbott and Mr. Paul, the *340 respondent. They set off for Princeton from Redwood City in Paul’s automobile at 5 a. m. and boarde...
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Respondents-defendants, other than William F. Thompson, have filed two motions to dismiss on the ground the notice of appeal was not filed within the time prescribed by the Rules on Appeal. Notice of appeal must be filed within 60 days from the date of entry of the judgment except that when a valid notice of intention to move for a new trial is served and filed by any party within 60 days after...
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Plaintiffs and respondents C. E. Sampson and Frank W. Royer et al., brought this action in trespass and sought injunctive relief and damages against defendants and appellants R. W. Page, Joe Corio et al., on the theory that- they were rightfully in possession of certain placer mining claims under purchase lease from David D. Duncan and wife, owners, running from October 15, 1946, to October 15,...
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Appellant Clarence Tynan is the life income beneficiary of certain trusts created by his wife, Annie Tynan, by will. Their son, Lester M. Tynan, is trustee *365 and respondent herein. The appeal is from an order approving and settling the trustee’s first report and account, covering the period May 17, 1951, to April 30, 1953. * Appellant seeks to charge respondent in t...
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Plaintiff-respondent Hawaiian Pineapple Company, which was engaged in canning peaches in 1951 in its San Jose plant, contracted with defendant-appellant Eckert Engineering Corporation to store certain ripe peaches under refrigeration in appellant's cold storage plant at Manteca. Beginning August 29,1951, and over several days thereafter 27,299 boxes of peaches were delivered to appellant by respon...
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This is an appeal by plaintiff, Pearl Sherman, from an order granting defendants’ motion for a new trial upon the ground of the insufficiency of the evidence. The defendants, Vivian Panno and Carlo Panno, husband and wife, have cross-appealed from the whole and each and every part of the judgment. *377 The action is one by Pearl Sherman and her husband, Marty Sherman, to have the ...
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Plaintiff wife was awarded an interlocutory decree of divorce from defendant husband. The decree gave to the wife an undivided one-half interest in a nine-unit furnished court in Sierra Madre. It was stipulated at the trial that this property belonged one-half to the wife as her separate property and that the other one-half belonged to the husband and wife as community property. The decree gave th...
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Defendant Lama was charged with the unlawful possession of heroin in violation of section 11500 of the Health and Safety Code. It was further alleged that defendant had suffered three prior convictions in the years 1941, 1942 and 1949, for violations of the same section or its predecessor, section 11160. Upon arraignment defendant entered a plea of not guilty and denied the prior convictions. He ...
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Laboo Singh, plaintiff and appellant, hereinafter called “Laboo,” sued defendants and respondents to quiet title to an undivided one-half interest in certain real property and for an accounting of the rents, issues, and profits therefrom. The defendants answered and Clara Banes, hereinafter called ‘ ‘ Clara, ’ ’ cross-complained, seeking to have her title to the same real property quieted as agai...
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Defendant appeals from an “Order for Execution and Modification of Decree” (of divorce). Plaintiff appeals from certain portions of said order. Questions Presented I. Does a divorce decree providing alimony and support of two children, without segregation as to amount, become void when one child reaches majority? *405 II. Did the court have power to modify the decree to reduce the support...
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This appeal from a judgment of dismissal, entered following the sustaining of respondents’ demurrers without leave to amend and the granting of respondents’ motion to dismiss, involves a conflict between a purported mining locator claiming rights under the general mining laws (30 U.S.C.A. § 22 et seq.) and a lessee under the Mineral Leasing Act of 1920 (30 U.S.C.A. § 181 et seq.). Appellan...
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This appeal was taken by defendant George Smith Mann, for himself alone, from an order granting motion to set aside a default judgment in favor of said appellant alone upon his cross-complaint, and to file respondents’ answer to cross-complaint, copy of which was attached to their notice of motion. *422The instant action is against appellant and defendant Witcher, both of whom were licensed real e...
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As recited in appellant’s brief, “This is an appeal from an order of the court below approving an agreement entered into by R. E. Allen, administrator of the Estate of Herbert W. Ward, Raymond G. Garner and Ward Enterprises, Inc., a California corporation, in compromise of pending litigation and claims against the estate. The factual background of the agreement and order is as follows: “Herbert W....
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is an appeal from the judgments and This orders denying motions for a new trial. Appellant was charged by information filed July 29, 1953, *430 with burglary, attempted rape and robbery in three counts. The trial was continued from time to time at the request of defendant. On November 24, 1953, appellant was charged in another information with two counts of attempted burglary alleged to have ...
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This is an appeal from a judgment of nonsuit, granted on plaintiffs’ opening statement. The action is for damages growing out of an automobile accident. Plaintiffs alleged negligence, in general terms, in both the operation and maintenance of defendants’ vehicle. Plaintiffs’ opening statement was as follows: “Plaintiffs expect the evidence in this ease to show, in reference to the issue of ...
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I concur in the opinion of Mr. Justice Wood, in the judgment, and in the comments of Mr. Presiding Justice Shinn. Respondent’s petition for a hearing by the Supreme Court was denied January 5, 1955. Traynor, J., and Spence, J., were of the opinion that the petition should be granted....
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This action for damages arose out of an automobile collision which occurred on August 18, 1952, at about 11:30 a. m. on United States Highway 101 approximately 8 miles south of Laguna Beach. A jury trial resulted in a verdict in favor of plaintiff Charles Linn in the amount of $1,370.91 and in favor of his wife, Readell Linn, for the sum of $2,278.31, all against the defendant Benjamin C. Roby. T...
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This is an action for damages to the “Barbara,” a boat owned by plaintiff Robert Nemec, and to a pier and float owned by plaintiff copartnership occasioned when the “Balboa,” a boat owned by the defendant Newport Bay Investment Company and operated by defendant Hal G. Polley ran? into and collided with the Barbara, then moored at the said pier and float on the south shore of Balboa Island, Newport...
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Decedent Walter F. Lofy, Sr., was a switchman for defendant Southern Pacific Company. He was employed in the switching yards of that company at Colton, California. He was riding a freight car on one of the switching tracks in the yard, as the ear was being pushed slowly up to another for coupling. Decedent had his left foot on the last step down on the ladder going up the side of the car. ...
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This is an appeal by plaintiff from an order denying his motion for change of venue. There is also a purported appeal from the order of the trial court denying his motion to dismiss. I The order denying the motion for change of venue. June 3, 1953, plaintiff filed an action in the superior court of Los Angeles County to recover on a promissory note in the amount of $30,000. At the timé pl...
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Following a judgment of guilty of violating section 245 of the Penal Code (wilful, unlawful and felonious assault upon a human being by means of force likely to produce great bodily injury), after trial before the court without a jury, defendant appeals from (a) the order granting probation and (b) the denial of his motion for a new trial. Facts:* Mr. Holt, the complaining witness, testified that ...
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Plaintiff commenced an action against defendant to recover for damages to plaintiff’s airplane when it was blown upside down at defendant’s airport, the com-plaintiff alleging that defendant had failed to use ordinary care in the storage of the plane. Defendant denied the material allegations of the complaint and also set up an affirmative defense that the relationship of depositary for hire had ...
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In April, 1949, one Alex Wilson commenced an action against plaintiffs- herein for recovery of money alleged to be due from these plaintiffs to Wilson for services rendered, and caused an attachment to be levied against certain moneys on deposit to the credit of plaintiffs in a title insurance company. The undertaking on attachment was furnished by defendant American Surety Company, and the sum...
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In this action for declaratory relief, it was alleged in the complaint that a controversy existed between plaintiff and defendants as to which of the defendants was the beneficiary under a certain certificate that was issued in connection with a group policy of insurance. Plaintiff deposited in court, for payment to the beneficiary as determined by the court, the amount of the proceeds then due un...
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James J. McGuigan, while working at his job of herder for the Southern Pacific Company, suffered a heart attack from which he died. His widow brought this action under the Federal Employers’ Liability Act to recover damages for the death of her husband, it being claimed that the death resulted from the negligence of the employer, or from the negligence of others for whom the employer is liable....
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This is an appeal from an order modifying an interlocutory judgment of divorce and final judgment of divorce which increased an award to her of alimony from $100 per week to $150 per week. At the time the increase to $150 was made, the respondent was required to pay, and was paying in addition thereto, $75 per week to appellant for the support of their daughter. *499The parties were married 18 yea...
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The plaintiffs appeal from a judgment of dismissal of a taxpayers’ suit brought to enjoin the intended dedication of a right of way by defendant Los Angeles City High School District, and to enjoin the intended expenditure of funds by defendant district for improvement of the same. The plaintiffs, Walter Ransom, Ab Waxman, William Burroughs, Bernard Jackson, Louise Morehouse, Elyse Byler a...
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Plaintiffs and appellants Charles L. Shaha and wife brought this action against defendants and respondents Ben E. Frey, Frey Industries et al. for claimed negligence resulting in property damage to plaintiffs. By way of defense, in the answer, defendants claim no negligence on their part, contributory negligence on the part of plaintiffs, and that the fire resulting in the damage claimed was unavo...
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A trial without a jury resulted in the conviction of defendant of the crime of burglary, second degree. As a condition of a five-year probation order defend*516ant was required to serve 30 days in jail, pay a fine of $600, and make restitution for actual damage done to the premises which defendant was found to have entered. The sole ‘question involved is the sufficiency of the evidence to support ...
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Plaintiffs appeal from the judgment which determines that they have no title to or interest in Lot 67 of Granada Tract. The court found that on December 21, 1951, respondents Jones became the owners of such lot; that appellants have no title or right thereto and concluded that Bueford and Floreda J ones, cross-complainants, are owners in fee simple, and entitled to the possession of Lot 67 subject...
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This is an appeal from the judgment entered upon a jury’s verdict in favor of respondent in a personal injury action in the nature of malpractice of a hospital in the care of a patient. It is admitted that appellant suffered a second degree burn on her left leg while she was under treatment at respondent’s private hospital, which she entered at the request of her personal physician because...
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Appellant Sevenman, as administrator of the estate of "Flora M. Sevenman, deceased, brought this action against Sugar Creek Pine Company, a corporation, respondent herein. The complaint simply alleged that in his capacity as administrator plaintiff Avas entitled to the possession of a described tract of land, and that the defendants claimed some right or interest therein Avhen in fact they had ...
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The plaintiff was engaged in the manufacture and sale of paints in Riverside County. The defendant owned a ranch on which he was raising horses. In dividing the land into paddocks and other enclosures he built about five miles of fencing. The fences were made of wood, except for a small piece of metal fence. Beginning in July, 1948, the plaintiff furnished paint which was applied to this fencing. ...
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On February 18, 1954, plaintiff and appellant filed an action for divorce against her defendant and respondent husband, alleging cruelty. On the same day, upon plaintiff’s affidavit and the usual questionnaire form adopted *547 by the court, and the pleadings, she obtained an order to show cause on February 26, why defendant should not pay plaintiff’s attorney’s fees, court costs, and alimony p...
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The first cause of action of the corn-plaint herein alleges that on November 30, 1952, defendant requested plaintiff to accompany him on a trip to hunt quail in Ventura County, in consideration of plaintiff’s hunting experience and knowledge of the location of game in said locality. Just before 4 o’clock in the afternoon of that day, defendant was driving his truck southerly on Highway 101...
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This is an appeal by plaintiff from a summary judgment in favor of the defendant Union Oil Company. Plaintiff seeks to recover damages for the alleged violation by the defendant of a collective bargaining agreement between the company and Local No. 128, Oil Workers International Union, C.I.O. Plaintiff claims that the company breached certain agreements settling a strike that began in Sept...
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This is an appeal by defendant, Alfred Salinas, from a judgment of conviction of a violation of section 11500 of the Health and Safety Code, and from the order denying his motion for a new trial. The record discloses that the defendant wás apprehended while driving an automobile in the city' of- Sacramento and was then taken to a house in Broderick, Yolo County. While one inspector remained wit...
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This is an appeal from a judgment entered on October 1, 1952, denying a peremptory writ of mandate to compel the dismissal of an action pending in justice court against petitioner, William Muller. The record on appeal is in the form of an amended engrossed statement. The dismissal was sought on the ground that the prosecution had not afforded petitioner a speedy trial inasmuch as the prosecution ...
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This is an appeal from the judgments and orders of dismissal of the action following the failure to file an amended complaint after an order sustaining the demurrer. *574The appeal relates to two judgments and orders, one dated April 5, 1954, wherein Judge James G. Whyte granted a motion of three of the defendants to dismiss the action together with judgment of $116.50 for costs. The other, dated ...
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Tresa A. Bolter brought suit against Alson Clark to recover damages for injuries sustained while riding in defendant’s automobile. She alleged in one cause of action *576that she was a passenger and was injured through defendant’s negligence; in a second cause of action that she was a passenger and suffered property damage consisting of expenses incurred and wages lost by reason of her injuries; a...
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This is an action for damages for personal injuries under the Jones Act (46 U.S.C.A. § 688) which makes available such action at law based on negligence to a seaman injured in the course of his employment. The defendant appeals from a judgment on a verdict of $6,000 for plaintiff. The complaint alleged in substance that plaintiff on February 28, 1951, when in the course of his employment h...
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Defendants appeal from a judgment for damages entered against them after jury verdict in the sum of $18,000 for personal injuries sustained by plaintiff Mary Keller when she was allegedly struck by an interurban train of defendant Key System Transit Lines in the city of Berkeley near the point where defendants’ tracks cross Ashby Avenue. On the date of the alleged accident, March 15, 1952,...
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Appeal from a decree determining who are entitled to distribution, of an estate under a will. (Prob. Code, §§ 1080-1082.) On May 3, 1951, Cecil J. Eggleston and his wife Kay made a homicide and suicide pact by which they agreed that he would first take her life and immediately thereafter take his own. The same day Cecil executed two instruments which were admitted to probate as his hologra...
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Respondents Burdette G. Risley, Violet R. Risley and Jay D. Humbird each suffered personal injuries when a portion of a load of lumber fell from a logging truck onto or in front of the automobile in which they were riding’ when the vehicles, approaching from opposite directions, were passing each other on a public highway. Each of the said respondents brought a separate action. Burdette and Vio...
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The plaintiffs appeal from a judgment holding that a grant deed was not, in fact, an equitable mortgage. The plaintiffs owned an apartment house in Long Beach which was encumbered by a first trust deed of $54,000, and a second trust deed in favor of the defendant Andrews for $22,000. On August 8, 1950, the plaintiffs deeded that property to Andrews. On the same day Andrews traded that property,...
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Fong was convicted on two counts, one for violating section 11163 of the Health and Safety Code, unlawfully prescribing a narcotic, the other for violating section 11500 of the code, unlawful sale of a narcotic. The sole point upon this appeal is the claim that evidence of similar offenses was erroneously admitted as a part of the People’s case in chief. This evidence was received for the ...
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By the instant proceeding plaintiff sought a peremptory writ of mandate commanding defendants to reinstate him to the position of sergeant of the Los Angeles Police Department and to compensate him for his services as such. The petition alleges the employment of plaintiff as a police officer from May 25, 1942, until December 14, 1949, when he was discharged by the chief of police. In a verifi...
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The district attorney filed an information accusing Luis J. Leon and Jimmy Carroll of a violation of Penal Code, section 187, in that on August 8, 1953, they murdered *677 Vincent M. Ortiz. The case was tried before a jury which returned a verdict finding both defendants guilty of murder in the first degree, and fixed the penalty at life imprisonment. Carroll appeals from the judgment of convic...
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This appeal is from parts of an order entitled “Order Approving Report and Account of Receiver and Amendment and Supplement thereto, Ordering Defendant to Deliver Property and Pay Money to Receiver, and Instructing Receiver.’’ This order was signed by Judge DeWolf on June 29, 1953, and modified a previous order signed by him in the same action on June 30, 1950. It is contended by appellant...
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Appellant was charged in an information with three counts of issuing bank checks without sufficient funds with intent to defraud, in violation of section 476a of the Penal Code. Count one alleged the issuance of a $50 check to an employee of the U. S. Grant Hotel in San Diego. Counts two and three each alleged the issuance of $25 checks to an employee of the San Diego Hotel. The check described i...
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An information had been filed against the above named defendant and undertaking of bail in the amount of $10,000 was filed by appellant National Automobile and Casualty Insurance Company, a corporation. When the cause was called for trial on January 15, 1954, the defendant failed to appear. His counsel moved for a continuance and in support of such motion presented an affidavit from defendant’s...
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Action by real estate broker to recover commission allegedly due him from defendants. Judgment was for plaintiff in the sum of $15,429.37 ($13,500 plus interest). Defendants appeal from the judgment. Defendants, husband and wife, owned certain real property in Los Angeles County known as the Shamel Ranch. On April 2, 1950, defendant Jennings B. Shamel signed, and de*701livered to plaintiff, a list...
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On February 19, 1932, an information was filed in the Superior Court of Orange County charging appellant with the crime of grand theft, alleged to have been committed by him on or about December 18, 1929. A jury found appellant guilty as charged and he was committed to the state prison for the term prescribed by law. No motion for new trial was made and no appeal was taken from the judgment. Appe...
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The present appeal is concerned primarily with the nature of certain contributions made towards the purchase, reconversion and operation of a small vessel known *716as the “M. V. Star of Honduras. ’ ’ It is contended by plaintiff that these contributions were by way of loans, for services rendered, etc., and were not intended as partnership contributions. During the early part of 1948, Henry Renea...
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Appeal from order authorizing sale of corporate stock and directing a compromise of the estate’s claim in the sum of $36,000 against California Studios, Inc., for $34,000. At the time of his decease, September 30, 1952, Harry Sherman owned 1,550 of the outstanding 1,750 shares of the California Studios, Inc. The remaining 200 shares were owned by Attorney Babson, counsel for the executor. The corp...
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The question for decision is whether a teacher in the public schools has a constitutional right to her position after invoking her eoncededly constitutional privilege of refusing to answer the question: “Are you a member of the Communist Party of Los Angeles County?”—no other misconduct having; been charged against her. Appellant, Frances Robman Eisenberg, entered the public school system in 19...
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Appeal from a judgment of dismissal after general demurrer to the complaint had been sustained and plaintiff had declined to amend. The complaint alleged that on September 8, 1953, defendants as tenants in common owned an undivided three-fourths interest in 800 acres of land in Los Angeles County; that defendants then contracted in writing with Messrs. Austin and Ream, real estate brokers, to s...
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In this action for declaratory relief, judgment was in favor of plaintiffs upon the complaint and cross-complaint. Defendants and cross-complainants appeal from the judgment. Plaintiffs were lessees under two oil leases. One of the leases, known as the Portals-Grayson lease or the lease south of the tracks (railroad), will be referred to as lease No. 1. The other lease, known as the Portal...
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Plaintiffs appeal from a judgment in favor of defendant Ideal Heating Corporation, referred to as defendant, entered on a directed verdict. The action is for property damage resulting from a fire alleged to have been caused by the negligence of Anthony Lupella, an employee of defendant. The facts are not in dispute. On April 12, 1946, plaintiffs owned a one-story double building in Los Angeles. On...
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In this action against the executrix of the will of Candida Lombardi upon a claim for $2,800, the trial court found that “although the plaintiff did advance the sum of $2,800.00 to his father, Sebastian Lombardi, to pay off an obligation upon which his mother, Candida Lombardi, was jointly liable, the said decedent Candida Lombardi never agreed to repay said loan out of her own funds and property ...
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Question: Does the evidence support the finding that Candida Lombardi (mother of the plaintiffs) owned the real property in suit at the time of her death and that neither Candida nor the defendants (the executrix of her will and the devisees of the property) at any time held the property in trust for the plaintiffs? Plaintiffs Stephen and August Lombardi conveyed this property to Candida in Aug...
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This is an appeal by Daniel W. Hone, attorney for executors of the estate of Abraham L. Gump, deceased, from decree of settlement of fourth and final account, and of supplemental account of executors, allowing *784 compensation for extraordinary services, and of final distribution, of the Superior Court in and for the City and County of San Francisco, and particularly from that por...
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Plaintiffs sued to cancel a deed to described real property within the corporate limits of the defendant city. The complaint alleged, and the evidence supported the allegation, that plaintiff Schmidt had an oral agreement with the mayor of the city in which Schmidt executed and delivered to the mayor a deed to the disputed property with the oral agreement between them that the property would be us...
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Della G. Gerbracht and Rolf L. Meuer, substituted as plaintiffs for Methodist Leaders Lodge, sued Kathryn Obersmith and others to quiet title'to two city lots. Defendant Obersmith filed a cross-complaint against plaintiffs and others to quiet title. Among other defenses to the cross-complaint of Obersmith, the answers of the cross-defendants alleged title by prescription. Obersmith, by answer and ...
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In this action for divorce the court made an order on October 18, 1951, requiring defendant to pay certain support money, medical and other expenses and attorney’s fees for the plaintiff’s benefit. Thereafter execution was issued to enforce payment of certain accumulated funds. Twelve hundred seventy-five dollars had accrued as support money. Defendant does not question the issuance of the execut...
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Plaintiff brought this action to recover for a permanent injury to his hand, incurred when he tripped over a steel plate on an unlighted portion of defendant’s dock while returning home from his employment as a relief engineer aboard a ship berthed at the dock. The jury awarded him damages in the sum of $16,000, which was reduced to $14,000 by the trial judge, with the consent of plaintiff, as a ...
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This is an appeal from an interlocutory decree of divorce, granted to plaintiff on the grounds of extreme cruelty, wherein the community property was awarded to plaintiff. Facts: Plaintiff and defendant were married on January 15, 1921, and lived together until September 11, 1940. On September 20, 1940, plaintiff filed a complaint against defendant for divorce, to which defendant filed an ans...
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Modesto Valdez, referred to as plaintiff, brought this action for damages for the alleged failure of defendant Taylor Automobile Company, referred to as defendant, to obtain public liability and property damage insurance on the sale by the latter of a used automobile to plaintiff. The complaint, in several counts, alleged: breach of an oral contract to procure insurance; negligent failure to pr...
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Defendant Macias and Richard William Wood were charged with robbery. Macias admitted an allegation in the information that he had been convicted of a felony. Upon the motion of defendant Wood separate trials were ordered. In a jury trial, Macias was found guilty of robbery in the first degree. He appeals from the judgment. Appellant contends that the evidence was insufficient to support the judgme...
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Braye and Saccone, who both had bought lots of real property from appellants, brought separate damage actions against them after a deed of trust signed by appellants in favor of respondent Henshaw had been foreclosed and the sale had included the lots the plaintiffs had purchased. In both actions appellants filed a cross-complaint against the respondents in which they alleged among other things t...
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This is an appeal from an order denying petition of appellants for decree determining interest in estate. Petitioners and appellants herein, Marjorie Mallarino and Lois Graham, are nieces of decedent, George A. Kearns. Respondent, Emma Traung Hammersmith, the fiancée of decedent, was by the will bequeathed all of testator’s real and personal property and was also named executrix of his estate. Cla...
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This is a useless appeal from a purely factual decision for plaintiff on conflicting evidence. The action was on an agreement in writing to pay $1,500. The agreement was received in evidence and reads: “Re: Installation of Street Improvements Belvue Heights Subd’n. Belmont “With further reference to the above matter and particularly in connection with certain proposed modifications of the original...
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129 Cal.App.2d 844 (1954) 278 P.2d 63 ROLLEY, INC., Appellant, v. MERLE NORMAN COSMETICS, INC. (a Corporation) et al., Respondents. Docket No. 16101. Court of Appeals of California, First District, Division Two. December 29, 1954. Joseph A. Brown and Harry Gottesfeld for Appellant. Littler, Lauritzen & Mendelson, John B. Lauritzen and Warren H. Saltzman for Respondents. *845 DOOLING, J. This ...
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Four separate appeals have been filed in this proceeding involving a complaint and three cross-complaints, all arising from questions revolving about insurance coverage of a truck and van involved in a collision near Phoenix, Arizona, on July 13, 1950. *856 Plaintiff Robert Chase purchased under a conditional sales contract from L. G. Maulhardt Equipment Company (hereinafter calle...
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Plaintiffs appeal on a settled statement from a judgment for defendants. The action is one for damages for breach of contract and for neglectful and unskillful work in laying a concrete slab. According to plaintiffs, as set forth in their brief, “The only question involved is whether it was proper for the trial court to admit evidence, oral and written, of prior negotiations to contradict the term...
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Petition for writ of review of an award given one Mrs. Genevieve Lonergan. Question Presented Was Mrs. Lonergan, a special duty nurse, the employee of the county of Alameda (Highland Hospital) or an independent contractor ? Evidence The commission found that Mrs. Lonergan was the employee of the Highland Hospital, which is owned by Alameda County. The Benjamin Warren Black Memorial Fund r...
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This is an appeal by the plaintiff from a judgment of dismissal entered after plaintiff’s failure to amend her complaint within the time allowed by the court upon the sustaining of defendants’ demurrer. Appellant alleged that she is the executrix of the last will of Roland C. Greeninger, deceased; that the decedent conveyed certain real property to defendants by two grant deeds annexed to the comp...
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This is an action for declaratory relief brought by plaintiffs Emery Eaton, doing business as Toy on Creamery, and Consumers’ Cooperative Society of Palo Alto, Inc., a corporation (hereinafter called “Co-op”), against the State Director of Agriculture as defendant (hereinafter sometimes called the “Director”) wherein plaintiffs seek to have the validity of a certain contract between Eaton and Co-...
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Plaintiff sued on an alleged oral contract for the purchase and sale of a one-quarter interest in defendant’s business. Defendant had judgment. Two questions are involved: (1) When a contract for the sale of property is wholly oral are the provisions of sections 1624a and 1724 of the Civil Code, and of section 1973a of the Code of Civil Procedure, requiring a written note “signed by the party t...
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From a judgment of guilty of grand theft after trial before a jury, defendant appeals. There is also an appeal from the order denying his motion for a new trial, and a purported appeal from the order overruling his demurrer to the information. Facts: 1 Jeanne Greenlin was working as a cocktail waitress at the Crow’s Nest in Long Beach in January, 1953. . She was the owner of a 1949 Huds...
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This is an action to determine the ownership of a one-third of 1 per cent royalty interest in certain oil land in Kern County. Plaintiff claims 50 per cent of said interest by reason of a partnership or joint venture agreement entered into with defendant in the latter part of 1943. Defendant denied that there was a joint venture between the parties and denied that plaintiff had an interest in s...
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The People appeal from an order setting aside an information charging the defendant with the crime of burglary alleged to have been committed on September 23, 1953, on the ground that he was not legally committed by the magistrate in that counsel was not appointed to represent him at the preliminary examination. The appeal is based on an agreed statement of facts. Defendant was duly arraigned i...
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This appeal is by plaintiff Louis Castagnoli from an order setting aside the default of defendant Lorraine Castagnoli and the judgment entered thereon. The other defendant, John Castagnoli, is not a *40 party to the appeal. The only question for decision is whether the trial court had the power to set aside the default after six months from the time respondent’s default was entered...
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From a judgment in favor of defendants after trial before the court without a jury in an action to recover damages for conversion and injury to property, plaintiff appeals. The evidence being viewed in the light most favorable to defendants (respondents) discloses that on or about August 2, 1948, plaintiff entered into an agreement with Jones Lumber and Mill Company (hereinafter referred t...
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Plaintiff as lessor and defendants as lessees executed a written lease of a garage and service station for a term of five years from March 1, 1949, at a rental of $300 per month for the first six months, $325 per month for the next three, $350 per month for the next three, and thereafter $375 per month, defendant paying the last month’s rent as a deposit. *48 In April, 1951, plaintiff filed h...
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These are appeals from judgments ordering issuance of peremptory writs of mandate in proceedings to review final administrative decisions of the California Unemployment Insurance Appeals Board, herein further called the Board, denying the petitions of Robert Shand for payment of unemployment benefits and of Janice Melver for payment of disability benefits. Both petitioners, employees of the Oakla...
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This is an action for damages for the alleged breach by sellers of an oral agreement to buy and sell the total crop of onions being harvested on a certain ranch for $1.10 per bag, of which crop 6,000 bags were delivered and paid, but delivery of the larger balance was refused notwithstanding several demands. Damages are based on the loss of profits which plaintiffs would have made by sale of th...
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This is an appeal from the order denying the defendant’s motion to vacate judgment, and to set aside the default. As recited in appellant’s brief, “On or about July 18, 1952, the adult married son of appellant was operating an automobile on a certain boulevard in the City of Maywood, State of California, and while so operating an automobile became involved in an accident in which the respondent...
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This is an appeal from the judgment and from the order denying a motion for a new trial. The information alleged that defendant offered and gave a “bribe to S. A. Nelson, who was then and there an executive officer of the State of California, to wit, a police officer of the City of Los Angeles, County of Los Angeles, State of California, with the intent, ” etc. The offense involved the offer by de...
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Defendant appeals from a judgment awarding damages for breach of contract and reimbursing plaintiff for expenditures incident to a suspension of work ordered by defendant. Plaintiff, a licensed general contractor, entered into a contract with the city of Los Angeles on April 12, 1951, whereby he undertook “to furnish all equipment, material and labor necessary for the construction of, and ...
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Appeal by defendant from an order granting plaintiff’s motion for a new trial. The action was for damages for personal injuries allegedly resulting from negligence of defendant DeLange while he was operating a truck owned by his employer, the defendant corporation. Plaintiff dismissed the action as to defendant DeLange. Trial was by jury, and the verdict was for plaintiff for $12,500. Plaintiff m...
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Appellants, husband and wife, brought this action to recover damages for personal injuries received by them in an automobile accident and also, by their fourth cause of action, to recover damages for the death of an unborn child, resulting from the same accident. In said cause of action it was alleged that plaintiffs “were husband and wife, the natural parents and heirs of unnamed Baby Norman, ...
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Convicted of robbery while armed with a deadly weapon, defendant has appealed from the judgment and from the order denying his motion for new trial. He claims insufficiency of the evidence, errors of law in the admission and exclusion of evidence, misdirection of the jury in matters of law, prejudicial interrogation of defendant by the trial judge, and prejudicial misconduct on the part of the ...
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Plaintiff, Lois Elizabeth Barry, appeals from an order denying her motion to vacate an interlocutory judgment and decree of divorce. The motion was made pursuant to section 473, Code of Civil Procedure. Lois Elizabeth Barry and William J. Barry were married in 1934. Both became insurance brokers and developed a business, which according to Mrs. Barry, amounted to approximately $8,500 a yea...
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This is an appeal by defendant Glens Falls Indemnity Company, from a judgment for $50,513.20 plus interest upon a jury verdict in favor of plaintiffs. A judgment had been previously recovered in the Superior Court of Solano County by plaintiffs, Nettie Faye Crooks, the widow of Earl Crooks individually and as guardian ad litem of her two minor children, against the estate of Carol Wayne Cr...
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Appeal by the People from an order granting a motion of defendant to set aside the information charging him with two counts of grand theft and four counts of forgery, on the ground he had been committed without reasonable or probable cause. (Pen. Code, § 995.) In the information, defendant was accused of feloniously taking $2,500 and $5,000 in money from Michael Epstein-and Robert Saltzman...
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This is an appeal from an order denying defendant’s motion to set aside his default and judgment rendered thereon in a separate maintenance action. The motion was made upon the ground that said default was taken against said defendant through his mistake, inadvertence, surprise and excusable neglect. On July 22, 1952, plaintiff filed a separate maintenance action against defendant and a co...
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This appeal is taken by defendants from the judgment entered upon a verdict in favor of plaintiffs. Appellants, husband and wife, and respondents, also husband and wife, were partners in the operation of two lunchroom establishments, one in Berkeley and the other in San Francisco. In this action respondents seek damages from appellants on account of alleged fraud on the part of appellants in conne...
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This action involves a dispute over water rights. Judgment was for defendants, the respondents here. Appellants are riparian land owners along Stevens Creek in Santa Clara County. This stream rises in the Santa Cruz Mountains and flows in a general northerly direction across Santa Clara Valley and empties into San Francisco Bay. Bespondents divert water from Stevens Creek at a point above the...
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This is an appeal by the Contractors’ State License Board, the Registrar of Contractors of said board, et al., from a judgment of the Superior Court of Contra Costa County issuing a writ of mandate ordering said board to set aside its decision of January 21,1952, revoking certain licenses of petitioner David G. Sautter, the respondent herein and ordering that these licenses be restored to him. ...
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Petitioners, Proctor and Gamble Manufacturing Company seek an alternative writ of prohibition directed to the Superior Court of Marin County restraining *159 respondent from enforcing an order compelling defendants to furnish certain information from their records, and commanding respondent court to vacate and set aside said order or show cause before this court as to why it has no...
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Motion to dismiss appeal and a petition to be relieved of default for failure to file transcript in time. Notice of appeal was filed by appellants in this action on April 17, 1953, request for reporter’s and clerk’s transcript was filed April 21, 1953, a copy of which latter notice was transmitted by the clerk of the court to the reporter on April 21, 1953, as required by Rules on Appeal, rule ...
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This is a petition for a writ of prohibition to restrain respondent court from trying petitioner on an information charging him with violating section 496 of the Penal Code (withholding or concealing stolen property). *166 Respondent has not filed a demurrer or answer to the petition or alternative writ of prohibition. * Therefore the facts as stated in the petition will be deemed admitted....
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After trial before the court without a jury, defendant was found guilty as charged in count I of the information of violating section 337a, subdivision 1, of the *170Penal Code (bookmaking and pool selling). He was found not guilty as to count II of the same information which charged him with violating Penal Code, section 337a, subdivision 2. Defendant appeals from the judgment and also the order ...
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Defendant was convicted of four counts of receiving stolen property. He appeals from the judgment and from the order denying his motion for a new trial. During the night of September 19, 1952, a machine shop or service department of an automobile company in Fullerton was burglarized and certain machinery and tools were stolen therefrom. During the night of October 14, 1952, a machine shop of ...
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This is an appeal by defendant and cross-complainant John Speka from a judgment in favor of plaintiff and cross-defendant Bob Speka in a suit for dissolution of a partnership, an accounting and contribution. Judg *183 ment was in favor of plaintiff Bob Speka for a contribution in the amount of $6,083.30. The suit was filed on November 7, 1949. The court began hearing of the matter on January 22...
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This is an action for damages for personal injuries sustained in an automobile collision. Defendant answered and filed a cross-complaint for damages to his auto *192 mobile. A jury trial resulted in a verdict against the plaintiffs on their complaint and against the defendant on his cross-complaint. Judgment was entered in accordance with the verdict of the jury and plaintiffs ther...
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This is an action to quiet title, cancel certain promissory notes and to restrain defendants from selling the real property described in the complaint under the terms of a deed of trust given to secure said notes. *197 It is alleged in the complaint that on February 6, 1948, plaintiff and her husband, L. E. Strain, executed two promissory notes, payable to defendants Glenn and Phyllis Magee, ...
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Plaintiff, Mrs. Roberts, was a licensed automobile driver. Defendant, Mrs. Craig, possessed a limited instruction permit under section 253 of the Vehicle Code which entitled her to drive only when accompanied by and under the supervision of a licensed driver. Mrs. Roberts accompanied Mrs. Craig on a trip. Mrs. Craig drove the automobile. She so negligently operated the ear that an acci *204 den...
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John and Jeanette Tipton were charged and convicted of four separate violations of that portion of section 11714 of the Health and Safety Code which declares that any person “who unlawfully sells, furnishes, administers, gives, or offers . . . any narcotic to a minor, is guilty of a felony punishable by imprisonment in the state prison for not less than five years ...” In addition, John Tipton wa...
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Decedent left a will, which she wrote, that reads as follows: “I give Mrs. G. E. Nissen my Rosewood Settee when I past on. Also my personal things.” The testatrix left an estate in excess of $25,000 consisting of cash in bank, stocks and bonds, real property, promissory notes secured by trust deeds, and two metal pins. Mrs. Nissen filed a petition to obtain a construction of the will. The tri...
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Appeal by plaintiff from a judgment of dismissal entered on the sustaining of an objection by defendants to the introduction of any evidence. The cause went to trial on the third amended complaint and the answers thereto. The objection was sustained on the ground no count of the third amended complaint states facts sufficient to constitute a cause of action. The third amended complaint con...
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By this action appellant Wagner sought to recover the possession of an automobile from respondent Trout. The pleadings were in the usual form and both appellant Wagner, as plaintiff below, and respondent Trout, as defendant below, asked that title to the vehicle in question be quieted. The trial court gave judgment in favor of respondent Trout and Wagner appeals. The following facts appear...
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This is an appeal from an order granting an injunction pendente lite restraining appellants (defendants below) from committing waste upon or cutting or removing timber or logs from certain real property located on the slopes of Mt. Shasta, and further restraining them from selling or sawing logs already removed and from selling lumber already produced therefrom. The record shows that Willi...
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On March 28,1951, respondent was granted an interlocutory decree of divorce from appellant. By the terms of the decree respondent was awarded the dwelling and household furnishings of the parties. Appellant was awarded the sum of $2,000 in lieu of his community interest in those properties and also was awarded the family automobile. A bank account of $2,200 was divided equally between the parties....
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Archibald Noble was convicted of grand theft (stealing an automobile) with two prior felony convictions for which he served terms of imprisonment. When the ease came to trial a jury was waived and the issue submitted to the judge for decision on the evidence taken at the preliminary examination. Defendant did not testify in his own behalf and no witnesses were called in his defense. The automobile...
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Plaintiffs have appealed from a judgment entered following the order of the trial court sustaining defendants’ demurrer without leave to amend. Defendant corporation was organized under the Constitution and laws of the State of Nevada. That state by its Constitution provides that “Corporations may be formed under general laws, and all such laws may, from time to time, be altered or repealed.” T...
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This is an appeal on the judgment roll only. Although the case started out as an action of Gray against Sutherland for breach of a contract to purchase from Gray all the stock of Gray Manufacturing Company (further called the company), the appeal is mainly by Gray and Sutherland from a judgment for Eckstein, the intervener, trustee in bankruptcy of said company (further called the trustee), who...
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We deem the statement of facts as set forth in appellant’s opening brief to be substantially correct so far as it goes, and we adopt it as such here. Omitting the headings and references to the transcripts, it is as follows: " This appeal is from an Order Discharging Order to Show Cause entered by the Superior Court in and for the County of San Mateo on December 10, 1952. This appeal is ta...
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This is an appeal by the petitioners, Antone Albert, Louis A. Bozzi, Jr., and Henry R. Gall, from the judgment of the superior court whereby a petition for a writ of mandate was denied and wherein the sole question presented to the court involved the determination of the propriety of the action of the city clerk, defendant (respondent), in rejecting the three nomination papers proposing the three...
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This is an action to recover royalties under a 17-year license agreement covering certain camera devices and methods. Plaintiff Del Biccio is an inventor and met defendant Bogart Bogers, the prime figure in defendant partnership and corporation, in 1937, at a motion picture studio in Hollywood. Del Biccio had been experimenting with a camera especially adapted to photographing moving objec...
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Plaintiff appeals from a judgment for defendants entered after demurrers to plaintiff’s complaint were sustained without leave to amend. Plaintiff is the daughter, and residuary devisee under the will, of Melba Meeker, deceased. As is set forth in the complaint, the decedent by her will, after making certain specific bequests, directed that her 18-acre grapefruit grove be disposed of as fo...
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The appellant seeks to recover damages for property alleged to have been destroyed or *327 damaged by fire which spread from one set by the agents of the city while they were burning dry grass near the city hall for the purposes of fire suppression and weed control. The complaint attempts to state two causes of action. The first was based upon negligence in permitting the fire to escape. The ...
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This is an appeal from a judgment entered on a jury’s unanimous verdict awarding respondent damages in the amount of $2,300 for injuries inflicted by an assault and battery committed upon her by the appellants, who are husband and wife. The appellant wife admitted that she struck the respondent several times in the face in the course of an affray which *331 occurred in a small roadside café a...
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Two actions against the defendant county of Santa Clara were consolidated for trial. One action is by the minors Gerald and Jack Alderson through their guardian ad litem Phyllis Alderson, their mother, for injuries received by them, and by Phyllis Alderson for hospital fees, etc., paid by her for their care and treatment. The other action is by Dorothy Alderson against the county for...
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Plaintiffs Sanford P. Lewis, a veteran, and Marie R. Lewis, his wife, brought this action against Roy Wainseott and Leota Wainseott to cancel a promissory note for $2,263.22 and a deed of trust securing the note, which plaintiffs had given the Wainseotts in part payment of the purchase price of certain real property. Plaintiffs claim that their contract to pay the amount of this note is il...
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This is an appeal by plaintiff and a cross-appeal by defendant from a judgment awarding attorney’s fees to plaintiff. On September 13, 1940, defendant’s father and plaintiff entered into a written lease for the Star Theatre, to begin on January 1, 1941. Said lease contained the following provision relating to attorney’s fees: “If either party shall commence any legal proceedings again...
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When plaintiff was granted an interlocutory decree of divorce in September, 1951, the parties were given joint custody of their infant son, who was then 17 months old. They agreed, however, that a Mrs. Stevenson, who had been caring for the child since January because of the mother’s ill health due to a cerebral hemorrhage resulting from an aneurysm of the brain, should continue to have his physic...
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By separate leases dated July 17, 1947, plaintiffs, doing business as “Black’s” food stores, leased to defendant, for a fur business, the third floor of their building for a 20-year period at $200 per month, payments to begin September 1, 1947, and a space 17 feet by 9 feet by 6 feet on the mezzanine floor of that same building, together with window display space for the same period at $50 per mon...
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The appellant, one Bilbrey, one Parker, and a man using the name of Alvin Shaw, were jointly charged with conspiring to violate section 67 of the Penal Code, it being charged that they entered into a conspiracy to offer a bribe to the sheriff of Riverside County with intent to influence him to permit them to unlawfully conduct a gambling establishment. As an overt act it was charged that on Janua...
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The plaintiff, Edwin W. Pauley, as lessee of an oil and gas lease executed by the decedent Edward P. Shoemaker to one C. C. Potter and assigned by Potter to Pauley, filed this action in interpleader and for declaratory relief in reference to the disposition of royalties accruing under said lease and held by plaintiff. By order of court, accrued and accruing royalties were deposited with the clerk...
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This is an appeal from the judgment. The action was for damages. The complaint alleges that plaintiff was injured while on a streetcar operated by defendant and that the accident was the result of the negligence of the motorman. As recited in appellant’s brief, “The motorman brought his car to a halt with a jerk at the intersection ; the doors flew open; some of the departing passengers alighted; ...
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This is an appeal from the judgment. Defendant was charged with the violation of section 337a, subdivision 2, of the Penal Code which relates to “bookmaking.” A jury was waived and the issue presented on the transcript of the preliminary examination. Defendant was adjudged guilty and appeals from the judgment. As recited in appellant’s brief, “On January 11, 1951 at about 11:30 in the morning, thr...
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Plaintiffs, who are 15 months and 26 months old, brought this action by their guardian ad litem to recover damages for personal injuries sustained in a collision between a Ford car in which they were riding and a truck. The Ford belonged to the defendant but was being driven with his consent by Mrs. Vetterick, who was killed in the accident. The mother of plaintiffs was also injured. The eviden...
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The defendant, Ruben Quijada, was charged in an amended information with the crime of robbery, with a prior conviction of burglary. He waived jury trial and was found guilty of robbery in the first degree. The court also found a prior conviction of burglary. Prom the judgment, and from an order denying his motion for a new trial, defendant brings this appeal. The argument of the defendant is di...
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The question posed for decision is whether it is usurious where an agreement to loan $5,000 to a construction company and to receive $10,000 in return in any event “on or before one year from the date hereof” where the money is to be used in building houses on tracts specified by the company or on “such other tracts as might be selected by” the company, the money to be secured by irrevocable assi...
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Defendants demand reversal of a judgment for damages for breach of a contract of joint venture. They have specified their assignments of error, each of which shall in its turn be answered. The amended complaint alleges two grounds for recovery, to wit, (1) losses sustained as a “result of the sale of the properties” and (2) “damages caused by the refusal of appellants to pay the money required ...
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Alice B. Harvey, widow of Frank A. Harvey, deceased, joined by her son, Frank A., Jr., sued the surviving brothers of her husband and their corporation for an accounting and for moneys allegedly misappropriated. Findings against all the claims alleged in the complaint having been made, judgment was entered for defendants. Prior to December 22, 1946, Frank A. Harvey, Jesse E. Harvey and Jam...
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The question for decision is whether the facts in evidence equitably justify the enforcement of the restrictions against the maintenance of a sanitarium on the city lot of appellants. The Findings The court below made findings that defendants own Lot A in tract 9854; that plaintiffs own lots in the same tract, and that without contradiction plaintiffs occupy their property as a home. ...
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Defendants’ demurrer to plaintiffs’ third amended complaint was sustained with leave to amend within 20 days. Plaintiffs appeal from a judgment of dismissal entered after they failed to amend within that time. *460 Said complaint alleged: On December 4, 1941, defendants recorded, in the map records of Los Angeles County, a map of a subdivision known as Tract 12971. A map of said subdivision...
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Appeal by defendants from an adverse judgment in an action for damages for personal injuries. Plaintiff Lewis W. Rideau will be referred to as “plaintiff.” On January 8, 1952, about 11 a. m., plaintiff drove a small tow truck north on Main Street toward 23d Street in Los Angeles. The weather was clear and the street dry. Before reaching 23d Street he had driven for four or five blocks in t...
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In this action against Los Angeles Transit Lines and Rowland W. Wilson plaintiff appeals from a judgment of nonsuit in a nonjury trial. The question is whether there was legally sufficient evidence to support findings that either defendant was negligent and that plaintiff was not guilty of contributory negligence. We are satisfied that findings of liability of either defendant would have had no s...
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This is an appeal from a judgment holding that a timber contract between the parties had been rescinded and quieting title to the real property involved. The appellant is the K. D. Lumber Company, sued as and doing business under the name of Mercury Lumber Distributors. Appellant was the only party defendant to answer or appear at the trial. Appellant outlines its contentions on appea...
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The plaintiff, Louis Pete, Jr., appearing in propria persona, is administrator of the estate of his father. The defendant is the administratrix of the estate of John Henderson, a deceased attorney. This action was brought by plaintiff, in his representative capacity, against Henderson, prior to his death, for damages alleged to have been caused by the negligence of the attorney in failing to file...
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Defendant appeals from a judgment for $8,000 in favor of plaintiff. Questions Presented 1. Sufficiency of the evidence. 2. Correctness of instructions. Record Plaintiff was employed as a stewardess on board defendant’s S.S. Lurline, and was injured while performing her duty as such stewardess. Of the three ■ causes of action in the first amended complaint, the first is ...
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Plaintiff was originally incorporated in 1927 under the name of Imperial Mutual Life Insurance Company, as a mutual life and benefit association, pursuant to chapter IV, title 2, part 4, division 1, Civil Code. When the Insurance Code was enacted on September 18, 1935, plaintiff automatically continued business thereunder, in accordance with chapter 8, division 2, part 2 of said code (§§ 10640-10...
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William Fogel, Joseph W. Wolf and Jack Sherman, as partners, were engaged in the business of selling farm products as produce dealers or commission merchants from April 1, 1947, to July 16, 1949, when Fogel and Wolf withdrew from the firm. Sherman carried on the business until September 24,1949. Defendants received and sold products for which they failed to pay the shippers. Plaintiff had bonde...
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Plaintiff, a judgment creditor of Plumas Land Company, a Nevada corporation, commenced an action against defendants to set aside a deed of trust executed by said company, defendant Coleman Burke being named as beneficiary under said deed of trust. The complaint alleged that defendants were officers, directors and stockholders of said company and that said deed of trust “was placed upon said real ...
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United States Plywood Corporation, a corporation, respondent here, petitioned the superior court for confirmation of award of arbitrators and entry of judgment in conformity therewith. Hudson Lumber Company, a corporation, the respondent below and appellant here, petitioned for the denial of that petition and for an order vacating said award. Appellant appeals from the judgment confirming and r...
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The action is for damages suffered by Gilbert Quiroz who, at the time of the accident was 9 years 9 months old. While crossing the street the boy was struck by a truck driven by defendant Antonio S. Andrade. The trial judge decided, as the findings recite, “I “That the defendant Antonio Soto Andrade was negligent in the operation of the 1935 Dodge pick-up truck. *536 “II “That plainti...
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A jury awarded appellant damages in the amount of $2,500 for personal injuries sustained in an automobile accident. The trial court denied appellant’s motion for a new trial and he has appealed from the judgment entered upon the jury's verdict. The major portion of appellant’s opening brief is devoted to a discussion of the alleged error of the trial court in instructing the jury in respect to ...
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Plaintiff appeals “from the judgments and final orders . . . entered in the said superior court on the 14th day of November, 1952, in favor of the defendants in said action, and against said plaintiff. ...” The orders and judgments referred to appear to be an order changing the place of trial and transferring the cause, on defendant’s motion, from the Superior Court of Los Angeles County to the Su...
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Paul Loewen, the minor plaintiff in this ease, was 10 years of age when he suffered a terrible accident. Employees of the park department of the city of Burbank were removing eucalyptus trees on Keystone Street in that city. They followed a method or routine that had been used by the city for many years. First, branches would be cut off up the trunk of the tree, and it would be topped. Then the...
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Edith Verdi appeals from that portion of the judgment decreeing that she held title to certain real property in trust for the decedent, Victor C. Emden, his heirs and devisees. The property here in controversy is located on Hollister Avenue, in Santa Monica, and consists of a two-story residence on the front of the lot, with separate living accommodations on each floor, and two other resid...
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In an action to quiet title to real property plaintiffs prevailed, and the defendants have appealed from the judgment. The cause was tried before the court, sitting without a jury. Plaintiffs’ title was based upon a deed issued by the city treasurer of the city of Los Angeles after proceedings leading to a sale and the issuance of a certificate of sale upon an assessment levied upon the propert...
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Appellants brought this action to quiet their title to one-half the water flowing in a small tributary of the Russian River from the 1st of May to the 31st of October each year; to enjoin the diversion thereof by respondents, and for declaratory relief. The trial was limited to a determination of the issues raised by the respondents’ plea that the causes of action were barred by the statute of ...
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Antone Matoza sued his brother, Henry Matoza, and his nephew, Henry Matoza, Jr., for fraud and an accounting of partnership profits. Plaintiff obtained a judgment for $35,653.61 and the court made an order awarding $3,000 to the referee appointed in the matter and provided that this amount be taxable as costs. From this judgment and order defendants appeal. Antone Matoza does not speak, read or wr...
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There are presently two proceedings pending before this court growing out of the same controversy. One Civ. No. 15983 is a petition for a writ of prohibition aimed at arresting the enforcement of an order granting an injunction pendente lite. One Civ. No. 16125 is an appeal from the order granting the injunction. Prior to the perfecting of the appeal an alternative writ of prohibition and an or...
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Defendant, Clarence Meehan, was originally charged with two counts of burglary. The first charge related to an alleged theft at the O. K. Morton Used Car Company lot on October 6, 1952, and the second to an alleged theft at Joe’s Service Station in San Jose on October 11, 1952. The defendant changed his plea from not guilty to guilty on the second charge, whereupon, on motion of the district atto...
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By an interlocutory decree of divorce in August, 1947, the custody of the minor, Craig T. Smith, was awarded to his mother, the petitioner herein, with the provision that the father should have custody of the child during the summer vacation period of each year. As a result of a hearing on an order to show cause, the court, on August 26, 1953, modified the previous custody order and awarded Craig’...
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Plaintiffs brought this action to compel specific performance of an alleged agreement of defendant to sell 10 acres of land in Kern County. The only question presented is the sufficiency of the evidence to show a written agreement subject to specific performance. In July, 1951, defendant, who resided in Los Angeles, wrote a real estate agent, Barker, in Bakersfield, about the possible sale of h...
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Plaintiffs, husband and wife, commenced an action against defendant Henderson and several fictitious defendants, the complaint stating two causes of action: the first to quiet title to a house and lot; and the second to recover an overpayment alleged to have been made by plaintiffs to defendants. Defendant'Henderson filed an answer substantially admitting the allegations of plaintiffs’ first ca...
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This is an appeal by plaintiff from a judgment entered in favor of defendants following the order of the trial court sustaining defendants’ demurrer to plaintiff’s complaint without leave to amend. The complaint alleged that defendant corporation operates an industrial plant, and in the course thereof, owns and operates a mechanical lumber carrier vehicle; that the defendant Dunn, while in the ...
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The appeals herein are taken from two judgments which denied recovery of real property taxes paid under protest to the county by the irrigation district. The corporate boundaries of appellant district, until December 13, 1948, were the counties of Merced and Stanislaus. For the purpose of carrying on its activities in those counties, the district acquired property in respondent county, and it is a...
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This is an appeal by an unsuccessful bidder from an order confirming the sale of a parcel of real property belonging to the above entitled estate. *616 The facts, which are not in dispute, are substantially as follows: The parcel in question was sold at private sale to Lloyd Demrick for the sum of $6,200, and thereupon respondent reported the sale to the superior court for confirmation and th...
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After a judgment against Mm in the sum of $10,000 and the denials of motions for judgment notwithstanding the verdict and for new trial, defendant Eichardson (apparently the only defendant served with process) appeals. Questions Presented 1. Sufficiency of the evidence to show that the push-button traffic signal control device was defective or dangerous. 2. Was plaintiff’s injury...
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In the first cause of action of his amended complaint* * plaintiff alleged that on or about December 10, 1948, the defendant church, acting through its duly authorized agent, defendant Lawrence Elliott, “entered into a lease” with him whereby the church agreed that plaintiff could use a hall belonging to the church for a period of one year in return for plaintiff’s agreement to produce plays in sa...
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These cases involve a controversy over brokers’ commissions claimed upon a sale of real estate that never was made, and a contract of sale that never was entered into. Defendants, George L. Glendon and Perle E. Glendon, husband and wife, owned a 23-unit apartment house on San Vicente Boulevard in Santa Monica. They also owned the furniture in 21 of the units. They advertised the property for sa...
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This is an action for damages for “civil conspiracy and fraud in the sale of houses to certain veterans of World War II and their wives, and in the construction of *640 said houses. ’ ’ There are 78 plaintiffs, consisting of 38 couples and two single plaintiffs. The defendants are William C. Albany, a contractor; Howells and Vail, real estate agents; Southern Realty Company, original owner of a...
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Plaintiff brought this action to recover a real estate commission. The complaint alleges that on November 22, 1950, plaintiff, as a real estate agent, entered into the services of defendants, at their request, to negotiate for them the purchase of a 300 acre tract of land owned by one Doberstein, at $35,000 cash; that defendants were to pay plaintiff a commission in the sum of $1,750; that plaint...
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The defendant was charged with burglary in that on April 18, 1953, he entered a building in El Centro with intent to commit theft. In a second count, he was charged with another burglary in that on the same day he entered another building in that city with the same intent. The public defender was appointed to represent him. He pleaded guilty to both counts of the information. After finding that th...
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Defendant was charged with the offense of feloniously issuing a cheek upon a bank in favor of Lloyd Miller, without sufficient funds or credit with said bank to meet the check. At the preliminary hearing counsel was appointed to represent the defendant. After a preliminary examination defendant was held to answer and the same counsel then represented him in the superior court. On arraignment on...
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This is an action by a former wife against her former husband for payment of 40 per cent of his net income due her under the provisions of their Nevada final divorce decree of June 24, 1946, which approved and incorporated by reference a property settlement agreement of May 14, 1946. The percentage of income so claimed related to a period subsequent to the remarriage of the wife. The court sittin...
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In her action for damages for personal injuries resulting from the collision of her automobile with that of respondent on November 26, 1948, a verdict was returned for the sum of $19,000. Judgment having been entered thereon, the trial court granted respondent’s motion for a new trial limited to the issue of damages only, on the grounds of excessive damages and the insufficiency of the evidence to...
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The defendant has appealed from the judgment rendered against him upon conviction of three violations of section 11500 of the Health and Safety Code; one for furnishing marijuana and two for selling marijuana. He has also appealed from an order denying his motion for new trial. The trial was before the court without a jury. Defendant claims (1) the evidence is insufficient to support the judgme...
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This is an appeal by plaintiff from the final decree of divorce granted defendant, and from the subsequent order of the court denying plaintiff’s motion to vacate said decree. The record shows that on August 27, 1951, following a contested hearing, an interlocutory decree of divorce was entered in favor of plaintiff dissolving the marriage between plaintiff and defendant. Additionally the decre...
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Appellant was charged by information with the crime of grand theft, with six prior felony convictions. He refused to apply for appointment of counsel to defend him or to accept counsel appointed by the court, and acted as his own counsel at the trial. He pleaded “not guilty” to offense charged and admitted the prior felony convictions. Following a jury trial he was found guilty, and his motion fo...
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This is an appeal from a judgment based on the sustaining of demurrers without leave to amend to plaintiff’s second amended complaint. Plaintiff, Western Title Insurance and Guaranty Company, filed its original complaint in this action naming Delindo Bartolacelli as the sole defendant. That complaint stated but two causes of action. The first alleged that Bartolacelli, on December 1, 1951,...
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This is an appeal from a minute order granting a temporary injunction as prayed for in plaintiffs’ complaint. On November 19, 1952, respondent, Kenneth Griffin, in *698 dividually, and in his representative capacity as secretary-treasurer of Teamsters’ Automotive Workers’ Union, Local No. 576, on behalf of himself and all other members of said local, filed a complaint for specific performance...
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The present appeal is from a judgment awarding plaintiff $19,500, with interest, against the defendants Sapoznik, Ticktin, and Landfield, from which judgment the first two named defendants are appealing. The amended complaint contains five causes of action including rescission *705 for fraud aud for breach of contract, damages for money advanced under a void contract, declaratory relief, and fo...
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The present appeal involves only the power of the trial court to correct nunc pro tunc a judgment previously ordered in favor of the respondent. There is also an appeal from the judgment rendered (Civ. No. 19596), this day affirmed in a separate opinion (ante, p. 704). Upon conclusion of the trial and the entering of a minute order in respondent’s favor, respondent’s attorneys were ordered to prep...
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In an information filed by the District Attorney of Los Angeles County, Jack Whalen, Sam Solowitz, Roger Matthews and Julian Kranzberg were accused *715 in Count I of the offense of assault by means of force likely to produce great bodily injury, a felony (Pen. Code, § 245), and in the second count defendants were charged with the crime of attempted extortion (Pen. Code, § 524). At the time o...
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This action was instituted by plaintiff to establish his right to a right of way and easement over land owned by defendants Fred Kantel and Alice Kantel, and to recover damages for wrongful destruction of and interference with the alleged right of way by defendants. Facts: Plaintiff owns a 60-acre piece of land located about a mile from Pine Canyon Road, which is the nearest public highway in...
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Appellants have appealed from an order admitting the holographic will of Louis Bartolo to probate. There is also a purported appeal from the judgment sustaining without leave to amend a demurrer to the second amended contest of respondent. Facts: Appellants are the living brothers and sisters of decedent. Respondent is the divorced wife of decedent and the named beneficiary of an holographic ...
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From the sustaining without leave to amend of defendant Herman Hover’s demurrer to the first amended complaint, plaintiff appeals. Chronology i. January 30, 1953, plaintiff filed a complaint against Hotels El Rancho, Inc., and a number of John Does, alleging a cause of action for personal injuries resulting from the alleged negligence of defendant. The alleged negligent acts ...
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On March 16,1949, the plaintiffs and the defendants Schilling and Greenberg agreed to exchange real property. The property to be received by plaintiffs consisted of three apartment buildings at 312-318 East Palmer Street in Glendale. One of the conditions of the exchange, as shown by the escrow instructions, was that said defendants would place in escrow for delivery to plaintiffs “A termite clea...
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This is an action for an accounting of rents of a certain building over a period of approximately 15 years. Plaintiff Viola Shenson was awarded $9,007.25 against Joseph Shenson, cross-complainant Lillian Berman $3,589.52 and cross-complainant Lorraine Kaplan $3,349.52. Appeal was taken by defendant Joseph from the above judgment entered in favor of plaintiff and cross-complainants and from the ...
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This action arose out of a dispute as to the proper disposition of the proceeds of a *760 sale of real property following the exercise of a power of sale by a trustee under a deed of trust. The following facts appear to be fully established by the evidence: On August 29, 1947, Charles Tesseyman was the owner of certain real property located in Stockton, San Joaquin County...
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The respondents here (pla.int.iffs and petitioners in the court below) are members of Automotive Machinists Lodge No. 1305, and are employed by the city and county of San Francisco in the civil service position of automotive machinists. They obtained a judgment and decree of mandamus, declaratory relief, and for compensation against the appellants (defendants in the lower court) with respect to pa...
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This is an application for admission to bail pending an appeal from petitioner’s conviction on charges of forgery and grand theft. The two informations 'filed against petitioner were amended to charge that he had previously been convicted of the crimes of arson in 1932, larceny and larceny by bailee in 1941, and grand theft in 1949, and had served a term of imprisonment for each prior conviction. ...
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Plaintiffs are engaged in the business of packing, warehousing and transporting household furniture and other goods in San Diego County. They employ six drivers and packers and their business affects interstate commerce. It is alleged in the complaint, which is for damages and injunctive relief, that on or about June 23, 1953, the defendants presented to plaintiffs a certain purported agreement...
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Defendant was found guilty by a jury of the crime of statutory rape in violation of section 261, subdivision 1, of the Penal Code as charged in an information *788 filed by the district attorney of Orange County. In the first count of the information the offense was alleged to have been committed on or about January 15, 1953, with one Barbara Jean Kelly, then under the age of 18 years, and in t...
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Defendant appeals from a judgment ordering reformation of a contract for sale of real estate and awarding damages to plaintiff for a breach of such contract. Appellant in 1950 listed certain property for sale with a number of real estate brokers, including the Metropolitan Realty Company which employed a Mr. Bryant as a salesman. On May 20, 1950, Mr. Bryant obtained a deposit receipt *798 sig...
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The People of the State of California, represented by the attorney general, sought a writ of mandate to compel the district attorney of Los Angeles County to deliver to the State of California the sum of $24,990.91 which the district attorney, in his official capacity, had seized as money that had been offered for distribution in violation of provisions of the Penal Code relating to lotteries. The...
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Appeal from an order denying a petition of Margaret Dupray to terminate the guardianship of the person of Diane Marshall, a minor, and for her custody. The order adjudges: 1. Letters of guardianship were issued to Lorraine Bridges Marshall, as guardian of the person of Diane, on March 15, 1950. 2. The petitioner, the natural mother, had abandoned Diane. 3. Lorraine Bridges Marshall, the stepmothe...
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Appellant, a licensed general contractor doing business as Ted Bares Construction Company, was the successful bidder for the job of constructing certain sewerage system improvements for respondent city of Portola. Plans and specifications had been prepared and furnished to appellant and other prospective bidders when bids were solicited by respondent city. Upon the acceptance of appellant’s bid, ...
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Defendant was convicted by a jury of violating section 11500 of the Health and Safety Code in that he unlawfully possessed a narcotic commonly known as heroin. He admitted a prior conviction of burglary and violation of the Dyer Act, and that he had served terms of imprisonment therefor. About 3 p. m. on July 30,1953, defendant was apprehended while driving his car near Banning. When he was sea...
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Plaintiff, the former wife of defendant Joe Ellichman, sued to void a property settlement agreement signed by the parties in anticipation of a divorce suit and for an accounting of their community property. In the agreement, dated August 13, 1948, she declared to have received complete settlement of all property rights including community property and to waive maintenance and support in conside...
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Plaintiff sued for personal injuries and property damage against Russell Wright and several fictitious defendants. More than a year after the accident plaintiffs substituted and served an amended complaint on Herman J. Cox (known as Crazy Cox) designating him as the John Doe sued in the original complaint. The trial court granted Cox’s motion to strike this portion of the complaint. Judgment wa...
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124 Cal.App.2d 839 (1954) 269 P.2d 683 THE PEOPLE, Appellant, v. LOUIS A. SEARS et al., Respondents. Docket No. 5048. Court of Appeals of California, Second District, Division Two. April 29, 1954. *841 Edmund G. Brown, Attorney General, William E. James, Deputy Attorney General, S. Ernest Roll, District Attorney (Los Angeles), Jere J. Sullivan and Robert Wheeler, Deputy District Attorneys, for Ap...
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This is a second appeal in this action by plaintiff. In this instance it is from-the judgment entered upon a jury verdict in favor of defendants. The notice of appeal also states that it is from the order denying plaintiff’s motion for a new trial. No appeal lies from such an order. (Reeves v. Reeves, 34 Cal.2d 355 [209 P.2d 937].) The appeal from said order is therefore d...
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These cases were consolidated for trial. The appeal is by both plaintiffs from judgments entered upon jury verdicts in favor of defendants. The notices of appeal also state that appeal is taken from the order made denying plaintiffs’ motion for a new trial. There is no appeal from an order denying a motion for a new trial. (Code Civ. Proc., § 963.) The order denying the motion is, ho...
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This is a companion to the case of McNeil v. City of Montague, 3 Civil No. 8301, ante, p. 326 [268 P.2d 498], this day decided. Except as to parties plaintiff and the allegations of property damage the facts are identical and the allegations of the complaint are substantially the same. On the authority of McNeil v. City of Montague the judgment is affirmed. Peek, J., and Schottky, J., concurred. ...
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On or about February 25th, 1950, defendant insurance company entered into an accident insurance policy agreement with plaintiff, with a medical rider attached thereto. While said policy with said rider attached was in full force and effect, plaintiff sustained a hernia resulting directly and independently from all other causes, from accidental injuries. Plaintiff was disabled thereby for a period...
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This is an appeal by M. Kashian and A. Shuklian from a judgment for $1,000 which the trial court granted to the plaintiff against the two appellants and a third defendant who has not appealed, Aram Joseph, Jr., as executor of the estate of Aram Joseph, also known as Aram Hovsepian. The evidentiary record on appeal consists of a settled state *Supp. 881 ment, prepared under rule 7 of the Rules...
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In this unlawful detainer proceeding plaintiff obtained judgment for restitution of the premises, following which a writ of possession was issued to, and was *Supp. 886 executed by the marshal. Thereafter plaintiff filed a cost bill after judgment wherein he claimed the sum of $371.37, which included $1.00 for the issuance of the writ and marshal’s fees for executing the same in the sum of $370...
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Defendants herein demurred to plaintiff’s complaint on the ground that it fails to state facts sufficient to constitute a cause of action. The trial court sustained the demurrer without leave to amend and entered judgment for defendants. Plaintiff appeals. In the complaint the following facts are alleged: The 1952 Fresno County grand jury made court approved contract on April 28,1952, with defenda...
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This is an appeal from a judgment awarding plaintiff-respondent damages in the sum of $1,553 and costs for loss sustained in the destruction by fire of certain personal property. The complaint alleges, and the trial court found, that the fire was proximately caused by the negligent maintenance on the part of defendant-appellant Southern California Edison Company of the electric power lines serving...
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This is an appeal from judgment in favor of respondent in an action brought by appellant to recover damages resulting from an alleged trespass. At the time of the unfortunate series of events which ultimately culminated in this litigation, the appellant was engaged in the business of raising chickens on a ranch' near Newberry, California. In order to understand and appreciate the circumstances ...
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Appellant was charged with a violation of section 510 of the Vehicle Code in that he drove an automobile upon a public highway at a rate of speed faster than was reasonable and at a speed which endangered the safety of persons and property. At the trial two officers told of arriving at the scene *Supp. 903of an accident where an automobile had run off the road. A tree was sheered off and the defen...
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This isan appeal from a judgment convicting the defendant of a violation of section 511 of the California Vehicle Code. On December 2, 1953, at about 4:30 o’clock in the afternoon, the defendant was driving a 1953 Buiclc convertible in a southerly direction along United States Highway 66 when he was observed by a traffic officer near the Wrightwood cutoff. The highway in question is a paved, four-...
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The sole question involved here is this: “Was there any evidence which supports the conclusion of the trial court that plaintiff’s injury caused the malignancy which thereafter appeared? The transcript discloses that: Dr. Hull testified as follows: “Q. . . . have you ever had any experience with a breast cancer that was developed from a single blow or trauma? A. Yes sir.” Dr. Owen testified as fol...
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In a complaint filed in the Justice Court of the Victor Judicial District it is alleged that the defendant engaged in the business of contracting and acted in the capacity of a contractor without having a license therefor in violation of section 7028 of the Business and Professions Code. A contractor is defined in section 7026 of the Business and Professions Code as follows: “The term cont...
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In a proceeding under sections 613-615 of the Probate Code, brought by the executor of the will of Gaetano Merola for examination of the widow, Gladyce C. Merola, concerning property of the estate allegedly in her possession, the court sitting in probate made an order (1) directing that the widow forthwith deliver to the executor cash in the sum of $4,000 and bonds of the face value of $16,000, f...
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I dissent. The errors complained of are, misdirection of the jury and improper rejection of evidence. For such errors we are commanded by the Constitution not to reverse the judgment unless, after an examination of the entire cause, including the evidence, we shall be of the opinion that the errors complained of have resulted in a miscarriage of justice. (Cal. Const., art. VI, §4½.) The testimony ...
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The Department of California, Veterans of Foreign Wars of the United States appeals from a judgment holding that it was not exempt from the payment of contributions under the Unemployment Insurance Act (3 Deering’s Gen. Laws, Act 8780d, herein further called the Act) and liable for assessments of such contribution from October 1, 1945, to December 31, 1949, with penalties and interest. Following a...
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In an information filed by the district attorney of Los Angeles County defendant was charged in Count I with the crime of engaging in bookmaking upon the result of a horse race, in violation of subdivision I, section 337a, of the Penal Code. In Count II he was charged with the offense of accepting a bet or wager upon the result of a horse race, in violation of subdivision VI, section 337a, of the ...
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On July 16, 1950, plaintiff was one of a drilling crew employed by Loffland Brothers Company, an oil well drilling contractor. Said company had contracted to drill several wells for Richfield Oil Company. The latter company had a contract with the harbor department of the city of Long Beach to drill and operate numerous wells on city property in the harbor area. *35 As drilling op...
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The appeal herein is from a judgment entered after the sustaining of a demurrer to the third amended complaint, without leave to amend. *42Plaintiff’s original complaint, denominated a complaint to quiet title, and the succeeding three amended complaints, allege in varying terms, as stated in appellant’s brief, “that matrimonial difficulties had existed between the parties and that a contract had ...
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This is an appeal by plaintiff from a judgment in a mandamus proceeding in which she petitioned for a writ to compel the respondents to classify and employ her as a permanent teacher of respondent school district. *46 Appellant was employed by the Fresno Unified School District as a probationary teacher in the day school for the 1945-1946, 1946-1947 and 1947-1948 school years. On Hay 10, 1948...
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This is an action by plaintiff to recover from the county of Fresno attorneys’ fees and costs in the sum of $13,413.39, claimed to have been incurred by plaintiff in the successful defense of a grand jury accusation *53 charging him with willful misconduct and seeking his removal from the office of sheriff of Fresno County. The question here presented is the construction of section 2001 of th...
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This is an appeal from a judgment of non-suit entered in favor of defendants in an action brought pursuant to the Jones Act. (46 U.S.C.A. § 688.) Plaintiff is the former wife of deceased and brings this *63action as administratrix on behalf of the sole beneficiaries of his estate. They are his two children, Eugene L. age 23 and Elizabeth Pollmann, a minor. The testimony of the plaintiff and Elizab...
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By his action plaintiff sought punitive as well as compensatory damages for injuries received in the course of an altercation with the defendant McFairen, sued herein as McFeran. The Scott Lumber Company and Raymond Berry, its vice president and general manager, were joined as defendants on the theory that McFairen’s acts were committed in the course of his employment as the servant of each, th...
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The question here for decision is whether the parents of a minor son who with them is defendant in an action for damages for his alleged negligence in the operation of an automobile are entitled to a “stay” of the trial until the son returns to Los Angeles County from the armed forces overseas. In February 1953, one John Kulash and others filed an action in respondent court against petitio...
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Plaintiff commenced this action as assignee of Herman Cannon, a real estate salesman, to recover commissions allegedly due the salesman from defendant, a real estate broker. Defendant’s motion for nonsuit was granted. Plaintiff appeals from “the order of nonsuit and judgment for costs. ’ ’ At the trial the depositions of Cannon and defendant were received in evidence, and it was stipulated that sa...
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Defendant was found guilty by the court, sitting without a jury, of the crime of perjury as defined in Penal Code, section 118, in that he did knowingly, corruptly, falsely and feloniously say, declare, depose and state as true in a certificate of registry of marriage that he was a, single *84 man and that he had never been married, and that the said defendant then and there knew s...
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Plaintiff Hall sued San Mateo County Title Company, a corporation, as sole defendant alleging that the defendant had received $2,853.04 for the use and benefit of plaintiff. Thereafter the title company paid the sum of $5,706.08 into court and Kathryn Burns was substituted as sole defendant. She denied that the title company had received moneys for the use and benefit of *90plaintiff and, cross-co...
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This is an appeal by plaintiffs and appellants from a judgment dismissing their shareholders’ suit by reason of their failure to furnish security as required by an order of the trial court made pursuant to section 834 of the Corporations Code of the State of California. This case presents a suit by certain minority stockholders of a California corporation to rescind a sale of substantially...
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The superintendent of schools reported to the board of education of the city of Los Angeles that within the area included within the boundaries of the Los Angeles School District there were “active, disciplined communist organizations presently functioning.” He also reported that there was a clear and present danger that the members of such organizations would “engage in concerted effort to hampe...
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Appeal by John Jenkins, referred to as defendant, from a judgment which granted Ramona Jenkins, his wife, referred to as plaintiff, an interlocutory decree of divorce, custody of a minor child, John Lee Jenkins, and support for herself and the minor. On July 8, 1949, plaintiff sued defendant for separate maintenance on the ground of cruelty. After a contest, the court found that defendant had b...
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Defendant appeals from an order denying his motion to vacate a default judgment and to grant him leave to answer plaintiff’s complaint. Respondent filed a complaint for divorce on October 2,1951, and summons thereon was issued the same day. On January 21, 1952, respondent filed a pleading entitled "Supplemental Complaint for Divorce” which contained all of the allegations necessary to an origin...
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On January 4, 1951, plaintiff obtained “Final Judgment of Divorce” from defendant, wherein defendant was ordered to pay the sum of $280 per month for alimony and support of the two minor children of the parties. One of these children reached majority and the amount of monthly payment was reduced thereby to $240. In May, 1951, both parties filed affidavits and requests for modification of the suppo...
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Mr. and Mrs. Eugene A. Jacquemart were married June 17,1919. In 1942 a judgment of separate maintenance was granted to Mrs. Jacquemart. Her husband was ordered to pay $125 per month for her support, and for the support of a then minor child. The court divided the community property of the parties equally between them. After that the order for support was modified from time to time. Mr. Jacquema...
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By conventional allegations, appellant sued to recover $28,617.39 on an “oral contract.” The objection of respondents to the receipt of any evidence on the ground that the complaint does not state a cause of action was sustained and judgment against appellant was entered. Hence, this appeal. Appellant, on behalf of himself and his partner Reichert, sued to recover on an “oral contract, the...
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This is a motion to dismiss an appeal from an order denying the appellant custody of her two minor granddaughters. In support of the motion to dismiss, respondent contends that the questions raised by the appeal are now moot in that the District Court of Harris County, Texas, has, since the order herein was made, granted permanent custody of the minors to respondent and at the time of such...
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Defendant appeals from a conviction of violating section 501 of the Vehicle Code. The information accused him of driving an automobile while under the influence of intoxicating liquor and in an unlawful manner proximately causing bodily injury to one George Collier. Such crime is a felony. But at the conclusion of the trial, proceedings were suspended and the accused was granted *140 probation ...
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The sole question posed on this appeal is whether the court erred in refusing to instruct the jury on the law as it relates to circumstantial evidence. *145 Appellant was arrested while in a room which contained heroin which was in the possession of appellant at the time the officers entered. Appellant admitted prior narcotic and robbery convictions; he “does not challenge the sufficiency of ...
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Defendant appeals from judgment quieting plaintiffs’ title to real property. Defendant Mrs. Dangerfield and her husband saw an advertisement in a newspaper which stated that “a fine modern home” in El Monte “On full acre” and “in first class condition” was for sale. The property was owned by plaintiffs. The Dangerfields went to the property and saw Mr. Nelson who told them that the propert...
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Plaintiff sought an order, pendente lite, requiring defendant to pay to her $1,850 a month for the support of herself and three children. The court made an order that defendant make payments as follows: $50 a week for support of plaintiff; and $75 a week for the support of the children. It was further ordered that defendant keep up the payments on the home, *152on plaintiff’s automobile, on all in...
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Appeal by defendant from an order in a proceeding brought under the “Reciprocal Enforcement of Support Law.” (Code Civ. Proc., §§ 1650-1681.) Defendant also appeals from an order denying his motion for a new trial. Since the latter order is nonappealable the appeal therefrom will be dismissed. The “Reciprocal Enforcement of Support Law” was enacted in 1951. (Stats. 1951, ch. 694.) It was a...
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This is an action to foreclose a chattel mortgage and an assignment of an oil and gas lease given as security for the payment of a promissory note in the sum of $24,000 payable to the plaintiffs and executed by the defendant corporation. The execution and nonpayment of the note was admitted by defendant and special defenses of failure of consideration and usury were alleged. Defendant also filed ...
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Defendant appeals from a judgment for plaintiff in the amount of $6,954.90 together with exemplary damages of $500. Appellant was employed as warehouse foreman by respondent in its coarse paper goods jobbing and distributing business. On March 4, 1948, respondent purchased certain merchandise *177 from Zel E. Kahn, a salvage merchandise dealer. In the latter part of April appe...
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Plaintiff sued for equitable relief—to foreclose two judgment liens upon described real property, and to set aside a declaration of homestead thereon upon grounds of false and fraudulent statements in the declaration. The defendant filed a general denial. Thereupon the plaintiff moved for a summary judgment upon affidavit averring that the declaration of homestead was fraudulent. The undisputed f...
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Appellant and one Lewis were tried jointly before the court without a jury on a charge of burglary. Both defendants were also charged with, and admitted, a prior .felony conviction. The trial court found appellant guilty and defendant Lewis not guilty. The appeal is from the judgment and from the order denying a new trial: Appellant raises two grounds for a reversal of the judgment: *185 (1) th...
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Defendants’ objection to the introduction of any evidence on the ground that the complaint does not state a cause of action was sustained. Plaintiff appeals from the ensuing judgment of dismissal. The complaint alleges that prior to October, 1949, plaintiff had employed defendant Floyd William Woodson, who was a duly licensed real estate broker, to represent it in the acquisition of a parc...
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Appeal by defendant Marquis from an adverse judgment in an action for damages for fraud. Defendant United States Electronics Corporation defaulted. It will be referred to as “the corporation.” Marquis will be referred to as “defendant.” In 1950 the corporation was engaged in the promotion and sale of a playback electronic audible advertising machine, which during its operation reproduced a...
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Petition for writ of review and annulment of portion of findings and order on apportionment. *202 Questions Presented 1. May the commission, on rehearing, after reviewing the record, make findings and order differing from its first findings and order, where no additional evidence is introduced? 2. Are the commission’s findings supported? Record Respondent Georg...
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Plaintiffs appeal from judgment in their favor in the sum of $63.62. Questions Presented 1. Effect of order setting aside default judgment against defendant Ray E. Nolan without setting aside his default. 2. Effect of the judgment against Emily M. Nolan. Record Defendant Ray was served with summons November 16, 1951. On November 28th he obtained an order extending to De...
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Plaintiff sued for a writ of mandate to require the defendants to call a special election on a petition seeking an election to vote on the question of the disincorporation of the city. The defendants had denied the petition *210 and had refused to call an election on the grounds that it was barred by the then existing provisions of section 1702 of the Elections Code, which then rea...
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Appellant, Roy E. MacArthur, appeals from a judgment of conviction after jury trial. The information charged him with five violations of section 11500 of the Health and Safety Code, each of the first four consisting of the sale of a narcotic [heroin], two on March 31, 1953, one on April 11 and one on April 22, 1953. The fifth count was for furnishing a narcotic [heroin] on April 11, 1953. A verdi...
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Certain cross-defendants and one cross-complainant appeal from an adverse judgment quieting title to real property and granting declaratory relief in this case tried on stipulated facts plus the testimony of two expert witnesses. Hereford Berry and Minnie P. Berry deeded a parcel of real property to J. W. Tucker on March 18, 1922, ‘ ‘ excepting therefrom and reserving to the grantors and t...
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This is an appeal from an order appointing receiver to take possession of a liquor license belonging to the judgment-debtor Mildred Lucey and to sell the same to satisfy a judgment which has become final. *237 It is contended on appeal, “That a receiver could not be appointed to take into his possession a liquor license standing in the name of the judgment debtor, and the court exceeded its j...
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The judgment from which plaintiff appeals, dated November 7, 1952, and entered November 10, 1952, recites that “The above matter came on regularly for trial on the 14th to 17th and 22nd to 31st days of October, 1952,” that both parties were represented by attorneys, and “the Court having found that by the evidence produced both parties were entitled to a decree of divorce on the grounds of extrem...
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Appellants L. A. Leiter and Ralph Cogan owned Lot 215, Tract 13796, county of Los Angeles, and appellants Daniel D. Aberle and Virginia R. Aberle owned Lot 216 in the same tract. Both parcels were registered under the Land Title Law (Torrens Title). On February 24, 1950, the four owners executed an agreement to sell their respective lots to the four respondents, William J. Handelsman, Lill...
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The litigants involved in the various appeals here presented are: Frank S. Marshall, a general contractor engaged in the building construction business, a respondent. Wurster, Bernardi & Emmons, a copartnership of architects, and respondents. Sam F. Termini and Alyce C. Termini, husband and wife, who built a home in Hillsborough, and who, directly or indirectly, employed Marshall...
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Defendants appeal from a judgment awarding plaintiffs $1,500 for breach of contract. Appellants agreed to sell certain real property to respondents for $3,250. An agreement of sale and deposit receipt dated February 15, 1949, acknowledged receipt of $250, and provided that the balance be paid at $35 per month with interest at 6 per cent. This agreement also contained several conditions of sale....
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From a plaintiff’s judgment for $25,000, on a jury verdict, defendant appeals. Questions Presented 1. Defendant does not question the sufficiency of the evidence to support the jury’s implied finding of defendant’s negligence, but contends plaintiff was guilty of contributory negligence as a matter of law. 2. Did the court err in refusing to inform the jury after its retirement that pla...
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Plaintiff, Jessie C. McIntyre, was standing in the ticket line in the lobby of the La Mar Theatre in Manhattan Beach. It was about 2 o’clock on a Sunday afternoon. The theatre doors had not been opened. Boys and girls were playing in the lobby. A boy who was there testified: “Well, he (the manager) came out and he said that we should stop pushing and running around and yelling and playing sort ...
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Plaintiff appeals from a judgment of dismissal entered after the sustaining without leave to amend of a demurrer to plaintiff’s complaint. Facts: Plaintiff filed a complaint in three counts. Count I alleged that plaintiff entered into a contract with defendant Lowe, a civil engineer, to design a sea wall, including plans and specifications, and to supervise the construction of such wall on wa...
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This action was instituted for the purpose of recovering for the estate of John Fritz a large sum of money and securities which came into the possession of appellant during the last months of decedent’s lifetime and which appellant claims to be a gift to her. Facts: John H. Fritz died on the morning of October 1, 1949, at the age of 85 years. He had been failing for some time and had been ser...
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Plaintiff (appellant here) filed an action to quiet title to certain real property, naming as parties defendant his four brothers and sisters. The complaint alleged that plaintiff was the owner in fee of certain described prop *299 erty and that he had been in the actual, exclusive and adverse possession thereof for over five years before the filing of the complaint, claiming to own the same in...
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This is an appeal by defendant Krause from a judgment in favor of plaintiff Dean arising out of an alleged sale of lumber by plaintiff to defendant. Plaintiff's complaint alleged four causes of action. The first three were the usual common counts and the fourth alleged a written contract. Defendant’s answer denied generally the allegations of the complaint, and as an affirmative defense alleged th...
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Appellants petitioned the superior court for a writ of mandate directed against the department, compelling it to show cause why certain so-called arbitrary assessments it had made for unemployment insurance contributions claimed by it to be due and payable from appellants as employers pursuant to the Unemployment Insurance Act should not be canceled. Petitioners allege that, pursuant to the act...
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Defendant was convicted of the crime of incest committed with his sister. Section 285 of the Penal Code provides that: ‘.‘Persons being within the degrees of consanguinity within which marriages are declared by law to be incestuous and void who . . . commit fornication or adultery with each other, are punishable by imprisonment in the state prison. ...” Defendant appeals from the judgment and from...
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Plaintiffs brought this action to annul a promissory note and deed of trust which they had executed, claiming fraud in the procurement thereof. As defendants, they joined Ben Melmet, the payee of the note, James A. Williams, allegedly active in procuring the note, Milton N. Owens, allegedly engaged by Melmet to sell the note, and Walter E. McMannis, the present holder of the note. Upo...
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This is an appeal from a portion of an order settling first and final account of executors; order correcting and amending inventory and appraisement; order of allowance of compensation for extraordinary service rendered by attorneys for executor, Bank of America; order of allowance of compensation of guardian ad litem-, and decree of final distribution entered on May 28, 1952. The co...
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This is an appeal from a judgment in favor of plaintiff and respondent in an action brought to recover a broker’s commission upon the sale of real property belonging to appellants. This is the second trial of this suit. The first trial resulted in judgment for defendants, but a motion for new trial was granted on the ground of the insufficiency of the evidence to sustain the judgment. Foll...
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This is an appeal from a judgment denying a writ of mandate in proceedings under section 1094.5, Code of Civil Procedure, to review an order of the State Board of Equalization revoking appellants’ on-sale general liquor license. The controversy herein relates to the third count only of the amended accusation inaugurating the administrative proceedings, which count in substance charged violation...
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Appeal by defendant from an order granting plaintiff’s motion for a new trial in an action for damages for personal injuries and injury to property allegedly caused by the negligence of defendant in the operation of his automobile. Defendant denied negligence and alleged contributory negligence on the part of plaintiff. No evidence was introduced on the issue of contributory negligence and the qu...
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Appeal by plaintiff (wife) from an order modifying a judgment regarding the custody and support of a minor child. On August 19, 1947, plaintiff obtained an interlocutory judgment of divorce which stated that a property settlement agreement of the parties was approved. In said judgment the custody of the minor daughter, 5½ years of age, was awarded to plaintiff, subject to defendant’s right of r...
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This is an action brought by plaintiff and respondent against defendant and appellant based on a breach of contract and seeking damages therefor. After trial the court awarded judgment in favor of plaintiff and defendant appeals. The subject contract was one for the sale *352 and delivery of California black wálnut kernels. Respondent was buyer and appellant was seller. The contrac...
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Responsive to the pleadings the trial court made the following findings of fact: In February of 1946, plaintiff-respondent and defendant-appellant began living together as husband and wife and continued in that state until August of 1950. Respondent obtained a final decree of divorce from her former husband on February 16, 1948. Appellant had often promised her that he would marry her immediately...
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This is an action to quiet title to a 30-foot strip of land in Lot 7 of a certain subdivision. The defendants and the plaintiffs own adjoining properties in said Lot 7, and the dispute is as to the boundary line between them. The plaintiffs are the successors in interest of their mother, Mrs. Kerwin. On April 3, 1912, a corporation filed a map showing the subdivision of a section into 64 numbered ...
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We are satisfied the judgment in this case may not be upheld. The respondent was a member of the San Francisco Police Department from June 19, 1914 until his retirement on June 30, 1950. During this time he served in the capacity of patrolman, sergeant, lieutenant, captain of traffic and director of traffic, and in the course of his said employment worked several hours overtime. Prior to February ...
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Defendant was convicted of having committed the infamous crime against nature. (Pen. Code, § 286.) He appeals from the judgment. Defendant did not testify or offer any evidence in his behalf. The only point made is that there was no evidence of penetration. Any penetration, however slight, is sufficient to complete the crime. (Pen. Code, § 287.) Recitation of the nauseating details would serve no ...
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Defendant appeals from a judgment of conviction of violation of section 288 of the Penal Code and from the order denying his motion for a new trial. There would appear to be no reason for a detailed summary of the evidence at the trial. It is sufficient to note that an examination of the transcript discloses ample evidence to sustain the judgment. Defendant contends that the court erred in...
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John Wales filed his complaint herein to rescind his contract to purchase a certain on-sale liquor tavern business. He joined as defendants the seller, Mae Mulligan, his eopurchaser, Elsie Greene, and the escrow holder, Bay Counties Escrow Company, a corporation. Each of the defendants answered the complaint, and Mulligan, in addition, cross-complained to enforce the contract. Judgment was rend...
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Upon this appeal by plaintiff from an order transferring the cause from Alameda to Los Angeles County at the instance of defendant C. B. S. Steel and Forge, a corporation, the question is whether or not the evidence supports the implied finding that Alameda County is not a county in which the defendant corporation may be sued upon the causes of action stated in the complaint. “A corporation . . . ...
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Plaintiff appeals from a judgment in favor of defendants which was entered following an order sustaining defendants’ demurrers to his second amended complaint without leave to amend. The complaint is for personal injuries alleged to have been caused to plaintiff by the negligence of defendant Stevenson, a licensed physician, and defendant Franklin Hospital, during the labor of plaintiff’s ...
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Appellants Laura Glogau and Jeanette Glogau, devisees and legatees under the will of the decedent Alfred Guthman, appeal from a judgment of the superior court confirming a report of the state inheritance tax appraiser assessing California inheritance taxes on the value of the interests passing to them under decedent’s will. In the computation of the value of the interests passing from decedent ...
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Appellant Isaac Fisher James was awarded an interlocutory decree of divorce from Charlene Bernette James upon his cross complaint, charging cruelty. Findings were waived. The appeal is from portions of the. judgment which awarded household furniture to cross-defendant and ordered the real property which was the home of the parties *418sold and the proceeds equally divided. There is no appeal from ...
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This is an appeal from a judgment of the Superior Court of Contra Costa County in favor of plaintiff in the sum of $5,862.29. Plaintiff’s complaint alleged a written *421 contract, a property settlement agreement and a breach thereof by defendant. Defendant’s answer admitted the execution of the contract, but denied the breach. Defendant cross-complained for declaratory relief asking an adjudic...
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Ethel Swegle, the holder of an on-sale general liquor license, appeals from a judgment of the Superior Court of Alameda County denying a writ of mandate by which appellant had sought to set aside the decision of the State Board of Equalization revoking the aforesaid license. Appellant was charged on October 27, 1952, by amended accusation with the violation of section 58 of the Alcoholic Beverage ...
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This is an action for reformation of a joint tenancy deed and for partition of the real property to which it relates instituted by a father against a son and that son’s wife, both mentioned in said deed as tenants jointly with the father. The court gave judgment for the father; the son and daughter-in-law appeal. The findings of the court, made mainly in conformance with the allegations and tes...
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Appellant was convicted by the court sitting without a jury, a jury trial having been waived, of the crime of grand theft. He appeals from the judgment and order denying his motion for new trial. It appears that appellant had an option to purchase from one Fred N. Pigeon the gold bearing gravel in a mine known as the Pigeon Mine. He met the complaining witness, one Cholia, an elderly man, in th...
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Plaintiff and the defendant Gladys M. Brown were owners of real property in Long Beach. On May 3, 1949, they entered into an escrow agreement by the terms of which it was agreed that defendant Brown would exchange her 10-unit apartment building having a value of $59,500, subject to an encumbrance of $32,500, for two parcels of property of plaintiff: (1) a duplex worth $10,000; and (2) a single fa...
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Defendant James K. Ohligschlager appeals from a decree granting a divorce to plaintiff Barbara Jean Ohligschlager on grounds of mental cruelty. Custody of the parties’ child was awarded to plaintiff, with rights of visitation to the husband. The community property of the parties was divided approximately equally. The court ordered defendant to pay plaintiff $250 per month alimony and support mone...
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Appellant was charged with having on January 21, 1953, and January 22, 1953, violated the provisions of section 11500 of the Health and Safety Code in that on those two occasions he unlawfully sold a derivative of morphine. He was defended by the public defender and was tried before the court, a jury having been waived by him. He was convicted on both counts. From the ensuing judgment sentencing h...
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This is an appeal from certain portions of an amended interlocutory decree of divorce. Appellant husband was granted a divorce on the ground of extreme cruelty. The court awarded the respondent wife $2,000 representing her interest in the community property and $400 and $150, respectively, for additional legal fees payable to respondent’s counsel. Appellant Cornelio purchased a piece of propert...
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This is an action for personal injuries brought by William A. Bryant against County of Monterey, Jack L. McCoy, Sheriff of the County of Monterey, Bert Cahoon, Deputy Sheriff, and the Massachusetts Bonding and Insurance Company. After the sustaining of a demurrer to the original complaint (filed by the defendants who are not a party to this appeal) plaintiff served a first amended complain...
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Plaintiff and defendant lived together as husband and wife for nearly seven years. They had no children. The husband was granted an uncontested interlocutory decree of divorce from the wife March 18, 1953. The two parties had entered into a property settlement agreement, which was approved by the interlocutory decree. The wife had also quitclaimed the family home to the husband. *476 June 11,...
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Basically, the Sacramento-San Joaquin Drainage District was created and is operated for the purpose of carrying out a general flood control project for the Sacramento and San Joaquin Rivers and their tributaries. The waters discharged into these streams at flood times are far in excess of the carrying capacity of the river channels. In the Sacramento Valley, to supplement this carrying capacity, l...
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This is an appeal by George Allen and Mildred Allen Swift, legatees under the will of Caroline Allen, deceased, from a decree determining interest in said estate made pursuant to a petition under Probate Code, section 1080. Appellants are the natural children of decedent and her deceased husband, George Edward Allen, who died intestate March 18, 1934. Respondent is the decedent’s son by prior m...
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Defendant was charged with the crime of assault by means of force likely to produce great bodily injury, a felony (Pen. Code, §245), committed upon Kay Williams Spreckels on or about August 20, 1953. A jury trial was had which resulted in a verdict finding the defendant “Guilty of the crime of Misdemeanor^ to wit, Simple Assault, a lesser offense necessarily included within the crime charged. ’ ’...
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Defendant, as sheriff, sold certain real property under a writ of execution to a judgment creditor for the' amount of the judgment, interest, and costs. That amount was more than the amount stated in a writ of attachment that had been levied, in the same action, upon the property. Plaintiff had acquired the property after the attachment had been levied and before the execution sale. The present ac...
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Appeal by defendants from a judgment which decreed that plaintiffs are entitled to a peremptory writ of mandate commanding defendants to terminate the proceedings for the annexation to the city of Long Beach of territory described as “Increment 110” and a special election set therefor on August 20, 1953. The judgment also decreed *522 that the attempted proceedings for the annexati...
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This is an appeal from an order changing the venue of a proceeding from the Superior Court of San Bernardino County to the Superior Court of Los Angeles County. The proceeding is one for a statutory writ of mandate, under section 1094.5 of the Code of Civil Procedure, to review the validity of a final order of the Registrar of Contractors revoking the licenses of the petitioners, for an alleged...
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Plaintiff recovered judgment of $149,560.84 against A. T. Jergins, Lowell Stanley and Charles P. Cotton, as executor of the Last Will and Testament of Charles M. Cotton, deceased. The amount was determined to be the reasonable value of plaintiff’s services in introducing one John W. Lee, a representative of Smith, Barney and Company, a New York investment partnership (hereinafter called Smith-Barn...
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These are actions for the wrongful death of Wiley S. Bryant and Nancy M. Bryant, who were killed in a collision between the car in which they were riding and an ice truck driven by Leonard Duane Brownlee, an employee of the ice company. The accident happened about 5:30 p. m. on September 27, 1952, on Highway 99, about 2% miles north of Tulare. The respondent Edgeworth was the sole owner of an i...
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Defendant was charged with the offense of assault with a deadly weapon with intent to commit murder, alleged to have been committed on June 21, 1953. He was convicted by a jury of the included offense of assault with a deadly weapon. Defendant, áccording to the minutes of the court, was “duly arraigned.” After stating he would appear without counsel for the purpose of entering a plea and having h...
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Defendant appeals from two judgments for damages (rendered in separate actions consolidated for trial), resulting from sales of defective suspension plugs to plaintiff. Plaintiff’s complaints comprised counts based on breach of express and implied warranties and negligence in the design and manufacture of such plugs. Defendant pleaded as affirmative defenses contributory negligence, plaintiff’s...
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Appeal by plaintiffs from a judgment which denied their petition for mandate to command defendants to terminate proceedings for annexation of territory described as “Increment 117” to the city of Long Beach. Territory, which we call Parcels one and two for convenience, is entirely surrounded by the city of Long Beach, consisting largely of so-called “shoestring strips.” A narrow strip, part of Lon...
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Plaintiff and respondent, John Paul Lumber Company, a Wisconsin corporation, brought this action against Samuel A. Agnew, defendant and appellant, to quiet title to certain timber lands in Del Norte County. It also asked that the court declare void and order cancelled of record certain deeds on which appellant relies as vesting title in him. It was the theory of respondent that, although these ...
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Plaintiff appeals from a judgment of nonsuit rendered after plaintiff’s opening statement to a jury. The action was based on a conspiracy by defendant paramour to commit assaults and battery upon plaintiff by committing abortions on her and rendering her sterile and causing permanent damage to her female organs and causing her extreme mental suffering. Upon motion for nonsuit after opening st...
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Plaintiffs Mr. and Mrs. Ramos, husband and wife, appeal from a judgment after verdict rendered for defendants. The action was consolidated for trial with one brought by Mr. Gastello, the brother, and, at the time of an automobile collision, the guest of Mrs. Ramos. The jury returned a verdict in favor of Mr. Gastello against all defendants but against Mr. and Mrs. Ramos. On January 3, 1951, Mrs...
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The plaintiff Joseph Lowenthal, who together with his wife owned and operated a cafeteria and delicatessen store, was driving his 1950 Nash automobile at a speed of 25 miles per hour in the middle westbound lane on Colorado Boulevard, between Allen and Parkwood Streets, County of Los Angeles, the evening of March 22, 1951. His wife, Ruth, was seated beside him in the front seat. As he noti...
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This action was commenced when plaintiff wife filed a complaint for separate maintenance grounded on the charge of extreme cruelty. Subsequently, she filed a second amended complaint wherein she sought a divorce or, “in the event that the court should determine that plaintiff is not entitled to a divorce, that plaintiff may live separate and apart from defendant.” Defendant husband filed a...
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This is an action to recover a real estate broker’s commission for $20,000. Plaintiff is assignee of the broker, Alden B. Coyne. The cause was dismissed as to defendants Córtese and Bershim and defendant Dinow filed his answer. Thereafter the latter died and the action was revived on motion and a supplemental complaint was served on Celia A. Dinow, as administratrix of the estate of Mike E. Dinow,...
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On November 15, 1909, appellants’ predecessors in interest executed and delivered a document to the respondent city of Inglewood providing in part as follows: “That said undersigned first parties, in consideration of the sum of One Dollar to them in hand paid, the receipt of which is hereby confessed and acknowledged, and also in consideration of the benefits to be derived by said first pa...
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This is an appeal from an order “denying appellant suit money to prosecute her action for divorce and to cancel a property settlement agreement.” Appellant’s brief further states: “Appellant’s action was filed less than one month after appellee had obtained a default interlocutory decree of divorce. Appellant’s action for divorce was premised on a reconciliation having occurred after the entry of...
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125 Cal.App.2d 670 (1954) HARRY R. PEARSON, Appellant, v. ELIZABETH V. BALDWIN, Respondent. Civ. No. 19982. California Court of Appeals. Second Dist., Div. Three. June 1, 1954. Anderson & Howard for Appellant. Courtney A. Teel for Respondent. SHINN, P. J. Plaintiff owns Lot 17 of the New Haven Tract in the city of Arcadia, improved with a one-story residence. Defendant owns Lots 15 and...
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Plaintiff appeals from refusal of the court below to award alimony pendente lite after hearing on her order to show cause. The court concluded the proceeding by ordering “The matter of support of plaintiff is continued to time of trial.” An order was made for attorney’s fees and court costs, from which no appeal was taken. The estranged husband and wife herein had been married for 18 years prio...
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Appeal by plaintiffs from an adverse judg ment in a suit to impress a constructive trust on, and for an accounting of profits from, an undivided one-ninth interest in Los Alamos ranch in Santa Barbara County, legal title to which is in defendants. The basis of the suit is that in the year 1913 defendant Valerio Tognazzini, while acting as guardian of the estates of plaintiffs, who were the...
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Three separate appeals are involved here. The first is an appeal from an order for payment of a cash appeal bond in McNulty v. Copp, No. 15769, which bond was posted on appeal therein; the decision on the appeal in that matter is reported in 91 Cal.App.2d 484 [205 P.2d 438]; it will hereafter be called the original action. The second appeal is in Eldridge ...
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This ease and the related case, Tinsley v. Bauer, Civil No. 15784 [post, p. 724, 271 P.2d 116], were consolidated on appeal for argument in accordance with a stipulation of the parties. The subject matter of the two appeals is, however, so distinct that they can better be treated separately. Mrs. Tinsley, a former bookkeeper in the employ of defendant Bauer (who does business under the fi...
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This is an action under section 689, Code of Civil Procedure, to determine title to personal property (bank accounts) levied on under writ of execution based on the judgment in the preceding case (appeal 15854) [ante, p. 714 (271 P.2d 110)]. Clint R. Tinsley, the husband of Frances Tinsley, filed with the sheriff two third party claims and Mr. Bauer, the judgment creditor, filed a petition to d...
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This is an action to recover for personal injuries and property damage sustained hy plaintiffs in a collision between a Packard automobile being driven by plaintiff Robert K. Light and a Mack truck and trailer owned by defendant F. N. Rumbley Company, a corporation, and being driven by Ira Cortes Cagle. In a second cause of action, plaintiff Kathryn Christine Light, who was riding in the Packard a...
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Defendant, Bernard Rainey, appeals in propria persona from his judgment of conviction of first degree robbery, and from the order denying his motion for a new trial. He also complains that the denial of probation was an abuse of discretion. In the municipal court appellant pleaded guilty to the charge of robbery, and the cause was transferred to the superior court to fix the degree of the crime...
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All of the defendants appeal from a judg ment rendered in favor of the plaintiff. The action was commenced against defendant Flemming to recover on two promissory notes given by Flemming to plaintiff. N. H. Development Company and Newton, its president, intervened and filed an answer and cross-complaint. The indebtedness here sued upon is the culmination of a series of transactions, commen...
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These companion cases present a demand for a writ of mandate to the superior court requiring the dismissal of a criminal action because trial was not had within 60 days after the finding of an indictment as required by section 1382 of the Penal Code. The defendant Barrish in case Number 16232 has filed an identical petition with that in 16231 and has asked for the same relief. The two cases will ...
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On November 26,1952, an indictment was filed against the petitioner herein charging the commission of a felony—subornation of perjury—on the third day of January, 1951. No effort was made to apprehend him until February 22, 1954, when he appeared in Washington, D. C., in opposition to the confirmation of the Governor of the state as Chief Justice of the United States. He was thereupon *750 char...
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The petitioner seeks his release on a writ of habeas corpus for the delay in bringing his case to trial within the 60-day period specified in section 1382 of the Penal Code. The facts are without dispute. An information was filed on January 14, 1954, charging the defendant with the crime of grand theft and three prior convictions of a felony. On January 22, 1954, petitioner was arraigned and pl...
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This is one of four petitions for review of an award of disability benefits made by the respondent commission to the respondent Trembath. (See Idaho-Maryland Mines Corp. v. Industrial Acc. Com., post, p. 874 [271 P.2d 155]; Pacific Emp. Ins. Co. and Empire Star Mines Co., Ltd. v. Industrial Acc. Com., post, p. 875 [271 P.2d 155]; and ...
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The complaint in this action, labeled “Complaint for Libel,” was filed April 23, 1952, names as plaintiff “James J. Campbell, Guardian of Philip Cohen,” and is verified by Campbell, who appeared in the trial court and appears here in propria persona. The libel is alleged to have been uttered by defendant in December of 1945. It relates to Philip Cohen, the brother of Campbell, and prays for $25...
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At about 6 p. m. on January 9, 1954, while Mr. Gaige, who was in charge of the Pasadena incinerator, was counting the day’s receipts, two men entered his office and robbed him. One of them struck him and grabbed what money was in sight; the other carried a revolver. They were in Gaige’s office only a matter of seconds. He was unable to identify them other than that they were colored and between 2...
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This is an action brought for the support of an unborn child by its mother as guardian ad litem and involves a question of the legitimacy of the child. Annabelle Harbaugh (the mother) and Frank Harbaugh were married in 1932 and there are two children living, the issue of said marriage. They are aged 18 and 20 years. The Harbaughs lived together continuously from the time of the marriage until...
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In October, 1947, plaintiffs purchased a house and lot from the defendant. The house contained a front apartment of six rooms and a rear apartment of four rooms. There was also a garage which had been converted into a bedroom. Defendant occupied the front apartment except two bedrooms which she rented to different persons. The rear apartment and the garage-bedroom were also rented. In April, 19...
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Elizabeth Perske, the plaintiff, is the second and present wife of defendant Dr. Frederick Perske, an osteopath. Pearl Perske, a defendant and the cross-complainant, is the first wife of the doctor. Elizabeth brought an action against her husband and Pearl to quiet her title to a lot in Pebble Beach. Pearl responded with a cross-complaint, charging that the property in question was the property of...
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Plaintiff appeals from a judgment based upon an order sustaining a demurrer without leave to amend to her sixth amended complaint. The sixth amended complaint, considered alone, undoubtedly states a cause of action, good, at least, against a general demurrer. But the original complaint, the amended complaint, and the second and third amended complaints, all verified, alleged facts that were des...
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Both defendants were convicted by a jury of four counts of violating section 11500, Health and Safety Code (one count for possession and one count for transportation, of heroin; one count for possession and one count for transportation, of codeine). Defendant Echols was also convicted of violation of section 506a, Vehicle Code (driving when addicted to narcotics). Defendant Echols had admitted a ...
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The Merrill Elementary School District of Tehama County has appealed from an order denying its petition in the superior court to have declared invalid certain proceedings taken to annex that district with Corning Union Elementary School District. It is the claim of appellant that the proceedings were fatally defective in that the governing provisions of the Education Code were not followed. The...
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Plaintiff appeals from a judgment denying her relief in an action for damages to real property. Her home is on Lots 10, 11 and 12 of Tract 798 in the Hollywood Hills. Directly to the east of and adjacent to appellant’s land are Lots 45 and 46 which are contiguous with each other. To the east of Lots 45 and 46 is Lot P, about 30 feet in width and 534.38 feet long. As it approaches Lot 46, L...
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Defendants’ individual demurrers to the second cause of action in plaintiff’s first amended complaint were sustained without leave to amend. Their separate demurrers to the first cause of action were sustained with leave to amend within 20 days. Plaintiff appeals from the judgment of dismissal entered after she failed to further amend within that time. Plaintiff’s first cause of action all...
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Appellant Mae Miller was charged by information “with the crime of possession of heroin in violation of 'Section 11500 of the Health and Safety Code.” A jury returned a verdict of guilty. Defendant Frank Williams pleaded guilty. A motion for a new trial was denied and defendant Miller appeals from the judgment. Appellant contends, in substance, that the evidence is insufficient to support the verd...
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From a judgment in favor of defendants predicated upon the sustaining without leave to amend of their demurrer to plaintiff’s second amended complaint in an action to recover damages under section 377 of the Code of Civil Procedure for the wrongful death of plaintiff’s two children, plaintiff appeals. Facts: The second amended complaint purports to allege eight causes of action. The...
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From a judgment in favor of plaintiff in an action to recover upon a written guaranty of an account, after trial before the court without a jury, defendants Timothy L. Woods and James Woods, hereinafter referred to as defendants, appeal. Facts: * Defendant American SMW Corporation became indebted to plaintiffs’ assignor for goods, wares and merchandise furnished to said...
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From a judgment of guilty of robbery in the first degree 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. Viewing the evidence in the light most favorable to the People (respondent) the facts are: On June 6, 1953, defendant, armed with a knife, together with two other men took from the complaining witnes...
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Plaintiff Barbara Jean Fritz is the daughter, by a former marriage, of decedent Elmer Butler Thompson. Defendant Francoise B. Thompson, the surviving wife, is executrix of his estate. Plaintiff’s claim against defendant executrix for $5,000 is predicated, in the first cause of action, upon a claim filed in his estate. In the second and third causes of action the allegation is that the defe...
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Frank E. Cantwell petitioned the superior court that he be appointed guardian of his sons Frank Edmund, aged 5, and Peter Allen Cantwell, aged 3, alleging that the wife and mother, Clotilda Allen Cantwell, is not a fit and proper person to have custody. Notice was duly served upon Clotilda and the children, also upon the county probation officer as custodian of the children. Clotilda attended t...
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This case is closely related to the prior case of Beagle v. Hanks et al., Civil No. 8271, in which an opinion was this day filed (ante, p. 298 [270 P.2d 113]). The action of Beagle v. Hanks et al. was filed on March 12, 1951. It was tried in September of that year and judgment was rendered March 5,1952. By that judgment it was decreed that the plaintiff therein was not the owner of the real proper...
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Frank Lambe was convicted by the court, sitting without a jury, of having violated section 1263 of the Agricultural Code of the State of California, under a complaint charging him in two counts with violation thereof as follows. Count One: “The said defendant, on or about the 9th day of December, 1952 at and in the said County of Fresno, State of California, did act as an agent in the purchasing o...
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The defendant appeals from a judgment that contains these words: “findings not having been requested.” This recital is contrary to the fact shown by the record. Findings were requested, but they were refused on untenable grounds and findings were never filed. The result is a judgment without foundation, which must be reversed. After the taking of evidence had been completed, counsel made t...
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We are reversing the judgment because it was entered without any supporting findings of fact, although evidence was received and findings were not waived. The issue of this appeal is whether there was a timely request for findings. We have concluded that the request was timely. Concurrently with the filing of this opinion, we are filing one in the case of Engleman v. Green (Civ. A. 8345), a...
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It does not clearly appear whether this case was or was not submitted by the trial court at the time briefs were ordered, but as appears in Haupt v. La Brea Heating etc. Co. (Civ. A. 8224), ante, p. 888 [270 P.2d 125], and in Engleman v. Green (Civ. A. 8345), ante, p. 882 [270 P.2d 127], filed concurrently with this opinion, that...
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This is an action in claim and delivery. The plaintiff and appellant is the former husband of the defendant and respondent. Plaintiff, by this action, seeks to recover a piano and bench from the defendant. Plaintiff *893contends that he permitted the defendant to take possession of the piano and bench in order to enable the daughter of the parties to take piano lessons, but that he did not at the ...
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The court feels constrained by the unusual facts of this case and the questions of law involved to state its reasons for reversing the judgment and remanding the case for a new trial. The cause was tried by the court without a jury and the evidence was not reported. The record on appeal includes (■inter alia) an engrossed statement of the evidence, findings of fact, conclusions of law, and ju...
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The trial court, sitting without a jury, tried and adjudged defendant guilty of driving a vehicle upon the highway while under the influence of intoxicating *903 liquor. Imposition of sentence was suspended by the court, and, in lieu thereof, defendant was placed on probation for two years upon conditions which include revocation of his driver’s license for one year and the payment of a $200 fi...
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This is an appeal from a judgment in favor’ of the defendants in a claim and delivery action involving the possession of an automobile. The appellants contend that the evidence is not sufficient to sustain this judgment. The record before this court does not include either a settled statement of facts or a reporter’s transcript, of the oral proceedings before the trial court. Under these circumsta...
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This is an appeal from an order of the trial court cancelling a judgment and writ of execution under the provisions of Code of Civil Procedure, section 675b. This order was in favor of, and relates solely to the defendant, Clifford C. Anderson, who is also known as C. C. Anderson. Hereinafter he will be referred to as respondent, and the plaintiffs will be referred to as appellants. This procee...
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In this action two owners of land within an irrigation district joined with the district in an action brought to obtain mandatory and prohibitory injunctions against defendants, who also owned land within the district. Responsive to the pleadings, the trial court found the following : Provident Irrigation District is and at all times mentioned in the complaint was an irrigation district or...
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In an action for damages for alleged fraud, defendant’s answer alleged the defense of res judicata by reason of three specified actions. Pursuant to section 597, Code of Civil Procedure, this issue was tried separately. Plaintiffs appeal from the judgment in favor of defendant upon that issue on a limited record. Questions Presented Plaintiffs raise many questions, most of which, howe...
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Defendant Alonzo Spencer, appearing in this appeal in propria persona, appeals from judgment after jury verdict finding him guilty of two counts of an indictment that had been returned on October 1, 1953, by the grand jury of the city and county of San Francisco. Count One, on which he was found guilty, charged him with the crime of robbery (Pen. Code, § 211) in that he did on September 16, 1953, ...
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Respondents purchased certain tractors and trailers from appellant on a conditional sales contract *36 for a total price of $26,527, of which $1,027 was paid at the time of execution of the contract on September 29, 1951, leaving a balance of $25,500 to be paid in 51 consecutive weekly installments of $500 each. One of the trailers subsequently was destroyed and appellant, thr...
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Jacob E. Siu, defendant in this ease, was a sheriff’s deputy in Los Angeles County assigned as bailiff to one of the criminal courts. He proposed to a fellow deputy, who was in the sheriff’s narcotic detail, that that deputy supply him with narcotics for sale. Defendant said, “Do you have any connections for narcotics? I want something big. I have a connection that could handle any big quantity w...
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Appellant Witherbee sued plaintiff Finn in the municipal court for rent and caused a writ of attachment to be issued and levied upon three recording machines of plaintiff. Prior to issuance of such writ, Witherbee filed an undertaking on attachment whereby appellants Lumsden and Bobnik as sureties promised to pay all costs and damages that might be sustained by Finn if he should prevail in the at...
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Appellant is an art collector and connoisseur ; respondent is an artist. The connoisseur possessed a collection of rare paintings including one by the master, Leonardo da Yinci, which had been despoiled by time and neglect. It required treatment by an efficient artist for its restoration and for its exhibition with the works of the great master. Appellant employed respondent to perform such servi...
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These consolidated actions to quiet title involve the same legal questions in relation to certain claimed gas and oil interests in real property in Kern County. In the Estribou case the plaintiff alleged that he was the owner of an undivided one-half interest in all oil, gas, and other hydrocarbon substances within or underlying the described land. In the case of L and B Producing and Dril...
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Plaintiff obtained an interlocutory decree of divorce from defendant on March 21, 1951, and it provided that plaintiff be awarded the care, custody and control of their minor daughter, Charlene Marie Smith, then aged about 5 years, “subject to the right of defendant to visit the said child at reasonable times.” This form of order was agreed upon in a property settlement agreement signed by the pa...
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Richard Hanson died intestate and without children on June 18, 1952. Thereafter, his next of kin, referred to herein as the “husband’s relatives,” filed a petition in the probate proceedings, claiming to be the heirs of Richard entitled to the distribution of his estate. This petition was opposed by contestants, all of whom are the next of kin of Richard’s predeceased wife. The administratrix o...
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From a judgment in favor of plaintiffs after , trial before the court without a jury in an action to recover for attorney’s fees, defendant appeals. Facts-. It was alleged in the complaint: Count I, that defendant became indebted to plaintiffs in the aggregate sum of $20,000, on which the balance of $16,200 remained unpaid, for the reasonable value of legal services rendered by plaintiffs o...
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From a judgment in favor of plaintiff in an action to recover wages under section 1194 of the Labor Code, after trial before the court without a jury, defendant appeals.* *86Facts: Plaintiff filed an action for wages under section 1194 of the Labor Code alleging nonpayment for straight time work performed for her first cause of action and requesting double time penalty as provided for in section 2...
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From a judgment in favor of defendants, after trial before the court without a jury, in an action for declaratory relief, accounting and damages, plaintiff appeals. *88 Facts: Magnor Petroleum Company, hereinafter referred to as Magnor, was the holder of certain gas and oil leases located in Los Angeles County. On May 4, 1949, Magnor assigned the oil and gas leases to defendants. At the sam...
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From a judgment in favor of plaintiff after trial before a jury in an action to recover damages for the taking of private property in an eminent domain proceeding, defendants appeal. Facts: The complaint in condemnation filed February 14, 1952 alleged “That the property hereinafter described constitutes a part only of a larger parcel, ’ ’ and the prayer of the complaint asked: “That such seve...
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This is an appeal by the defendants from an interlocutory judgment in condemnation. On February 15, 1952, the city of Pasadena filed condemnation proceedings for the acquisition of certain property in the San Rafael section of the city for a library site. For more than two years prior to filing this action, the board of directors of the city considered various sites in this locality for a ...
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This is an action for damages for personal injuries suffered by a pedestrian when struck by an automobile. The jury returned a verdict for defendant. Defendant appeals from an order granting plaintiff’s motion for a new trial on the ground of insufficiency of the evidence to sustain the verdict. On appeal from such order, the issue is whether there was evidence which would have sustained a judgmen...
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The Attorney General of the United States, as successor to the Alien Property Custodian, brought this action against the city and county of San Francisco for the recovery of taxes for the years 1941-1948, inclusive. These taxes, which he had paid under protest, were levied upon improved real property in San Francisco which the German government owned from April, 1941, to September, 1947, when titl...
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This is an appeal from an adverse judgment denying a writ of mandate following a review of the proceedings before the San Francisco Police Commission in which petitioner and appellant was fined for dereliction of duty. The appellant, a captain in the San Francisco Police Department, was charged with the violation of section 141 of the rules of the department which read: “Section 141 of Rules and R...
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Appellant was tried before a jury on six counts—counts 1 to 4, possession of narcotics in violation of section 11500 of the Health and Safety Code; count 5, maintaining an establishment where narcotics were unlawfully sold, given away or smoked in violation of section 11557, Health *120and Safety Code; and count 6, possession of a firearm capable of being concealed on the person by a noncitizen. A...
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On May 25, 1948, respondent bank obtained a judgment in the Municipal • Court of the City of Los Angeles against appellant on a promissory note. A motion for new trial was denied on September 7, 1948, no appeal was taken, and the judgment became final. Thereafter, on September 24, 1948, appellant filed in the superior court a new suit in equity praying that the municipal court judgment be ...
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Leonard Daniel Mahan, James Bartley Carrigan and Don Eugene Hall were charged by information with the offenses of kidnaping for the purpose of robbery, and with armed robbery. They were found guilty by a jury. Mahan’s motion for a new trial was denied and he appeals from the judgment and the order denying him a new trial. Appellant says “The record in the instant case may be likened to a strange a...
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This is an appeal by plaintiff from an order denying the motion to vacate her default and to set aside the ensuing decree of annulment. The parties intermarried on July 31, 1952, and less than two months thereafter, on September 16, defendant husband herein filed an action for annulment on the ground that at all times after the marriage ceremony plaintiff herein refused to consummate said marri...
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Defendant was convicted by a judge of the superior court of two counts of first degree robbery. He admitted a prior conviction of grand larceny, for which he served a term in the penitentiary in Virginia. After the crimes in California, he went to Louisiana and was there convicted of armed robbery. When he was released from the Louisiana penitentiary he was brought back here for trial. *145 D...
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In 1950 defendants commenced subdividing operations on 36 acres of unimproved hillside ranch land located in the North Hollywood section of Los Angeles. Vineland Avenue is adjacent to defendants’ subdivision and is the last improved street prior to defendants’ development. Plaintiff’s home is on the southeast corner of Vineland Avenue and Fruitland Drive, which latter street deadends at this in...
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Appeal from judgment of dismissal after demurrers, general and special, had been sustained and plaintiff had declined to amend its second amended complaint, herein referred to as complaint. The complaint is by a nonprofit, charitable corporation against its former directors for damages resulting from “dissipation of its assets through illegal and speculative transactions and mismanagement ...
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Appellant was charged with the crime of manslaughter as defined in section 192 of the Penal Code, it being alleged in the information that “on or about the 21st day of June, 1953, in the County of Mendocino, State of California, said defendant did then and there, unlawfully, feloniously and without malice, kill two human beings, to wit, Vernon Newbury and Evelyn Laura Cass Newbury, in the driving...
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This action was brought by plaintiff Letty Bolton, and by her husband, Ray Bolton, for damages for the serious injuries received by Mrs. Bolton when hit by an automobile driven by defendant George Soares, who was, at the time, acting in the course and scope of his employment with the other defendants. The pleadings presented the issues of the negligence of Soares and the contributory negligence...
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This is an appeal from a judgment for $37,500 entered upon a jury verdict in favor of the plaintiffs. The cause of action was based on misrepresentations made by defendants in connection with a sale of a business. Appellants Charles and Sidney Schonfeld sold to respond *188 ents all the stock in the Lincoln Bowl, a corporation, which operated a bowling alley at 319 Sixth Avenue in San Francis...
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This is an action for personal injuries caused to plaintiff when as a pedestrian she was struck by defendant’s car. The verdict was for defendant and plaintiff appeals from the judgment entered thereon. *192 The accident happened on March 16, 1952, at 5:45 p. m. at the intersection of Dana Street and Parker Street in Berkeley. Dana Street runs north and south, Parker Street, east ...
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This is an action on an oral agreement to leave property to plaintiff in consideration of services to be rendered and in quantum meruit, instituted against the executor of the estate of one of the promisors. The court by order of May 20, 1953, sustained a demurrer to plaintiff’s second amended complaint without leave to amend. Notice of appeal from said order was filed on July 10, 1953. On Octo...
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This is an appeal by defendant Howard Watkins from a judgment of conviction on two counts of an information after trial by the court sitting without a jury. Appellant pleaded not guilty to the three counts of the information. He was acquitted on Count 2 and found guilty on Counts 1 and 3. An information filed by the District Attorney of the City and County of San Francisco charged Howard Watkin...
Views: 9
This appeal is from an order denying a petition for coram nobis which sought the vacation of a judgment of conviction of violating section 288, Penal Code. The *209 appeal has been well briefed and argued by counsel appointed by this court at appellant’s request. The sole ground relied upon is that the failure of the trial court to require a report of the probation officer before sentencing a...
Views: 11
The complaint in this action contained nine separate counts in each of which the plaintiff named therein brought action against C. R. Burton and Local Union *211No. 118, Bridge, Structural and Ornamental Iron Workers, a labor union. All of the counts concern the same general subject matter and the substantial allegations thereof may be stated as follows: The plaintiffs were all members of either t...
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The defendant was charged with possession of marijuana in violation of section 11500 of the Health and Safety Code. He was further charged with a prior conviction of the crime of smuggling and concealing marijuana, on which he served a term in a federal prison. The public defender was appointed to represent him. He pleaded not guilty, and admitted the prior felony conviction. The jury found him gu...
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Plaintiffs brought this action against the owners and lessors and the lessees and operators of a certain rock quarry, to enjoin further operation of the quarry and to obtain declaratory relief. It appears that on July 2, 1951, the board of supervisors of the county adopted, as an immediately effective urgency measure, an ordinance which in a certain zone required a permit for the erection ...
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Roy E. MacArthur and Raequel Gatica were charged with two violations of section 11500 of the Health and Safety Code, the first count charging the unlawful possession of heroin on April 22, 1953, and the second, the unlawful possession of marijuana on the same date. The defendants were tried together. MacArthur, the sole appellant, was found guilty on the heroin count and not guilty on the marijua...
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Plaintiff filed her complaint for divorce against defendant on February 15, 1949. On March 7th of that year, they entered into a property settlement agreement. The preamble of that document recites their “desire to make provision for the custody, care and support of their two minor children and to settle the rights and claims of each in and to the community property . . . and separate property” o...
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This is a suit by the payees of a promissory note against the maker. From a judgment for defendant, on the ground that there was no consideration for the note, plaintiffs appeal. In January, 1951, defendant Jim Wood and plaintiff Murphy discussed informally the acquisition of an automobile dealership. Wood was district manager for the DeSoto Motor Corporation. Murphy was an automobile dealer in Cu...
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Plaintiff commenced an action against Howard E. Marks, Prank B. Marks, Sr., Prank B. Marks, Jr., and Roger Paul to recover damages for fraudulent representations, alleged to have been made by defendant Howard E. Marks and his agent, defendant Paul, in connection with the sale of a tractor purchased by plaintiff. Defendants filed an answer denying the material allegations of the complaint and al...
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By an information filed by the district attorney of Los Angeles County, defendant was charged with one count of burglary and five counts of receiving stolen property. The crimes set forth in the six counts of the information were alleged to have been committed on various dates between October 15, 1951, and March 30, 1953. Count I alleged that defendant burglarized a market and stole an adding mac...
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Twelve sets of plaintiffs, each set consisting of a husband and wife, brought these actions against Max Schmidt and others for fraud, and for breach of contract. The other named defendants were granted a nonsuit, the propriety of which is not involved on this appeal. The husband plaintiffs, all veterans, and their wives, had purchased homes from Schmidt, constructed by him in San Mateo County. ...
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This is an appeal from a judgment of the Superior Court of San Francisco after jury verdict in favor of plaintiff and respondent in the sum of $75,000, and against appellant Margaret M. Maus, an incompetent person. Respondent, Edmond Trainor, sustained permanent brain damage and disability as a result of a fall over the banister and onto a concrete areaway below on the premises of an apartment ho...
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This is an appeal by defendants, The Atchison, Topeka and Santa Fe Railway Company and William M. Floyd, an employee of said company, from an order granting plaintiff a new trial in an action for personal injuries. On January 11, 1952, shortly after 9 :30 a. m. plaintiff and respondent, Dewey Deshotel, was seriously injured as a result of a collision between the Yellow Cab in which he was ...
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The complaint is titled, “Complaint for Specific Performance of Contract and to Enforce a Trust and Accounting and, in the Alternative, for Damages and for Other Relief. ’ ’ Plaintiff sought a decree as follows: declaring that defendant holds in trust for plaintiff % of 1 per cent of all oil and gas produced from certain land under a leasehold interest of defendant; compelling defendant to perf...
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This is an action for damages for injuries to Mrs. Ashley, alleged to have resulted from the slipping of a rug in the home of the defendants. The accident occurred on January 1,1951. Mr. Ashley is the pastor of a church in Compton. He was formerly the pastor of a church in San Diego which is attended by the defendants. This San Diego church had acquired a parcel of land and Mr. Jones was c...
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Mervin L. Gardner was awarded the principal contract to construct a school. The contract, among other things, required Gardner to furnish a specified quantity of specially designed concrete. This portion of the contract was subcontracted to the Fergusons, who agreed with Gardner to furnish the required concrete at $15.50 per cubic yard. After supplying a small quantity of the concrete, for whic...
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In an action to reform a deed and to quiet title, defendant appeals from a judgment in favor of plaintiff. Questions Presented 1. Sufficiency of the evidence. 2. Sufficiency of complaint. 3. Is the action barred by section 338, subdivision 4, and section 353, Code of Civil Procedure? 4. Admission of oral testimony. 5. Was administrator incompetent to testify? ...
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In the Superior Court of Alameda County appellant was charged in an information with two felony counts: (1) assault with a deadly weapon with intent to commit murder on Sammie L. Boykin; (2) a similar assault on Rosa Lee Boykin. A prior felony conviction of burglary in the state of West Virginia was also charged. While represented by the Public Defender of Alameda County, appellant pleaded guilty...
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This is an appeal from a judgment entered in a proceeding for injunction and writ of mandate. The judgment commanded appellants to abandon their announced intention of holding an open examination for the civil service position F 50 Maintenance Chief, San Francisco Airport, and commanded appellants to hold a promotional examination from the class F 52 Crew Chief for such position. Appellants are...
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In an information filed October 7, 1953, the appellant was charged with three counts of forgery of fictitious name in reference to the passing of certain fictitious cheeks, with intent to cheat and defraud named victims as follows: Count One, Maurice Harz, California Surplus Outlet and Pasadena First National Bank, $59.06; Count Two, M. G. Gusty, Sundries Fountain and Pasadena First National Bank,...
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Plaintiffs take this appeal from a judgment of dismissal entered upon demurrer sustained without leave to amend. *371 Only very few facts need be stated in order to present the question to be determined. The action is one against the county of Los Angeles. The complaint alleges that on Feb. 26, 1952, plaintiff Anna W. Hochfelder, a county employee, was injured while engaged in her...
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Defendant was convicted of violating sections 288 and 288a, Penal Code. He appeals from the ensuing judgment on the ground of the insufficiency of the evidence. The victim, a newsboy 11 years of age, was folding his newspapers, at about 6 o'clock Sunday morning, July 13, 1952, in the vicinity of the 1000 block on North San Fernando Road, Burbank, in preparation for delivering them, when defenda...
Views: 9
This is an action in unlawful detainer in which plaintiff (lessor) recovered judgment against the defendants (lessees) for possession of the leased property, the amount of rent found to be due, damages for detention, attorney’s fees and costs. The lease, executed October 17, 1951, was for a period of three years and the property involved consisted of 124 acres of farm land in San Diego County. It ...
Views: 2
Plaintiff commenced an action against defendant to restrain defendant from using a road on the land owned by plaintiff and her husband as joint tenants, and for damages for alleged trespass by defendant. Defendant filed an answer claiming that she owned an easement over plaintiff’s land and also filed a cross-complaint seeking to quiet title to the claimed easement. At the conclusion of the tri...
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Separate grand jury indictments were returned against defendants and appellants Lowell Dwayne Hooker, Jack Lee Thompson and Jack Leimas, charging in count one that each conspired with the other named appellants and defendant Richard Earl Burson to steal a Lincoln automobile. In a second count each was charged with grand theft of the same car. Pleas of not guilty were entered and by stipulation th...
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Appellant is the owner of Lot 200 as laid out by the Tide Land Commission of the State of California in 1872, as shown on a map prepared by said commission and recorded in Marin County in Book 2 of Maps, page 32. The southerly line of said Lot 200 is the northerly line of Johnson Street as laid out by said Tide Land Commission. Lot 200 and Johnson Street as so laid out are a part of the submerg...
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Apellant was convicted by a jury of violating section 11500, Health and Safety Code (possession of marijuana). He appeals from the judgment of conviction and the order denying his motion for new trial. On Septembr 23, 1953, one McClendon met appellant and one Perez at about 11 ;30 p. m. in a tavern in Salinas. Appellant invited McClendon to “go out and have some fun.” The three got into McClend...
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On August 5, 1952, Jewell Chambers appeared at the used car lot of California Car Company. She said she wanted to buy an automobile. She looked over the *411cars on the lot, and decided she would buy a 1949 Cadillac sedan. California Car Company was the registered and legal owner of the car. The purchase price and monthly payments were agreed upon. The down payment was to be $800. Jewell Chambers ...
Views: 0
In this proceeding in mandate the judgment directs the city of Long Beach and certain individuals in their respective capacities to take the necessary action for and to make payment of certain sums accrued and to accrue under the pension rights of petitioners as the surviving wife and minor daughter of Henry W. English, deceased, who was a patrolman in the police department of the city. (Stats....
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This is an action for dissolution of a joint venture, for an accounting, and for declaratory relief. On November 12, 1951, these parties entered into a construction contract under which the plaintiff, as contractor, agreed to build an 8-unit apartment house on “Law Street” for the defendants. Construction started in February, 1952, and was completed in September, 1952. That project is not directly...
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Plaintiff appeals from a judgment denying him any relief on his complaint and awarding defendant $1,900 on his cross-complaint. Appellant is in the business of manufacturing fruit baskets. In August, 1946, appellant employed respondent to determine whether a machine could be designed which would assemble fruit baskets with tin protected edges. As a result of the report made by respondent t...
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Desiring to sell his real property, consisting of 480 acres, the entire town of Stanfield, Arizona, respondent, Earle Ellsworth in January, 1950, listed the property with Hapeman-McDonald, real estate brokers, in Riverside, California. Shortly thereafter appellant, a real estate broker licensed in California, but not in Arizona, learned of the listing, advertised the property and made efforts t...
Views: 5
The question for decision is whether the son of a deceased employee of the city of Los Angeles, under the age of 18 years who has been adopted by his stepfather, is still entitled to a pension as the orphan of such deceased employee. One Joseph William Kacl was employed by the city as a fireman and was a member of the fire and police pension system. He was killed in the performance of his dutie...
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This is an appeal from the “judgment and sentence rendered against” the defendant, and from the order denying the motion for a new trial. There can be no appeal from the sentence, and this purported appeal must be dismissed. (People v. Broady, 120 Cal.App.2d 901, 902 [262 P.2d 669]; People v. Millum, 42 Cal.2d 524, 525 [267 P.2d 1039].) *454 On a Sunday in October, 1953, one Sam Kat...
Views: 6
This is an action for declaratory relief. Judgment was entered in favor of plaintiff, and defendant County of San Diego appealed. The sole question here presented is whether or not the Board of Supervisors of San Diego County has a duty, under sections 200 and 2500 of the Welfare and Institutions Code, to provide relief to the plaintiff, a needy Indian, and other Indians in like circumstances l...
Views: 6
These two actions for damages for malicious prosecution were consolidated for trial and, in a trial by jury, judgments were for plaintiffs. Defendant appeals from the judgments and the orders denying his motions for new trials. Plaintiff Samuel Bernstein (referred to herein as Samuel) and defendant Maimes had been acquaintances about 15 years. In the view of the evidence most favorable to plain...
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Action to set aside a deed upon the ground that it was procured by duress. Defendant appeals from judgment in favor of plaintiff. Plaintiff and defendant were married in 1945, and at that time plaintiff owned certain real property as his separate property. On March 10, 1947, defendant caused a complaint to be filed by the district attorney charging that plaintiff assaulted defendant on March 8, wi...
Views: 0
Plaintiff, Sam Dolberg, was driving his Chevrolet panel truck across the right of way of defendant, Pacific Electric Company, when he was struck by defendant’s two-car electric train. Plaintiff’s action for damages, tried by a jury, resulted in a verdict for defendant. The trial court determined it was error in law to have permitted testimony of statements made by the motorman of defendant’s tr...
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While driving his automobile in the city of Frederick, Maryland, on July 9, 1952, appellant Peter L. Hernandez, a resident of Los Angeles, sustained personal injuries as a result of a collision between the vehicle he was operating and a large milk truck and trailer purportedly owned and operated by the respondent, Chestnut Farms-Chevy Chase Dairy Company. The appellant instituted this acti...
Views: 1
Alice Evelyn Fowler, the defendant and cross-complainant, has appealed from the interlocutory decree of divorce, except those portions thereof by which she was adjudged entitled to a divorce, awarded the custody of the minor daughter, and awarded from the community property the household furniture and furnishings and two insurance policies. In the interlocutory decree there remains subject to thi...
Views: 0
Plaintiff brought this action for damages occasioned by a fall he sustained while employed as an iron worker on the Statler Hotel building in Los Angeles. Defendants were A. J. Bayer Company and Robert E. McKee, the general contractor. A judgment of nonsuit was entered upon defendants’ motion. Plaintiff appeals from the order, which is a judgment. (Costa v. Regents of University of Cal. 103 C...
Views: 3
This is an appeal from a judgment of $15,000 and interest upon the verdict of a jury in an action to recover upon a real estate brokerage listing. The document signed by the parties conformed to the California Real Estate Association standard form and so far as material to this appeal reads as follows: “In consideration of the services of W. B. Griffiths Company, hereinafter called broker,...
Views: 4
In this action for breach of contract, with a cross-complaint raising issues of fraud and misrepresentations, plaintiff appeals from an adverse judgment. By his amended complaint, plaintiff sought damages based on defendant’s alleged breach of a contract relating to the drilling of an oil well known as the Fitzhugh-Wilhite No. 10 (hereinafter referred to as Well No. 10). Plaintiff alleged ...
Views: 6
This is a proceeding to determine heirship and was brought pursuant to the provisions of section 1080 of the Probate Code. The petitioners, Calvin Hall Gibson, *535 Holt Thomas Gibson and Willis A. Gibson, adult sons of C. T. Gibson, deceased, and Helen Oreleane Mayo, daughter, allege that they are the heirs of said deceased; that the estate was the separate property of the decedent at the time...
Views: 0
There is some confusion whether the complaint states a cause of action for breach of an oral agreement or whether it states a cause of action for damages for fraud. Plaintiff labels it “Complaint for Fraud” and alleges that defendants A. H. DeWitt and Katherine DeWitt, doing business as Creamers Dairy and Central Valley Creamery, entered into an oral agreement whereby defendants agreed to pay p...
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This is an appeal from a judgment in favor of plaintiff as administrator of the estate of T. W. Caldwell in which the plaintiff was decreed to be entitled to the proceeds of a promissory note secured by a deed of trust. The note had been paid by cross-complainant T. B. Caldwell to the San Jose Abstract and Title Insurance Company who along with Viola Lester complete the number of parties to thi...
Views: 23
This is a petition for a writ of review in which petitioner Pacific Gas and Electric Company seeks to review an award of the Industrial Accident Commission of 77 per cent permanent disability to its employee, Edwin C. Burton, for an injury sustained in the course of his employment. On July 6, 1942, Burton was awarded partial permanent disability indemnity against the Associated Indemnity Corpor...
Views: 10
Appellant was charged in one indictment (No. 46039) jointly with certain occupants of room 417 of the Graystone Building at 948 Market Street in San Francisco in four counts. Count 1 charged a conspiracy of the defendants to violate section 337a, Penal Code. Count 2 charged the defendants with the substantive offense of pool selling and bookmaking on or about June 23, 1951 (a violation of Pen. Co...
Views: 8
Herman L. Rowley died on February 19, 1951. His holographic will was admitted to probate on March 26, 1951. On December 21, 1951, petitioners herein, who were not named as beneficiaries in the will, filed a petition for a decree determining heirship, and they alleged that they were first cousins of decedent and entitled to all his estate. 9 Under the decree, it was determined that the devisee...
Views: 1
Henry B. Crowder was accused of four offenses of forgery and having waived trial by jury was convicted of three offenses. The instruments allegedly forged were four checks drawn upon the bank account of defendant’s wife. Upon this appeal from the judgment appellant argues the insufficiency of the evidence to prove criminal intent and that it was error to permit his wife to testify against him. ...
Views: 11
The defendant was charged with the crime of escape from a county hospital, in violation of section 107 of the Penal Code, and was further charged with three prior convictions. He admitted the prior convictions, and pleaded not guilty and not guilty by reason of insanity. He later withdrew the plea of not guilty by reason of insanity, and waived a jury trial. The court found him guilty as charged,...
Views: 0
On September 23, 1952, plaintiff filed an action, No. 176019, against Anna K. Ott alleging in count one that defendant became and is indebted to plaintiff in the sum of $15,000 for and on- account of money had and received by her for the use and benefit of plaintiff, and in a second count that defendant' appropriated and converted said sum to *591her own use. On November 12, 1952, plaintiff filed ...
Views: 3
Declaring that it was impossible to continue to live together as husband and wife, respondent commenced an action against appellant for divorce on October 1, 1952. In her complaint she alleged that certain real property known as 14041 Roblar Road, Sherman Oaks, California, was community property. Her specific averment in that regard was “that the title to said property stands of record in the n...
Views: 3
This is an appeal by plaintiff from an order granting defendants Gaylord Burke and Robert P. Burke a new trial after judgment for plaintiff. The matter was tried by the court without a jury. Defendants did not take a cross-appeal from the judgment. The action is for damages for constructive eviction of plaintiff, lessee of the premises here involved. The complaint recites that on April 26,...
Views: 5
On June 30, 1952, Arno Hiehle brought an action against Torrance Millworks, Inc., and defendants Archer and Glaser (hereinafter referred to as defendants), seeking to recover monies advanced by him to the corporation, $8,000 of which was represented by a promissory note of the corporation. On or about September 4, 1952, the corporation was adjudicated a bankrupt on its voluntary petition. On No...
Views: 9
This is an action for damages arising from an automobile collision. A jury returned a verdict in favor of the defendant and the plaintiff has appealed from the judgment. The accident occurred about 9 a. m. on October 17, 1951, at the intersection of Ash Street and Cabrillo Freeway in *632San Diego. This freeway runs north and south, having two lanes for southbound traffic which are separated from ...
Views: 0
Action for damages resulting from burns received by the minor plaintiff when a smoke-producing device, used by her in a dancing act, set fire to her dress. In a trial without a jury, plaintiffs obtained judgment against defendants Abbott and Bordner, individually, and against defendants Abbott and Bordner doing business as Abbott’s Magic Novelty Company. Those defendants appeal from the judgment....
Views: 3
Appellant sought to recover damages for personal injuries sustained during the course of his employment as a member of the crew of the " Sea Rose, ’ ’ a commercial fishing vessel owned and operated by the respondents. His action was brought in state court pursuant to provisions of the Jones Act (46 U.S.C.A. § 688). Upon completion of appellant’s presentation, the trial court granted respondents...
Views: 8
The complaint herein contains three causes of action: (1) Specific performance of an oral agreement under which plaintiffs claimed a joint venture with defendants, by reason of which the latter were required to convey to each plaintiff a one-tenth interest in a certain 1 per cent royalty interest purchased by the Kern Drilling Corporation *652from one Heller. Alternatively, and as respondents alle...
Views: 0
On April 18, 1951, annexation proceedings, under the provisions of the Uninhabited Territory Act of 1939 (Gov. Code, §§ 35300-35326), were completed by the city of National City, a municipal corporation of the sixth class, annexing thereto certain territory known as “Rancho Mesa.” Thereafter, within two years, petitions were filed pursuant to the provisions of section 35561.1 of the Government ...
Views: 5
Defendant, who was represented by an attorney at all stages of the proceedings, was convicted by a jury of the crime of violating section 476a of the Penal Code in issuing and passing a check in the sum of $61.50 on the Lovely Lady Shop, in Colton, without having any funds in the bank to meet the check at the time. He admitted two prior convictions of felonies. About 5:30 p. m. on October 19, 1...
Views: 4
Appeal by plaintiff from an adverse judgment in an action for breach of contract and conversion. The litigation arose out of an accounting for 103 television sets returned by plaintiff to defendant Kaye-Halbert Corpora *667 tion. The issues are between plaintiff and defendant KayeHalbert Corporation, referred to as defendant. Defendant is a California corporation manufacturing...
Views: 1
This is the second appeal in an action for declaratory relief. The first amended complaint filed November 30, 1949, alleged eight causes of action. In the first appeal, this court reversed a judgment of dismissal rendered by the superior court. (See Wilson v. Los Angeles County Civil Service Com., 106 Cal.App.2d 572 [235 P.2d 620], for an analysis of said eight causes of action.) After th...
Views: 2
Defendant appeals from a default judgment which awarded plaintiff a divorce, custody of a 5-month-old child, $75 per month for support of the child, $1.00 per month for her own support, attorneys’ fees and costs, and the community property, consisting of $350 worth of furniture and a life insurance policy for $1,700. He also appeals from an order denying his motion to vacate his default. A...
Views: 2
Appeal by plaintiff from a judgment entered on the sustaining of a general demurrer to the first amended complaint without leave to amend. Respondent is William A. Burkett, Director of Employment, successor since November 15, 1953, to James G. Bryant, as Director of Employment. The action is to recover state unemployment insurance taxes allegedly illegally exacted during the period January 1, 1...
Views: 1
Appeal by plaintiffs from an order granting a motion to discharge an attachment. Plaintiffs had filed a verified complaint for breach of a written contract, and an affidavit for an attachment. The writ was issued and levied. Defendant moved to discharge the attachment. He did not file a counteraffidavit. His motion was made on the ground the attachment was improper under sections 537 and 538 of...
Views: 2
In an information defendant was charged with grand theft and a prior conviction of grand theft and issuing a check without sufficient funds. The court found him guilty of grand theft and that the alleged prior conviction was true. He appealed from the judgment. Appearing in propria persona he asks for a reversal “Due to the innumerable errors, based on delay, and a verdict passed on the findings ...
Views: 10
Plaintiff’s complaint entitled “Action in Assumpsit” alleges that on February 20, 1952, defendant was indebted to plaintiff in the sum of $20,235.84, for monies received by defendant for use of plaintiff, and that defendant promised plaintiff to pay him said sum of money on request. Defendant denied generally the allegations of the complaint. After trial by the court judgment was entered for pl...
Views: 2
The will of Wayland B. Hout, who died in the county of San Diego April 23, 1953, was entirely in the handwriting of the decedent, with the exception of the names and addresses of the subscribing witnesses, and is as follows: “My Last Will and Testament op Wayland B. Hout. “I Wayland B. Hout a resident of San Diego County, State of California, being of sound mine and not acting under dures...
Views: 0
Plaintiff brought this suit to compel transfer to it of 6,100 shares of common stock in Southwest Products Company, herein referred to as Southwest. Plaintiff appeals from an adverse judgment. In 1946 defendants Hackman and Potter organized Southwest. Each had 3,050 shares of its common stock out of a total of 9,600 shares. All of the stock was ordered held in escrow by the corporation com...
Views: 0
Plaintiff appeals from an adverse judgment rendered by a jury in favor of defendants as a result of claimed injuries plaintiff suffered while riding as a passenger on defendants’ bus. Plaintiff boarded the bus in downtown San Diego and all seats were taken. She was carrying a purse and some bakery goods in two separate packages in her arms. She took hold of a railing immediately to the rea...
Views: 4
An employee who had received an award for permanent disability amounting to 60 per cent filed an application against the Subsequent Injuries Fund, alleging that the 60 per cent disability together with a preexisting permanent disability amounted to a total disability in excess of 70 per cent. The fund contested this claim. The employee successfully proved it. In making its award against th...
Views: 0
Convicted of violating section 288 of the Penal Code, defendant Orlando C. Boone has appealed from the judgment. He claims insufficiency of the evidence, errors in the admission of .evidence and instructions to the jury, and misconduct of the district attorney in his opening statement and in his argument to the jury. 1. Sufficiency of the Evidence Defendant claims there was a failure to pro...
Views: 4
The facts, upon which this appeal must be decided, are quite different from those discussed in the briefs of appellant and respondent, because of the inadequate record on appeal, from which has been omitted the pleadings, evidence, oral proceedings upon motions, and even the judgment. The clerk’s transcript discloses a “Stipulation for Judgment” executed by the attorneys for appellant and responde...
Views: 3
Alfred G. Blair and Susan Ann Blair were married June 30, 1915. Each of them had been married before, their first spouses having died. And each of them owned separate property at the time of their marriage. The husband and wife lived in California until Mr. Blair died in 1950, and Mrs. Blair in 1951. She left no will. And it may fairly be inferred from the record that from the time of her husba...
Views: 5
In the first of two informations filed by the district attorney of Los Angeles County, defendant was charged with forgery of a check in the amount of $400, with intent to cheat and defraud Louisa A. Delaney, and the Bank of America, while the second information charged the defendant, jointly with Forrest Jameson, with the crime of grand theft of the sum of $1,000 from Frank Earl Simmons. To each ...
Views: 12
Plaintiff brought this action seeking damages for alleged fraud in the sale of a parcel of real estate to her by Bess Tate Ayres. In addition to defendant Ayres several others alleged to have acted as brokers for the seller were named as defendants. In substance the alleged fraud consisted of representations that the property was worth much more than plaintiff paid for it, was actually worth cons...
Views: 1
Defendant was charged with burglary in violation of section 459 of the Penal Code in that on or about the 9th day of July, 1953, he entered the residence of one Linda Starr Utley, in El Centro, with intent to commit theft, A jury trial was had and a verdict of guilty returned, in which the jury found the degree to be burglary in the second degree. Motions for a new trial and in arrest of judgment...
Views: 11
In an information filed by the district attorney of Los Angeles County, defendant was charged in Count I with the violation of Penal Code, section 337a, subdivision 1; in Count II with the violation of subdivision 2 of the same code section; and in Count III with a violation of subdivision 4 of the aforesaid section. Trial by jury was duly waived. Evidence was presented to the court by the People...
Views: 9
The estate of Lucretia W. Foley was distributed by the court in probate pursuant to the provisions of the will of decedent. Among the assets was the sum of about $8,000 which was distributed one-half to the brother of Lucretia and members of his family1 and one-half to the living children of John L. Foley, surviving husband of Lucretia. John died seven months after the death of Lucretia and left s...
Views: 0
This action, commenced by plaintiff, is in equity, for declaratory relief, an accounting, to quiet title, and for damages. The appeal is on the judgment roll alone. Only the pleadings, findings and judgment will therefore be considered since it must be assumed that the evidence was sufficient to support the findings. (3 Cal.Jur.2d 798, § 267.) Plaintiff Mary Z. Dunlop and her husband ...
Views: 2
Prohibition to restrain the superior court from executing an order sentencing petitioner to jail for five days on each of three convictions of contempt. The proceeding in contempt was initiated by affidavit of Jeanne deKolty Warner. It alleged that on April 18, 1950, in an action for divorce between the affiant and petitioner herein, Caryl Warner, petitioner was ordered to pay for the support o...
Views: 16
Plaintiff (appellant) brought this action for damages for personal injuries, for property damage, and for damages suffered through the death of her husband. The injuries and death occurred while plaintiff and her husband were riding in an automobile driven by the husband. The ear came into collision with a car operated by defendant (respondent) at an intersection of a through highway, on which ...
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The questions involved on the appeal are the same as those decided in our opinion in English v. City of Long Beach, Civil No. 20020, ante, p. 414 [272 P.2d 875] this day filed. Plaintiffs, 22 in number, are either widows or children of deceased members of the Police or Pire Departments of the City of Long Beach. Each of them has been granted a pension pursuant to section 187, subdivision 4 of the ...
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Plaintiffs, 10 in number, recovered judgment for money and for declaratory relief such as was granted in Combs v. City of Long Beach, Civil No. 20337, ante, p. 841 [272 P.2d 880], this day decided. Five of the plaintiffs are retired members of the Police or Fire Departments of the City of Long Beach; three are widows of deceased members of one- or the other of the departments; two are minor childr...
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Plaintiffs, 211 in number, have heretofore been granted retirement or disability pensions by the City of Long Beach. A several judgment was entered which awarded to each of the plaintiffs the difference between the amount of monthly pension calculated at a percentage of the respective salaries attached to the several ranks or positions formerly held by plaintiffs as of June 5, 1951, and the increa...
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The only notice of appeal in this case states that it is taken “from the judgment entered in above entitled matter on January 13, 1954.” The action taken by the trial court on that date was to find the defendant guilty and summarily grant probation. Among other terms of the probation, the trial court imposed a fine of $500 and required that the defendant serve the first 10 days of his three-year ...
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In this action, plaintiff recovered a judgment in the sum of $3,000 against the defendants Stanfel and Double Play Tavern for injuries she received by being struck by a baseball thrown by a player on a baseball team sponsored by the defendants. Defendants appeal, contending, first, that the player was not the agent or servant of defendants, and, second, even though this relationship might be assum...
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The complaint in this action alleges plaintiff was insured by defendant on March 3, 1946, against certain damages to plaintiff’s automobile, and that such damages were incurred by him in an accident in which his automobile was involved on January 17, 1947; that such insurance was operative “... . during the term between March 3, 1946 and September 3, 1946. For a valuable consideration it was ag...
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William J. Croxson brought suit against Steva M. Croxson for divorce, charging cruelty. Mrs. Croxson answered and filed a cross-complaint for separate maintenance charging cruelty. Upon plaintiff’s application Mrs. Croxson and certain banking and investment institutions were ordered *51to show cause why Mrs. Croxson should not be enjoined from disposing of community property except in the ordinary...
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