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All Reporters → cal-lexis → Volume 1893

Opinions in cal-lexis Volume 1893

This is an appeal by defendant from a judgment in favor of plaintiff in a street assessment case, arising in the city and county of San Francisco, and from an order denying a new trial. There are only two points made by appellant which need special notice. 1. Appellant’s counsel contends that the record shows a written protest by a majority of the frontage of the property fronting on the proposed ...
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This is an action to recover damages for personal injuries received by plaintiff upon the defendant’s platform at Reed’s Station, Marin County. The jury returned a verdict in favor of plaintiff for the sum of seven thousand five hundred dollars, and judgment was entered accordingly. Defendant appealed from the judgment, and from an order denying its motion for a new trial. The plaintiff testified ...
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Action to foreclose a street assessment, made for sewer-work done in the city and county of San Francisco, under the street law of 1885. The appeal is prosecuted from the judgment and order denying a new trial. No demurrer was interposed to the complaint, and the judgment is supported by its allegations. The contract provided that eight hours should constitute a legal day’s work for all persons em...
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The plaintiff brought this action under the provisions of section 137 of the Civil Code to recover permanent alimony from the defendant without seeking a divorce. The complaint is framed with two counts, but as a demurrer to the first count was sustained, and the cause was tried upon the issues presented by the answer to the second count, only the matters therein alleged can be considered. The cou...
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This is an action of unlawful detainer. Judgment was entered in favor of the plaintiff for the sum of $540, and costs of the action; the defendant moved for a new trial, which motion was denied, and thereupon he appealed to this court from the judgment, and from the order. The principal point made on this appeal is, that the respondent, being a married woman, cannot recover,—that the rents, if any...
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The defendant is a municipal corporation composed of the inhabitants of a city in Humboldt County. The action, which is for the value of legal services performed at San Francisco, was commenced in the superior court of the city and county of San Francisco. On motion of defendant, the court made an order changing the place of trial of the action to Humboldt County. The plaintiff appeals from this o...
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This action was brought to set aside a transfer of certain real estate, valued at one hundred thousand dollars, alleged to have been procured by defendant from his mother through the exercise of undue influence and artful schemes. *142The case is before us on the judgment roll alone. The court found the facts to be as follows: The plaintiff— now an incompetent person, represented by her guardian —...
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The defendant entered into a written agreement with plaintiffs, by which he agreed to execute to them on or before December 1, 1888, a conveyance of certain described lots which would vest in plaintiffs “ a good and perfect title ” thereto, provided that plaintiffs should, on or before that date, pay the sum of $8,675, the balance of the purchase price agreed to be paid for such lots. The plaintif...
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The findings of the court below disclose the nature of the action and relief sought. They are, in substance, as follows: In October, 1875, the plaintiff executed and delivered to McKinley, Glenny, and Latham conveyances of certain real estate, comprising 20,041 acres, undivided, in a larger tract of 86,000 acres, situated in the counties of Kern and Tulare, and at the same time conveyed certain ot...
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The plaintiff appeals from a judgment of nonsuit, and an order denying her motion for a new trial. The action is to recover damages against the defendant for its alleged negligence in causing the death of George A. Holmes, Jr., of whose estate the plaintiff is administratrix. The evidence given upon the trial shows that defendant was, on May 19, 1889, operating a double-track railroad on Encinal A...
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The defendant, on the second day of December, 1890, shot and killed William N. Shenton, at the town of San Rafael, in Marin County. On the 29th of December, 1890, F. M. Angellotti, then district attorney of said county, filed in the superior court an information charging the defendant with the crime of murder, and also charging him with a prior conviction of murder in the first degree, which it wa...
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Upon further consideration of this cause, after hearing in Bank, we are satisfied with the conclusion which was reached by Department One in its opinion filed September 2, 1892, and for the reasons stated in said opinion, the judgment and order appealed from are affirmed. The following is the opinion above referred to: — Temple, C. This is an appeal taken from a judgment of foreclosure by one of t...
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The court below sustained the demurrer to the complaint, and plaintiff declining to amend, judgment, from which defendants appeal, was rendered for plaintiff. The action is in the nature of a proceeding in rem against certain animals, undér an act of the legislature, approved February 4, 1874, concerning animals trespassing upon private property, which was made applicable to several counties, incl...
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This is an action to "recover from the defendant Busch the value of certain work and labor, and to foreclose a laborer’s lien for the same upon the property of defendant Boone. It is alleged in the complaint that at all the times named therein the defendant Boone was the owner and reputed owner of a described lot of land in the city of San Diego, with a frame dwelling-house thereon; that on a day ...
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Action for a divorce on the ground of extreme cruelty. A divorce was granted on that ground, and one half of the community property (undivided) was awarded to the plaintiff, and the other half to the defendant. The plaintiff brings this appeal from that part of the decree awarding one half of the property to the defendant. The appeal comes here upon the judgment roll, from which it appears that th...
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Appellant was convicted of grand larceny, and appeals from the judgment and order denying his motion for a new trial. Upon a careful examination of the instructions of the *195court given to the jury, we have no fault to find with them. It is insisted that the evidence is insufficient to support the verdict. Davis was charged with stealing a pocket-book and one five-dollar gold piece, all of said ...
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This is an appeal by the administrator of the estate of the decedent from &n order of the superior court of San Diego County requiring him to pay to the creditors of the estate whose claims had been duly presented and allowed certain sums of money. The sum of money in controversy was $4,846.80, which was received by the administrator for and on account of the estate, between July 5, 1891, and Octo...
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This is an action to quiet title. The case was tried on an agreed statement of facts, as follows: In an action entitled H. v. W. and A., commenced May 4, 1888, the land in question, being that of W. and A., was attached and held until judgment in the case, November 12, 1888. May 19, 1888, W. and A. conveyed said land by deed to R. December 10, 1888, W. and A. appealed to this -court, giving the un...
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In September, 1887, J. W. Keifer, of Kansas City, Missouri, purchased eight acres of land *209situate in the county of Los Angeles, in this state, and had the deed made to Maria J. Keifer, his wife. In December, 1889, one O. B. Jenkins applied to the plaintiff' for a loan of money on this land. He represented, that Maria J. Keifer, of Kansas City, was the owner of the-land, and that he was her age...
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Appeal from a judgment rendered in favor of defendant upon his demurrer to the complaint. The complaint alleges, in substance, that plaintiff is a corporation, organized for the profit of its stockholders exclusively, with a capital stock of two hundred thousand dollars. The purposes of the corporation, as stated in its articles of incorporation, are as follows: “To receive deposits and pay intere...
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Defendant was convicted of perjury, and appeals from the judgment, and from an order denying a new trial. It is charged in the information that the appellant, Lem You, gave certain false and material testimony on the trial of one Wong Ark for the alleged murder of a woman named Goot Gue, who was shot in or in front *226•of the house in which she lived, on the night of April '.26, 1891, in the city...
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This is an appeal by the executor, James F. Mooney, from an order settling his annual account. When the executor filed his account, a legatee under the will objected thereto, upon the ground that he had a large sum of money and also other personal property in his possession which was the property of the estate, and for which he had not accounted. In answer to these objections, the executor set out...
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In this cause the learned judge of the trial court rendered the following opinion:—• *236“ The plaintiffs are a clothing-house in Chicago, and the action is for a balance due on a claim for goods sold and delivered to the defendant. The main item of difference, about which the contention in this suit is, arises from a loss on the return of some of the goods. The defendant ordered the goods by a le...
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The appellant was convicted of an assault with intent to commit rape, and now insists that the evidence is insufficient to support the verdict. Like a great majority of this class of cases, the facts here relied upon to support a conviction are largely dependent upon the testimony of the prosecuting witness alone; still, this court has repeatedly held that the testimony of the prosecutrix may be s...
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Appeal from a judgment granting a writ of mandate. The board of supervisors of San Diego County passed an order providing for the working of prisoners thereafter committed to the jail of said county under judgment of conviction of a misdemeanor, under the direction of a responsible person, upon public roads and other places mentioned in the order, and appointing respondent overseer of such prisone...
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This is an action to recover damages for the breach, by defendant, of an alleged contract, by which defendant ageeed to employ plaintiff as its *245superintendent for a term of two years. Judgment went for plaintiff, and defendant appeals. The main points made by appellant may be condensed into the statement that the evidence does not show any contract such as is averred in the complaint, and foun...
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This is a motion to recall the remit titur and reinstate the appeal in a cause wherein the judgment was affirmed without examination of the record by reason of the failure of counsel for appellant to file a brief or to appear at the time set for the hearing. The facts of the case are as follows: February 18, 1892, defendant was convicted in the superior court of Ventura County of murder in the sec...
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The appellant was tried and convicted upon a charge of having committed incest with his daughter, a girl of about fifteen years of age, and sentenced to the state prison for a term of ten years. At the trial the district attorney was permitted, against the objection and exception of the defendant, to show by the testimony of the daughter that about two years prior to the commission of the alleged ...
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This is an appeal by Hon. E. P. Colgan, state controller, from a judgment of the superior court of San Diego County directing the issuance of a peremptory writ of mandate requiring him to draw a warrant in favor of the board of supervisors of San Diego County in the sum of five thousand dollars for the benefit of the sufferers from the Tia Juana floods of February 22, 1891. The application of the ...
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This is an appeal by the plaintiff from a judgment in favor of the defendant. This is the second appeal plaintiff has taken from the same judgment. The former appeal was dismissed by this court on April 12, 1892, for fáilure to file the transcript within the time prescribed by rule No. 2, and the order of dismissal did not expressly provide that it was made without prejudice to the right of defend...
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This action was brought to enforce an asserted lien under the mechanic’s lien law. The court below sustained a general demurrer to the complaint, and judgment was rendered for defendants. Plaintiff appeals. The averments of the complaint are (in brief), that the La Verne company, defendant, was indebted to Meek & Benton in the sum of seven hundred dollars for labor and materials furnished by them ...
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The plaintiffs have filed a petition here purporting to be made under section 652 of the Code of Civil Procedure. Petitioners say that they prepared a statement of the case and bill of exceptions, served it on counsel for defendants, and presented it to the judge of the superior court for settlement; “that said judge refused to sign said bill of exceptions, and still refuses to sign said bill, or ...
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Action to obtain a judgment that certain property is held by the defendant in trust for the plaintiff, and for a conveyance thereof. E. C. Hermann, the father of the plaintiff and the husband of the defendant, in his lifetime caused a certain tract of land in Los Angeles County, of which he was the owner, to be conveyed to the defendant, and also certain moneys and other personal property to be pa...
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This appeal is from a judgment rendered in the court below in favor of the plaintiff. The action was brought to obtain judgment against a contractor, by a material-man,formaterials.furnished in the construction of certain works to be used to support, the flume of'one of the defendants and appellant, and against the flume company, to subject the structure in. which the materials, were used to the s...
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I concur in the judgment because it does not appear in the findings either that the coterminous owners had agreed upon the fence as the line between lots 4 and 7, or that respondents had claimed it as such line. All that appears is, that respondents, in addition to the west half of lot 7, also held by adverse possession a part of lot 4 as such; and as they had paid no taxes on the part of lot 4 in...
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This is an action to quiet the plaintiff’s title to a tract of land in the city of Los Angeles, and the complaint is in the usual form. The defendant is a corporation, and by its answer it denies that the plaintiff is the owner or entitled to the possession of a described portion of the tract, and avers that it is the owner in fee and in possession thereof, and it disclaims any claim to or interes...
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Plaintiff appeals from a judgment entered upon demurrer to complaint. The demurrer was general, and on the ground of insufficiency of the facts. It is a proceeding taken by the attorney-general of the state in the nature of a quo warranto to deprive the defendant corporation of its corporate charter, and procure its dissolution on two grounds: 1. For want of a substantial compliance with the statu...
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Appeal from an order refusing to set aside a homestead for the widow and minor children of deceased out of property claimed to belong to the estate of the deceased, and inventoried as such. In refusing to set aside a homestead for the widow and minor children of deceased, the court erred. The question of the validity of the adverse title claimed by the contestants to an undivided interest in the p...
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This appeal is taken from a judgment of dismissal of a petition for a writ of mandate after sustaining a demurrer to said petition. The object had in view by the petitioner was to compel the defendant, who is the tax collector of the county of Los Angeles, to advertise and publish the delinquent tax list in the newspaper of the plaintiff, a publishing company. The demurrer is general in its nature...
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On February10, 1891, the defendant White executed to the plaintiffs his promissory note and mortgage to secure payment of the same. The note was for seven thousand eight hundred dollars, and was payable five years after date, “ with interest at the rate of eight per cent per annum from date until paid, interest payable annually, and if not so paid, to be compounded annually, and bear the same rate...
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The statement of the account between the parties upon all of their transactions with each other which the court made in its findings was not a finding upon issues not presented by the pleadings, but was a direct finding upon the issue of payment presented by the defendant’s answer. The defendant had alleged in his answer that he had fully paid for the services for which the plaintiff brought the a...
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On March 12, 1888, L. D. Stone and his daughter, Harriet, each owned an undivided half of the Sisquoc rancho, in Santa Barbara County. Upon that day the father mortgaged his interest therein to the plaintiff in this action. In January, 1890, the plaintiff commenced an action to foreclose this mortgage, and at the same time filed and recorded a notice of the pendency thereof. Stone was thereafter d...
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Action to foreclose a mortgage on defendant Hensler’s real property, given to secure the payment of three several promissory notes. It is alleged in the complaint that the notes and mortgage were executed by defendant Hensler to Kimball Hardy in his lifetime (on July 9, 1887); that on or about February 16, 1889, Hardy'died; that his will was *299admitted to probate on March 12, 1889; that letters ...
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This action is upon a street assessment, and it appears from the complaint that the contract which is the foundation of the assessment was not entered into within fifteen days after the first posting of the notice of its award to plaintiff. Section 5 of the act of March 18, 1885 (Stats. 1885, p. 147), contains the following: “ But if said original bidder neglects, fails, or refuses for fifteen day...
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The court below sustained a demurrer to the complaint, and thereupon gave judgment for the defendants, and the plaintiff appeals. The complaint does not allege that the resolution of intention was posted, but it does aver that such resolution was published for two days in a daily paper printed in the city, and designated by the city council for that purpose. The first sentence of section 3 of the ...
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The action is upon a street assessment. The court below sustained a demurrer to the complaint, and thereupon rendered judgment in favor of defendants. The plaintiff appeals. We think the demurrer was properly sustained. It appears from the complaint that the contract which is *317the basis of the assessment sought to be enforced was not entered into between the assignor of plaintiff and the superi...
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This appeal is from a judgment of the superior court of Los Angeles County annulling an order made by the common council of the city of Los Angeles sitting as a board of equalization. The judgment was rendered in a proceeding under a writ of review, issued upon a petition and the affidavit of John Milner, the cashier of the plaintiff, a corporation doing a general banking business at Los Angeles. ...
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The county of Orange was created under the provisions of an act of the legislature approved March 11, 1889, and its organization was completed August 2, 1889. By the provisions of section 7 of the act, commissioners were appointed to adjust the respective liabilities of the two counties, and they made their report, fixing the amount of the liability of Orange County to the county of Los Angeles as...
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This appeal is from a judgment upon demurrer to the complaint. It is an action to recover the first installment paid upon an executory contract for the sale of land. The demurrer is general, that the complaint does not state a cause of action. From the complaint it appears that on the 26th of July, 1887, Miss S. A. Popplewell entered into an agreement with defendants in writing, whereby she agreed...
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The question presented on this appeal is, whether the public administrator, or the nominee of *340the father and mother of the deceased, is entitled to letters of administration upon her estate. The deceased left a will, which was admitted to probate; but the person named therein as executor having renounced his right to serve, the father and mother of the deceased severally requested that the cou...
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In her complaint, the plaintiff averred that, during a certain period, defendant was her confidential agent in purchasing and selling real estate and 'in transacting other business for her; that as such agent and for such business he received from her, during said period, the sum of $11,920, or thereabouts; that during said period he j>aid out and expended for her the sum of $6,225, or thereabouts...
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It appears from the return to the writ of certiorari issued herein that the superior court of Los Angeles, on September 30, 1889, made an order appointing one Silver receiver for the Los Angeles and Pacific Railway Company. The order was made in an action then pending in that court, wherein the California Bank, a corporation, was plaintiff, and the Los Angeles and Pacific Railway Company and other...
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This is an application by some of the defendants in the above-entitled action for a writ of prohibition or supersedeas to restrain the superior court *354from enforcing its judgment against them pending their appeal to this court. By the judgment appealed from, the plaintiff, Fox, recovered of the defendants, who are petitioning here, a little more than a million of dollars, and the amount of the ...
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This action is to quiet title, and involves the validity of a sale of the premises in question by the guardian of the plaintiff to the defendant. The complaint is in the usual form, alleging ownership in fee, that plaintiff is entitled to the possession, that defendant claims an interest adversely to the plaintiff, and that such claim is without right. Findings and judgment passed for the plaintif...
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Action to recover possession of certain land in San Diego County, with damages for the withholding thereof. The possession of the land by the defendant at the time when the action is commenced is a necessary element of the plaintiff’s right to recover in an action of this nature, and must be alleged in the complaint; and, being an issuable fact, must, if denied in the answer, be established at the...
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This is an action to quiet title to a piece of land described as lot 50, in a certain block in the city of Sonora, county of Tuolumne. The defendants-filed separate answers, and each claimed title to a large portion of said lot by virtue of an alleged location and ownership of a quartz-mining claim, called the San Guiseppi Quartz Mine; and defendant Sutton further averred that he had been in the a...
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The plaintiff filed an accusation against the defendant, who is a member of the board of trustees of the city of San Bernardino, charging him with having willfully violated his official duty as a city trustee, and asking that he be removed from office. It *380was alleged that while holding the office of trustee he leased a certain building to the city, to be used by the latter as a city hall, and ...
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The charges of the plaintiff in his accusation filed herein are of the same nature as those referred to in Crossman v. Kenniston, ante, p. 379. By the accusation, the plaintiff herein sought, as in the Kenniston case, to remove the defendant from his office as city trustee. The matter was heard before another department of the superior court. Judgment was entered in favor of defendant for his cost...
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The plaintiff, R. R. Darby, brought this action to recover a certain sum of money from the defendant, a hotel corporation, claimed by him to have been loaned to the corporation. The defendant denied all the allegations of the complaint, except that the defendant was a corporation; and for a further and separate defense alleged that before the commencement of this action the plaintiff had sold and ...
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This is an appeal by plaintiff from an order of the superior court granting a motion of defendant to quash the service of summons, to set aside and vacate the default of defendant, and to set aside and vacate the judgment which had been entered in the case In favor of plaintiff. The appeal was heard in Department Two, and the order of the court below was there, upon an opinion prepared by Belcher,...
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The appellant was convicted of an assault with intent to commit rape, and he appeals from the judgment, and from an order denying a new trial. There had been a former trial of the case, at which the jury had been discharged by the court for a failure to agree, and at the second trial the appellant pleaded once in jeopardy. On the issue of jeopardy the jury found in favor of the people; and the mai...
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In February, 1888, ten individuals, including the plaintiff and the defendant herein, borrowed upon their individual credit the sum of ten thousand dollars, for the use and benefit of- the Pasadena Lake Vineyard, Land, and Water Company, a corporation in which they were interested (five thousand dollars thereof from the San Gabriel Valley Bank, and five thousand dollars from a Mrs. Banta), for whi...
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This is an action brought to recover a sum of money, which the plaintiff, as assignee of an insolvent debtor., Edgar Sessions, claims should be paid him in his representative capacity by the defendants, W. F. Whittier et al., by reason of their having received from the insolvent, and-converted to their own use, certain goods delivered to them in satisfaction of a debt due the defendants by the ins...
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Plaintiff recovered a judgment against the defendant in the court below for the sum of twenty-five thousand dollars damages on December 18, 1890. On that day her counsel gave to the clerk the form of judgment, and paid him the costs of the action. The verdict was duly recorded, and the judgment was filed, but was not entered. In due time the defendant moved for a new trial. The motion was denied, ...
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C. M. West and George F. Bronnqr, public administrator, were contestants for letters of administration of the estate of James A. Woods, deceased. The court made an order denying the application of West, and granting letters to Bronner; and West appeals from the order. The only heirs of said Woods, deceased, were three minor children, and appellant offered to prove that Susan Sherwood was their onl...
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The charter of the city of San Diego was framed by a board of freeholders chosen therefor, and, having been adopted by the electors of the city and approved by both houses of the legislature (Stats. 1889, p. 643), went into effect on the first Monday of May, 1889. Article 7 of the charter is entitled “Educational Department,” and provides for a hoard .of education with certain designated powers an...
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This is an application for a writ of prohibition, to prevent respondents from levying a tax for municipal purposes upon property situated within the corporate limits of petitioner. A general demurrer to the petition was sustained by the trial court, and the legal sufficiency of the petition is the only matter before us. After alleging the corporate existence of the city of San Diego, that the terr...
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The appellant sought by this action to enjoin the respondent Dauer, as treasurer of the county of San Diego, from paying a warrant drawn upon him in favor of the respondent De Burn for his salary as superintendent of public schools of the city of San Diego. By the charter of the city of San Diego, the salary of the superintendent of schools was originally fixed at fifteen hundred dollars a year, a...
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The action was brought to recover possession of land. Defendant denies plaintiff’s title, claims title and right of possession in himself, and pleads the statute of limitations. *446The case was tried without a jury, and the court found as facts: That plaintiff acquired title to the demanded premises in June, 1882; that on the seventh day of July, 1885, the tax collector of San Diego County — wher...
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The defendant was charged with the crime of seducing an unmarried female of previous chaste character, under promise of marriage. He was tried and convicted, and the judgment was that he pay a fine of one thousand dollars, and if not paid, that he be imprisoned in the county jail one day for every two dollars thereof until it is satisfied. The appeal is from this judgment, and an order denying def...
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Owens Brothers filed a petition in the superior court for a writ of mandate to compel Colgan, as state controller, to draw a warrant in their favor upon the state treasurer for a certain sum of money. An alternative writ was issued; and on the return day, July 31, 1891, Colgan filed a demurrer to the petition, which having been overruled, the court made its findings, and ordered judgment for petit...
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This action was brought to foreclose a mortgage executed in favor of the plaintiff by the administrator of Mary E. Parker, deceased. The purpose for which the mortgage was given seems to have been to borrow money with which to pay certain debts .of the decedent contracted in her lifetime, and to pay expenses *457of administration, family allowance, etc. The defendants are the husband, who is also ...
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The defendant was convicted in the superior court of robbery, and sentenced to the state prison for the term of ten years. Thereafter he moved for a new trial, upon the grounds that the court had erred in its instructions to the jury, that the verdict was contrary to the evidence, and upon newly discovered *460evidence. The motion was denied, and he has appealed to this court. In support of the fi...
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This action was brought to recover damages for an alleged wrongful eviction from one of defendant’s street-cars. At the conclusion of the evidence offered by plaintiff, defendant "moved for a non-suit, which was granted, and judgment was entered against the plaintiff, who thereafter gave notice of his intention to move for a new trial upon a statement of the case. The statement was thereafter prep...
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This is an action to quiet plaintiff’s title to certain waters of a stream called Cedar Creelc, audio a ditch leading therefrom, and for an injunction, *465etc. The court rendered judgment for plaintiff against the defendants Harrison Smith and Edward Bonyman,, as prayed for in the complaint; but as against the defendants James and John A. Smith and B. C. Woodruff, the judgment quieted plaintiff’s...
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This is an action to recover for the loss of a certain harvesting machine and outfit, insured by defendant against loss from fire. The court below granted a nonsuit, and rendered judgment for defendant. From the judgment, and from an order denying a new trial, the plaintiff appealed. The policy ran in terms for a period of one year from June 12, 1890, to June 12, 1891; but, after reciting the char...
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April 6, 1891, certain persons presented to the board of supervisors of Los Angeles County a petition for the formation of a levee district under the act of March 10, 1891, entitled “ An act to provide for the organization and government of levee districts created for the protection of lands from overflow of innavigable running streams of water,” etc. (Stats. 1891, p. 30), to be called the Fruitla...
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Respondent has moved to dismiss the appeal from an order of the superior court of Tuolumne County striking out appellants' statement on motion, for a new trial, upon the ground that it was not taken in time. Such an order is an order made after final judgment, and an appeal therefrom must be taken within sixty days. The appeal in this case was taken too late, and must be dismissed. (Calderwood v. ...
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This case involves the conflicting claims of the parties to the waters of Posachane Creek. It is averred in the complaint that since 1886 plaintiff and its grantors have been the owners of a certain ditch, through which they have diverted and carried the waters of said creek, and used the same for beneficial purposes; and that in December, 1890, the defendants wrongfully *478constructed a dam near...
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The defendant Clasby was the constable of the first judicial township in the county of Colusa, and as such officer seized and took into his possession, under a writ of attachment issued out of the justice’s court for that township, in the action of W. W. Ludy v. Henry B. Black, certain personal property belonging to the plaintiff. At the time of its seizure, a portion of the property was in the po...
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Motion for a writ of supersedeas. The plaintiff brought this action for the foreclosure of a mortgage executed by one Palmer upon certain lands in Santa Clara County. After the execution of the mortgage, Palmer conveyed the property, and thereafter died. The defendants in the action are persons who have acquired an interest in the mortgaged premises under Palmer subsequent to the date of the mortg...
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This action was brought in the superior court of the county of Fresno, to recover damages against the respondents, as sureties upon an undertaking in an attachment suit against the plaintiff and appellant here, which attachment suit was dismissed. The complaint contains two counts. In the first, plaintiff, after the usual averments in reference to the suing out and levy of the attachment upon his ...
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Action for specific performance. The plaintiff had judgment in the court below, and the defendant has appealed, upon the judgment roll alone, without any bill of exceptions. The court finds that the defendant made an agreement with the plaintiff for the sale and conveyance to him of a parcel of land, of which he was the owner, in the town of San Buenaventura, for the sum of five thousand five hund...
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The complaint alleges that the executors of the estate of Miguel Leonis let and demised unto the plaintiff certain lands belonging to the estate for the term of eight months from and after February 1, 1891, and thereupon plaintiff took possession of and has ever since held the same; that on February 1, 1891, the defendant “ entered upon the plaintiff’s said described property, and drove into and k...
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This is an appeal by Roth & Co. from that portion of the decree of foreclosure and order of sale which adjudges and decrees that if the moneys arising from the sale shall be insufficient to pay the amount found due to the plaintiff, together with the *508costs and expenses of sale, the clerk shall docket a judgment for the balance against Roth & Co., a copartnership, together with interest on such...
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Action for damages alleged to have been suffered by plaintiff from the bite of a dog owned and kept by defendant, it being alleged that the dog was vicious, and accustomed to bite mankind, of which defendant had notice, and that plaintiff was bitten in consequence of the negligent manner in which defendant kept the dog. The answer admits that defendant owned and kept the dog, but denies all other ...
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This action was commenced to recover a sum of money alleged to have been received by the defendant for the use and benefit of certain parties, who had sold and assigned the indebtedness to the plaintiff. The defendant answered, and also filed a cross-complaint, making the plaintiff and his alleged assignors parties defendant, and asking for affirmative relief against them. The defendants named in ...
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Foley recovered a judgment foreclosing a street assessment upon certain realty of defendants. Some of the defendants appealed from the *517judgment, but did not serve notice of appeal upon their co-defendants. Respondent now moves to dismiss the appeal for that reason. The motion should be denied. The non-appealing defendants are not adverse parties within the meaning of the statute. Their rights ...
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The defendants executed to the plaintiff the following instrument in consideration of the loan to them by the plaintiff of the sum of three hundred dollars:—• “San Francisco, January 26, 1889. “ The undersigned agreement entered into between J. H. Sivers, of San Francisco, and John Sivers and Eliza Sivers, his wife, that the said John Sivers and Eliza Sivers do jointly and severally agree to pay t...
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The petitioner herein applied to the court below for a writ of review, and judgment was entered in her favor, directing the appellant to vacate and set aside a judgment entered in the justice’s court of Los Angeles City on the fourth day of June, 1891, in favor of one Brosseau, and against petitioner, Ellen Jones. The ground upon which the petitioner herein asked for the writ was, that neither she...
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The petitioner was convicted in the police court of the city and county of San Francisco, January 16,1893, of the crime of battery, and sentenced *528to pay a fine of one hundred dollars, or in default of the payment thereof, to be imprisoned at the rate of one day for each dollar of .said fine remaining unpaid. The petitioner claims that the court below had no authority to imprison him for more t...
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The defendants were partners doing a general merchandise business. Beecher was the general manager thereof, Crumbaugh living at a distance, and being seldom at the place of business. While defendants were so engaged as partners, on the 31st of July, 1886, plaintiff deposited with the firm the sum of $1,050. The defendant Crumbaugh was absent, as he usually was, from his place of business at the ti...
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Upon the sixth day of March, 1888, appellant, Wise, entered into an agreement with Charles O. and Asa Adams to convey to them certain land. Upon March 12, 1889, Charles Adams, one of the parties to the agreement, transferred his interest in the property to his co-purchaser, Asa Adams. On the same day, Asa Adams, having procured the deed from his co-purchaser, applied to appellant, Wise, for a deed...
Views: 9
The defendant, William Gillis, was prosecuted by information for an assault with a deadly weapon upon the person of one Till Vasquez, and upon trial by a jury was convicted of “simple assault.” Judgment was rendered upon the verdict, imposing a five of two hundred dollars. From the judgment, and from an order denying a motion for a new trial, this appeal is taken. Two errors are assigned by the ap...
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Plaintiffs, who are husband and wife, brought this action to recover three thousand six hundred dollars. According to the allegations of the com-, plaint, the plaintiffs, on the fifteenth day of December, 1884, were indebted to defendant in the sum of about $4,374, a balance due upon a promissory note of $8,000 made by them t'o the latter; that on said date, and as security for the payment.of such...
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On December 10, 1884, Alexander Driscoll was struck and. killed by a car of defendant, at the intersection of McAllister and Larkin streets, in San Francisco; and his widow, as administratrix, brought this action to recover damages for his death. The jury returned a verdict for plaintiff in the sum of $7,775, for which judgment was rendered. The defendant appeals from the judgment, and from an ord...
Views: 14
This is an action to quiet title to a certain tract of land described in the complaint by metes and bounds, and generally called the Hayes ranch. Judgment went for plaintiffs, and defendants appeal from the judgment, and from an order denying *569a new trial. The action was commenced by Edward Hayes, who died during its pendency; and it was prosecuted to judgment by his administrators. Both partie...
Views: 0
Action to foreclose a street assessment in San Francisco. The plaintiff offered in evidence the original assessment, diagram, warrant, and affidavit of demand and non-payment, to which defendants objected upon the ground that the warrant was not dated. The warrant is in the following form: — “ By virtue hereof, I, C. S. Ruggles, superintendent of public streets, highways, and squares of the city a...
Views: 12
This action is brought to obtain a judgment decreeing Ellen L. Riley, the appellant, to be the owner of certain premises situate in Woodland, Yolo County; that a sheriff's sale thereof to defendant F. Martinelli be declared null and void, etc. J. T. Riley, one of the defendants, and Ellen L. Riley, the plaintiff, were at the several dates herein mentioned husband and wife. About January, 1880, pla...
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This action is brought by plaintiff to quiet title to certain lots in the Central Addition to the city of Fresno. The defendant had judgment, and the plaintiff appeals from the judgment, and an order denying his motion for a new trial. The half-section line running east and west through section 4 is the north boundary line of the city of Fresno. Plaintiff’s lots lie on the north side of this line,...
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This is a proceeding for a writ of mandate to the respondent in his official character as auditor of the city of San Diego, commanding him to issue his warrant for an unpaid portion of plaintiff’s salary as chief of police. The respondent demurred to the petition for the writ. The court sustained the demurrer, and dismissed the proceeding. Plaintiff brings this appeal from the judgment of dismissa...
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This action is to recover from the defendant, Seifert, the sum of $120, the amount of a li*596cense tax imposed upon his business as a saloon-keeper for a period of twelve months, under an ordinance of the board of supervisors. The cause was tried by the court, and findings and judgment passed in favor of plaintiff, and the defendant appeals from the judgment, and an order denying his motion for a...
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This is an action to recover from the defendant, who is sheriff and tax collector of Orange County, the sum of $657, together with twenty per cent damages. ' The action is based upon the provisions of section 8 of the County Government Act, which provides, in substance, that whenever any board of supervisors shall, without authority of law, order any money paid as salary or fees, and such money sh...
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In this action a decree of divorce was rendered in favor of appellant, and H. T. Cresswell was appointed a referee by the court to take testimony, and report thereon as to the character, condition, and value of the property of respondent, preliminary to a rendition of final judgment. The decree required that the costs and expenses of the referee should be paid by respondent. The referee filed a pe...
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This is an application for a writ of mandate to compel the respondents herein to approve and allow the demand of appellant Eunice D. Marion, as a teacher of the school department of the city of Oakland, for salary from July 31,1889, to and including the twenty-eighth day of February, 1890, for the sum of seven hundred dollars, and to compel the defendants to draw a warrant for the payment of said ...
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The defendants, having foreclosed a mortgage on the laud of the plaintiff, purchased the land at the foreclosure sale for a sum less than the amount due on the mortgage, and caused a judgment to be docketed against the plaintiff for the deficiency. The plaintiff brought this action to set aside and annul the decree of foreclosure and the judgment for the deficiency, and also to cancel the notes an...
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The record in this case contains two appeals, — one from an order denying defendants’ motion for a change of place of trial, the other from an order denying defendants’ motion to dissolve an injunction. The action was for an accounting, and for the recovery of certain shares of the capital stock of the defendant corporation, alleged to have been illegally sold for delinquent assessments to the sai...
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Appeal from a decree in favor of plaintiffs for $356.35 and costs, and for the foreclosure of a mechanic’s lien as security therefor. The cause comes up on the judgment roll. The lion of the plaintiffs is for labor and services as carpenters and builders, rendered to the defendant in the construction of a build'ng upon a lot of land owned by the latter in the city of Stockton, county of San Joaqui...
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Appeal from judgment and order denying plaintiff’s motion for a new trial. On the twenty-first day of November, 1887, plaintiff was the owner of four certain lots in North Pomona, Los Angeles County, and on that day executed and delivered to the defendant a deed of conveyance of the same for the consideration, therein expressed, of §1,073.60 then paid by defendant. The granting part of the deed wa...
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The plaintiffs brought this action to partition a tract of land now known as the “ Rancho San José Addition,” a Mexican grant containing one league of land. The defendant San José Ranch .Company has succeeded to all the rights of the Mound City Land and Water Association, and the only contest herein is between it and those claiming under Ricardo Vejar and Ygnació Palomares. *660On April 15, 1837, ...
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Appeal from a final judgment in favor of defendants, and from an order denying a motion for a new trial. The action was brought to enforce the specific performance of a contract for the conveyance of land based upon the following agreement: — “This agreement, made the twenty-first day of January, 1886, between the Henrietta Vineyard Company, a corporation, party of the first part, and I. S. Eshlem...
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The defendant was convicted of murder in the second degree, and appeals from the judgment and from an order denying his motion fora new trial. The body of the information is as follows: “ William Hyndman is accused by the district attorney for the county of Nevada, state of California, by this information, of the crime of murder (a felony), committed as follows; The said William Hyndman on, to wit...
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This is an appeal from an order of the superior court refusing to dissolve an attachment. The action is brought by the assignee of an insolvent corporation, organized under the laws of the state of California, against Agassiz, Shaw, and a number of others, to recover the balance due from them severally upon their subscriptions to the capital stock of the company. The point made by appellants (Agas...
Views: 9
The legislature of this state at its session in 1891 passed the following act (Stats. 1891, p. 513): — “The board of supervisors of the city and county of San Francisco are hereby authorized and directed to order paid to John J. Conlin, or his assigns or legal representatives, the sum of $54,015.37, said amount being the principal, together with all *20the interest thereon, that remains due and un...
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This proceeding was brought by the executor of the last will and testament of Hiram Arthur Pear-sons, deceased, to obtain a construction of the second and third clauses of that instrument. The will is olographic, and was dated at San Francisco, August 9, 1882. The testator died at Chicago, Illinois, July 7, 1889, at the age of twenty-eight years. He was the only child of Hiram Pearsons and Aim Cha...
Views: 6
This action was brought to restrain the defendant, as tax collector of Alameda County, from making a sale for alleged delinquent taxes upon the assessment of a “franchise” for the fiscal year 1889-90. A general demurrer to the complaint was sustained, and judgment rendered for defendant; and plaintiff appeals. No question as to proper remedy is raised, and the case is submitted upon the sole quest...
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Upon due consideration of this cause, after hearing in Bank, we are satisfied with the conclusion reached and the opinion rendered in Department; and for the reasons therein given, the judgment and order appealed from are reversed and the court below is directed to enter judgment for the defendants on the findings. The following is the decision above referred to, which was rendered in Department T...
Views: 7
This is an appeal from an order setting aside and quashing service of summons. The record includes a bill of exceptions, which contains proof of the service of summons upon the defendant, and shows that default was entered upon the failure of defendant to appear and answer; also notice of motion to set aside and quash the services of summons, given two days after entry of the default, and on order...
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Action to quiet the alleged title of plaintiff to five undivided twelfth parts of a lot of land situtate in the city of San Francisco. The judgment of the trial court was in favor of the plaintiff, and the defendants appeal from the judgment and from an order denying their motion for a new trial. The cause was tried by the court and findings were expressly waived. It appears that Francisco Soto, w...
Views: 8
The facts involved in this case, so far as they need be stated, are as follows: — On December 31, 1875, the plaintiff was indebted to the defendant, William Goldstein, in the sum of $50,000, for borrowed money, and on that day executed to him his promissory note for the sum named, payable one day after date, with interest at the rate of one per cent per month. On March 20, 1876, plaintiff was inde...
Views: 8
This action was instituted to recover from the county of Los Angeles taxes levied for the fiscal year ending June 30, 1890, and paid upon a delinquent sale of property by the assignors of plaintiff. According to the averments of the complaint the officers *77assessed certain real property in the county of Los Angeles to the owner thereof, and also assessed the same property for the same fiscal yea...
Views: 12
The above-entitled causes between the same parties and relating to the same subject-matter will be considered together for convenience, if not of necessity. As No. 14705 was first tried, it will be first stated. It is an action upon two *84promissory notes made by the defendants, each for two thousand five hundred dollars, dated September 8, 1887, one payable one year, and the other two years afte...
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The plaintiff seeks to recover from the defendant as a stockholder in the Wyoming and Dakota Water Company its proportionate liability of certain indebtedness of that corporation to the plaintiff The case was tried in the court below without a jury, and judgment rendered in favor of the plaintiff, from which and an order denying a new trial the defendant has appealed. In 1877, August Hem me, being...
Views: 6
This is an orignal proceeding in which this court is asked to issue a writ of mandamus commanding the judge of the superior court of Yolo County to dismiss a certain criminal action pending in that court against the petitioner, John B. Strong. It appears that on September 8,1892, an information was filed in that court charging the petitioner with the crime of assault with intent to commit murder, ...
Views: 6
This is an action to recover a certain sum of money alleged to have been collected by defendant as attorney-*117at-law of plaintiff. The case was tried with a jury, and judgment was rendered for plaintiff for a little less than the amount sued for; aud defendant appeals from, the judgment and from an order denying a new trial. The main features of the case are these: Prior to May, 1888, respondent...
Views: 15
This case involves principles similar to those presented in the Bank of British North America v. Alaska Improvement Co., 97 Cal. 28. The plaintiff seeks herein to recover from the defendants as stockholders of the Alaska Improvement Company their proportionate liability of the amount represented by the bills of exchange upon which the former action was brought. The defense thereto is the same as w...
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This action was brought to recover possession of a tract of land in Sonoma County. The land is a portion of 640 acres confirmed to General Joseph Hooker as a part of the *135Mexican grant known as the Agua Caliente rancho. On the final survey 550 36—100 acres only were found to be included within the grant, and the respondent made application to purchase the balance of the 640 acres called for by ...
Views: 1
This is an action to quiet title to a lot of land in the city of San Francisco. John Agnew took possession of the property in 1868, and held the same until April 25, 1871, when he conveyed it to John Hogan, who entered into possession of the land and held it until his death, which occurred August 6, 1874. Hogan left surviving him the widow, Ellen, and four minor children. Letters of administration...
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This is an action against the defendants as executors of the last will and testament of James M. Donahue, deceased, upon a promissory note indorsed by their testator September 10, 1889. The note became due March 10, 1890. Donahue died on the third day of March, 1890, leaving a will in which the defendants were named as executors, and which was filed in the superior court on the eleventh day of Mar...
Views: 7
The legislature of this state at its session in 1889 passed an act, approved March 19, 1889, authorizing the incurring of indebtedness for municipal improvements, and issuing bonds therefor by cities, towns, and municipal incorporations (Stats. 1889, p. 399), the first section of which declares that “ Any city, town, or municipal corporation incorporated under the laws of this state, may, as herea...
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March 1, 1890, the defendants, J. B. and A. B. Capp, were indebted to the plaintiff in the sum of eleven thousand dollars, and on that day executed and delivered to him their promissory note for the sum of two thousand five hundred dollars, secured by a mortgage on certain real property. The mortgage provided that it should stand as security for the payment of said two thousand five hundred dollar...
Views: 1
October 10,1889, the plaintiffs and defendant entered into an agreement for the exchange of lands, by which the defendant agreed to convey to the plaintiffs certain property in Los Angeles “ known as lots ten (10), eleven (11), twelve (12), and thirteen (13), in the Pomeroy and Mills subdivision of the Hollenbeck tract, containing about two hundred (200) feet front, and one hundred and ten (110) f...
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Judgment went in the court below for plaintiff; and defendants appeal from the judgment and from an order denying a new trial. In January, 1888, Simon Kullman et al. recovered a money judgment for several thousand dollars against the defendant in the present action, Jacob Greenebaum; and on September 23, 1889, an ordinary writ of execution was issued on said judgment. The sheriff undertook, under ...
Views: 4
December 31, 1879, judgment was entered in the late twenty-third district court of the city and county of San Francisco, in favor of the plaintiff and against the defendants, in which the amount of the indebtedness of the defendant Blake to the plaintiff was ascertained and declared to be a lien upon certain lands, and directing a sale of the lands to satisfy the said indebtedness. This judgment w...
Views: 9
In this case the plaintiff and appellant Steen moves to substitute an attorney in place of the attorney by whom he has hitherto appeared. The motion is resisted by a party claiming to be an assignee of Steen’s interest in the matter in controversy, who desires the substitution of a different attorney. Affidavits and counter-affidavits have been filed, and read presenting a variety of questions as ...
Views: 1
This is an action of ejectment. Plaintiff had judgment, from which and from an order denying a new trial defendants appeal. Respondent objects to the appeal from the order denying a new trial, and moves to dismiss the same upon the ground that no undertaking was filed. This motion would be unanswerable under the rule laid down in Pacific Paving Co. v. Bolton, 89 Cal. 154; Perkins v. Cooper, 87 Cal...
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Appeal from an order granting a new trial. Plaintiff rented from the defendant, who was the owner thereof, from month to month a portion of the upper floor of a dwelling-house, known and designated as No. 3 Tehama Street, San Francisco, and took possession on or about March 21,1887. Plaintiff continued to occupy the premises as a tenant of the defendant until October 25, 1888, on which last-named ...
Views: 12
Action to recover eight hundred and fifty-four dollars, the complaint being in two counts; the first on a *189special written agreement, and the second for money had and received for the use of plaintiff. The plaintiff is the executor of the will of his father, John Sullivan, who died in July," 1882; and the defendant is the widow of Michael Sullivan, deceased, who was a brother of John Sullivan. ...
Views: 1
This is an action on a promissory note for two thousand dollars made by the defendant Grover to his co-defendant, Edward H. Flemming, or order, and by the latter indorsed and delivered to the plaintiffs before maturity. The *195answer denies “ that there was any consideration for 'the note,” and avers fraud in the procurement thereof by the payee from the maker, and notice by plaintiffs prior to t...
Views: 6
The proceeding in the court below was had under an alternative writ of mandate, issued on the application of appellant, to the San Francisco Stock and Exchange Board (an unincorporated association), commanding it to restore the applicant, Benjamin B. Rorke, to membership in said association, and to all the rights, privileges, and immunities pertaining thereto, or that it show cause, etc., why it h...
Views: 3
This is an appeal by an assignee in insolvency from an order made on the petition of the insolvent setting aside as exempt from execution a lathe and certain appliances used in running the lathe. The insolvent is a mechanic and machinist. Section 690 of the Code of Civil Procedure provides: “The following property is exempt from execution..... “ 4. The tools or implements of a mechanic necessary t...
Views: 3
This action was brought to foreclose a street assessment, and the appeal is taken by Moses and Ann Comer-ford, against whom judgment was entered upon default, from the judgment upon the judgment roll. April 10, 1890, an amended complaint was filed and an amended summons issued. The amended summons required defendants to appear and answer “the complaint filed therein, or judgment by default will be...
Views: 6
This appeal is from a judgment and order refusing a new trial. The action was brought to obtain an injunction, perpetually enjoining and restraining defendants from asking, demanding, or collecting any toll for or on account of the use of the toll road of the corporate defendant as a highway, or in any way interfering with such use either by the plaintiff, his grantees, or by his or their agents, ...
Views: 7
This purports to he an action upon a judgment. The complaint was demurred to upon the ground that it does not state facts sufficient to constitute a cause of action, and also as ambiguous, uncertain, etc. The demurrer was overruled; and defendants refusing to answer, judgment was entered for plaintiff. W. B. Hellitigs, one of the defendants, appeals. • The general demurrer should have been sustain...
Views: 7
The court below granted an order for the sale of the interest of Helen B. Blinn, an insane person, in certain real estate. Appellant Bradley made a bid in writing therefor of the sum of twenty-four thousand seven hundred and fifty dollars, “subject to confirmation by said court, provided that the title to said lot is perfect and merchantable, and is free from all liens and encumbrances of every ki...
Views: 0
On the twenty-ninth day of July, 1875, the defendant, Dwight K. Tripp, executed and delivered to the plaintiff his promissory note for $5,886, payable sixty days after date, with interest at the rate of one per cent per month from maturity until paid. The consideration for the note was the sale by the payee to the maker of 2,140 shares of the capital stock of the Western Savings and Trust Company,...
Views: 3
The defendant was charged with the crime of assault with intent to commit murder and pleaded not guilty to the charge. He was tried and found guilty of an assault with a deadly weapon. On appeal to this court the judgment entered against him was reversed, and the cause remanded for a new trial. (People v. Gordon, 88 Cal. 422.) When the case was again called in the trial court, the defendant entere...
Views: 9
Action on three promissory notes made by defendant to plaintiff, upon which judgment was rendered in favor of plaintiff for an unpaid balance of $868.43. The defendant brings this appeal from the judgment, and asks a reversal thereof on the alleged ground that the court failed to find upon one of the material issues of fact. It appears by the pleadings that to secure payment of one of the notes, t...
Views: 1
This action was brought to recover a balance. on account of wheat sold and delivered to defendant. Plaintiff had judgment, and defendant prosecutes this appeal from such judgment and from an order denying a new trial. The demurrer to the complaint was properly overruled. The objections are twofold: — 1. That it showed a sale of two lots of wheat according to sample, and at the same time averred a ...
Views: 2
This is an action to foreclose a mortoao-e. Defendant had judgment, from which the plaintiffs appeal. There is a bill of exceptions in the record relating to the propriety of the admission of certain oral testimony, but in view of the conclusions of law reached by the court below it becomes unimportant, and the appeal is practically based upon the judgment roll. Appellants assign two errors as gro...
Views: 8
The following is a copy of the complaint in this action :— “ The plaintiff in the above-entitled action complains of the defendant therein, and for cause of action alleges:— “1. That said defendant is a voluntary and unincorporated association of a very large number of persons, and has for its object the payment of endowments in the sum of $500 at certain periods, computed according to the age of ...
Views: 5
On the tenth day of October, 1887, Lewis Shively purchased a tract of land from the defendant under a written contract for the sum of $4,004; $1,334.66 was paid in cash, the balance was to be paid in three installments, the last payment being due on the 10th of October, 1889, and the deferred payments, if not paid when due, were to bear interest at the rate of twelve per cent per annum until paid....
Views: 8
This is an appeal from a judgment of the superior court of the county of San Bernardino commanding the board of supervisors of said county to take action on the claim of plaintiff, filed on the twenty-seventh day of October, 1891, before the said board of supervisors, by approving or rejecting the claim. Plaintiff filed a claim against the county of San Bernardino based upon the same contract whic...
Views: 0
Motion to dismiss the appeals. The plaintiff brought this action in 1884, against Thomas Hildreth, for the purpose of dissolving a partnership between them and to procure the sale of certain lands described in the complaint and alleged to be a part of the partnership assets. The other defendants were made parties to the action by reason of their claim to some interest in the lands. In 1891, the de...
Views: 4
Ejectment for a lot of land in the city of Colton. Judgment was rendered in favor of the defendants, *281aud the plaintiff has appealed. The title of the defendants is derived from the plaintiff through a sale under an execution issued upon a judgment against it in favor of the San Bernardino National Bank, rendered by the superior court of San Bernardino County, and unless the judgment under whic...
Views: 6
Appellant Beevers was convicted of bigamy, and now prosecutes an appeal to this court from the judgment and order denying his motion for a new trial. It is insisted that the evidence is insufficient to justify the verdict. Beevers, being of the age of twenty years, and Lou Jacobs, being of the age of fourteen years, desirous of marrying, eloped from Hollister, San Benito County, and went to the to...
Views: 8
This is an action by the city of Monterey, a municipal corporation, to abate an alleged public nuisance caused by the obstruction of an alleged public highway of that city, and to enjoin the defendants from further maintaining the same. The complaint in substance alleges that plaintiff is the owner and entitled to the possession and control of the laud therein described, and that the same is a pub...
Views: 5
This action is upon a street assessment, and the defendant appeals from the judgment upon the judgment roll. The defendant claims that he was assessed for too much, his assessment being $220.50, while he thinks he should be held for only $105.67. He owns a lot at the intersection of Jersey and Noe Streets in San Francisco, thus having frontage on both streets. September 19, 1887, the board of supe...
Views: 0
In March, 1890, William H. Birch and Company entered into a written contract with the defendant to erect for him in the building situate at the northwest corner of McAllister and Larkin Streets, San Francisco, a safety hydraulic passenger elevator, and to furnish the pumps and. machinery necessary to be used therewith. The contract fixed the price to be paid for the elevator at $1,200, and the par...
Views: 2
Action to quiet title to a fishing privilege, and for an injunction. Findings and judgment were in favor of defendants, and the plaintiff appeals from the judgment upon the judgment roll and a bill of exceptions. Plaintiff is the owner of certain lands on the north side of Eel river, know as swamp land survey Ho. 45, patented by the state to plaintiff’s grantor in 1882. Defendants are owners, seve...
Views: 1
On the thirtieth day of June, 1887, John Doran was the owner of a certain lot of laud in the city of San Francisco, and of seven hundred and seventy dollars, money on deposit to his credit in the Hibernia Savings and Loan Society of San Francisco. On that day he executed to the defendant, James Doran, a deed of the lot and an assignment in writing of the pass-book showing the amount to his credit ...
Views: 3
This action was brought to enforce certain mechanics’ liens against property on Bush Street, San Francisco, known as the French Church, taken in favor of the San Francisco Lumber Company, a corporation, C. Williams and F. C. Norman, respectively, and by them assigned to plaintiff. *317Nine other lienholders on the same property instituted actions to foreclose, whereupon the actions were consolidat...
Views: 1
This is an appeal from an order refusing to set aside a judgment entered against the defendant, Oliver McAvoy, by default. The action was for unlawful detainer of property after default in payment of rent. The complaint was filed August 15, 1890, *325in the superior court of the city and county of San Francisco, and the summons was served on McAvoy by publication in pursuance of an order of the co...
Views: 1
The defendant was convicted of a felony in asking for and agreeing to receive a bribe as a juror. He appeals from the judgment and from an order refusing a new trial. The indictment upon which he was tried was found, presented, and tiled June 7, 1892, and charges that on the seventh day of June, 1892, while defendant was a juror in a case on trial in the superior court of San Francisco, the pend-e...
Views: 8
Defendant was convicted of the crime of an assault with intent to commit murder, and appealed from the judgment and order denying his motion for a new trial. The motion for a new trial should have been granted by reason of error committed by the court in admitting improper evidence before the jury. Mrs. Nonella, wife of the defendant, was an eye witness to the affray, and testified in behalf of he...
Views: 2
This action was commenced November 1,1879, in the District court of the Twenty-Third Judicial District, to foreclose a street assessment, and the summons was issued on the same day. November 4th it was served upon certain named defendants, none of whom, as is now admitted, had or ever had any interest in the premises upon which it is sought to foreclose the lien. *338It is admitted that Joseph D. ...
Views: 4
Action of claim and delivery. The plaintiff purchased two mares from L. G. Simmons, at Lakeport, on the 1st of April, 1891, and took from him a bill of sale and an order upon one Reynolds for their delivery. The mares were at that time at pasture on a ranch belonging to Reynolds, about thirty miles from Lakeport, where they had been placed about a month previously by one Christie. Christie had bee...
Views: 3
The present action'involved the title and right of possession to a certain fund of money which was in the custody of the court pending the litigation. Upon the submission of the case the court filed its findings of fact and conclusions of law and ordered judgment to be entered in accordance therewith. The conclusions of law were: “ Plaintiff is entitled to have and recover a judgment against the d...
Views: 5
The plaintiff is a real estate broker, and brought this action to recover from the defendant one thousand dollars for commissions alleged to be due him for obtaining a purchaser of certain real estate owned by defendant. Judgment was rendered in the superior court in favor of the plaintiff for the amount demanded, and from this judgment and an order denying its motion for a new trial, the defendan...
Views: 5
This action was brought to recover four thousand dollars and interest, paid by plaintiff to the defendant corporation for five thousand shares of its capital stock. The recovery is sought upon a rescission of the contract of sale, on the ground that plaintiff was induced to make the purchase by the false and fraudulent representations of the defendant as to the profits of its business and the valu...
Views: 5
The defendant was accused and found guilty of the crime of “an attempt to commit incest” with his daughter, aged fourteen years and seven months. On motion of defendant, the court below granted him a new trial, and this appeal is by the people from an order granting a new trial. The evidence, without any conflict, shows that the defendant, both by solicitation and overt acts, attempted to have car...
Views: 11
In an action pending in the superior court in and for the county of Tuba, wherein the county of Sacramento is plaintiff, and the petitioner one of the defendants, a writ of injunction was served upon the defendant, requiring lmn to refrain from doing certain acts therein specified. While this writ was in full force the petitioner was charged before said court with having violated its terms, and wa...
Views: 14
This is an action to recover damages for personal injuries alleged to have been caused by the negligence of defendants. Verdict and judgment were for plaintiff; and defendants appeal from the judgment and from an order denying their motion for a new trial. Appellants were stevedores; and at the time respondent was injured they were engaged in loading wheat into a certain ship named “ Chala,” for w...
Views: 6
This proceeding was commenced in the superior court of Santa Cruz County under the provisions of section 1383 of the Code of Civil Procedure, and the petitioner therein, Sarah M. James, appeals from an order of that court refusing to revoke letters of administration theretofore issued to the respondent, Leonora A. James, upon the estate of William E. James, deceased, and also refusing to grant let...
Views: 5
The plaintiffs brought this action to have a certain deed, absolute upon its face, declared to be a mortgage, and for a judgment directing the defendant, the grantor named *382in such deed, to execute to plaintiffs a reconveyance of the property described upon the payment of the debt alleged to have been secured by the deed in question. The action was tried by the court without a jury, and the cou...
Views: 2
The appeal in this case is from a judgment dismissing the action on motion of plaintiff on the ground that there had been an unreasonable delay in service of the summons. The action was commenced November 11, 1889, and summons was issued on the same day, but was not served on defendant until October 12,1891. Upon the hearing of the motion it was shown that the defendant’s places of business and re...
Views: 3
Action to foreclose the lien of a street assessment in the city and county of San Francisco. At the trial the plaintiff offered in evidence the assessment, diagram, warrant, certificate of engineer, with the affidavit of demand and non-payment indorsed upon the warrant, to the introduction of which the defendants objected upon the grounds “ that the same were immaterial, irrelevant, and incompeten...
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The defendant is a corporation existing under the laws of this state, and belongs to the class known as mutual benefit associations. Uuder its constitution and laws it agrees to pay a stipulated sum of money to a designated nominee upon the death of the beneficiary member, and also issues to members known as “special benefit members” a certificate entitling them to receive an endowment, payable in...
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Action to enforce the specific performance of an agreement for the conveyance of land forming a part of the Rancho San Jose y Sur Chiquito. The superior court gave judgment in favor of plaintiff in accordance with the prayer of the complaint, and the defendant appeals. The appeal is upon the judgment roll alone, and this contains no bill of exceptions. The only grounds urged for a reversal of the ...
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The complaint in this action in substance alleges, that at the time therein stated plaintiff’s assignor, the *402A. A. Griffing Iron Company, a Hew Jersey corporation, manufactured for defendants, at their special instance and request, certain standard hot water radiators of the sizes described, and were ready and willing to ship and deliver the same at the agreed price of $909.72; that after the ...
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These are motions to dismiss the appeal of Alvord and Brown from an order made in the above-entitled action before the entry of the final judgment. The action is to foreclose a mortgage of the property of a street railway company. The defendants and cross-complainants, Brown and Alvord—as trustees of the holders of certain bonds of the corporation—have the first mortgage lien, which by the order a...
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TO SALARY OF PUBLIC OFFICER – CONSTITUTIONAL LAW – LIMIT OF INDEBTEDNESS OF MUNICIPAL BODY. – The payment of the salary of a public officer, whose office has been created and salary fixed by law, is not within the prohibition of section 8 of article XI. of the constitution prohibiting any county, city, township, etc., from incurring "any indebtedness or liability in any manner, or for any purpose,...
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It is alleged iu the amended complaint in this case that, on the thirteenth day of August, 1887, the defendant executed and delivered to the plaintiff his promissory note and a mortgage on certain real property to secure payment of the same; that on the 15th of December, 1890, the plaintiff commenced an action against the defendant in the superior court of Ventura County to foreclose the said mort...
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This is an action to recover damages alleged to have been sustained by the plaintiff by reason of the dangerous condition of a flouring mill conducted by defendants, and in which plaintiff was employed as a laborer at the time he received the injuries complained of. The plaintiff recovered judgment in the superior court for the sum of two thousand five hundred dollars, and the defendant appeals. T...
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The complaint in this action is in two counts. In the first it is alleged that the defendant is indebted to plaintiff in the sum of $4,566.55, “the siime being the balance of an account for goods, wares, and merchandise .... sold and delivered by plaintiff to defendant, and for work and labor and services performed thereon and in connection therewith, by plaintiff, at defendant’s .... request . . ...
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The plaintiff commenced this action in the ■ superior court of the city and county of San Francisco, to recover the sum of $382.25 alleged to be due for work, labor, and services rendered and performed by him for defendants at their special instance and request. The complaint was filed July 15, 1891, and on the 25th of the same month the defendants answered thereto denying that the defendants, or ...
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This is an appeal from an order made after final judgment taxing' a cost bill, the whole amount of the bill being only $171.20. We do not think that this court has jurisdiction of the appeal, for the reason that the amount involved is less than $300. We strongly intimated this conclusion in SellieJc v. Be Carlow, 95 Cal. 644; and further consideration satisfies us that the intimations given in the...
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The complaint in this action alleges- that the defendants published in a certain newspaper, of and concerning the plaintiff, a false and malicious writing in. the- words following: — “Venality.—It is understood that the Electric-Improvement Company will put a large sum of money' into the fight to-day to corrupt voters. There are scores of voters.in every *434community that money can buy.....It is ...
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The appellant was charged with and convicted of the crime of an assault with an intent to commit murder, the charge being that he committed the assault “ with a deadly weapon, to wit, a knife, upon the person of one Leong Ly Gimen”; and he appeals from the judgment and from an order denying a new trial. Appellant contends that the court erred in certain rulings touching the admissibility of eviden...
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The plaintiff is the road overseer of Soquel Road District, in Santa Cruz County, and this action was commenced by him to have an obstruction placed by defendant in a public highway in that district abated as a nuisance, and also to recover from defendant the sum of ten dollars for every day the obstruction remained after he had received notice to remove it. The judgment of the superior court was ...
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This is an appeal by certain heirs-at-law of E» O. Smith, deceased, from a probate order setting aside certain premises as a homestead to the respondent, who is the widow of the deceased. The facts necessary to be stated are these s The said premises consist of an ordinary city lot in the city of San Jose. It has a dwelling-house on it which covers nearly the entire lot | and in this house the dec...
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The plaintiff in this action seeks to recover $1,807.25 upon a building contractors’ bond executed to him by the defendants Allspaugh and Hall as principals, and by the defendant Lundeen as surety. The bond sued upon was executed on October 15, 1887, and after reciting the fact that . the principals therein had upon October 14, 1887, entered into *453a contract with the plaintiff here to build for...
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Action to cancel a patent issued by the state of California, in 1876, to A. W. Macpherson for certain lands in Mendocino County. It is alleged in the complaint that the lands in question are agricultural lands which were listed to the state February 15, 1870, in lieu of a section 36, that section then supposed to be within the exterior limits of a reservation, but subsequently ascertained to be ex...
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The plaintiff, while employed as a stevedore upon the defendant’s steamship Oceanic, on the 17th of November, 1889, fell through an open hatchway, breaking his leg and sustaining other serious injuries, and brought this action to recover damages therefor, alleging that they were caused by the negligence of the defendant. The jury rendered a verdict in his favor for three thousand dollars, and from...
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This appeal is prosecuted from an order granting a family allowance to Florence Blythe. Upon the hearing of the petition for the allowance counsel for the applicant introduced in evidence the findings of fact, conclusions of law, and the decree heretofore made and entered in the action of Blythe v. Ayers, wherein it is found and adjudged that Florence Blythe is the lawful child and heir of Thomas ...
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Appeal from an order of the superior court, by Mabel Treadwell, executrix of the will of J. P. Treadwell, deceased, denying appellant’s motion to strike out (or, in the alternative, to retax) a cost bill filed by plaintiff. In 1866 the plaintiff, Eeay, commenced an action of ejectment against Butler and Owens to recover the possession of a tract of “outside lands” known as “Speck ranch.” J. P. Tre...
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After a consideration of this case upon a hearing in Bank, we are satisfied that the judgment and order ■denying defendant’s motion for a new trial should be reversed. This action is to recover damages for personal injuries caused .'by an alleged wrongful and malicious assault made by defendant upon the person of plaintiff. The jury rendered a verdict for plaintiff in the sum of nine thousand doll...
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This action was brought by plaintiff as assignee of Knowls and Company to recover $667.17 for goods, wares, and merchandise, alleged to have been sold by said Knowls and Company to defendant. The plaintiff recovered a judgment for the full amount demanded, and from this judgment and an order denying his motion for a new trial the defendant appeals. The court made an order referring the case to one...
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This is an appeal by the defendant, the Bear Valley Irrigation Company, from a judgment in favor of the plaintiff in an action to enforce a mechanic’s lien, and from an order denying a motion for a new trial. It is averred in the complaint that appellant’s grantor employed one Stebbins to construct a certain telephone line, and that respondent sold and delivered to said Stebbins certain materials ...
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This is an action to recover damages for the breach of an express warranty of the merchantable char*491acter of certain dates sold by defendants to plaintiffs and paid for by plaintiffs at the contract price. Judgment went for plaintiffs, from which, and from an order denying a new trial, defendants appeal. We have considered carefully the oral and written arguments of counsel, and are satisfied t...
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Action to foreclose a mortgage on real property to secure the payment of a promissory note, dated January 29, 1889, for twelve thousand dollars, made by defendant, payable to plaintiff, or order, five years after date, with interest at the rate of ten per cent per annum, payable annually, and if not so paid annually, then the whole principal and interest to become immediately due and payable at th...
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This is an action against McMann, as sheriff, and his co-defendants as sureties, upon his official bond, to recover possession of certain personal property taken by him as such sheriff under a writ of possession issued upon a judgment obtained by one Lee Chuck v. Quan Wo Chong Co., in an action of unlawful detainer, and by which writ the said defendant was commanded to place the plaintiff in that ...
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This action was commenced on June 19, 1885, against Vitus Wackenreuder and Morris Windt, for the purpose of foreclosing a mortgage made by said Wackenreuder to secure the payment of his note which matured on June 29, 1882, and he was properly served with the summons, but for some reason not disclosed by the record the cause was not brought to a hearing in his lifetime. Wackenreuder died in August,...
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Motion to dismiss the appeal. The appellant was sued in his official capacity as treasurer of *512the city and county of San Francisco, and has appealed from the judgment against him. Section 946 of the Code of Civil Procedure provides that the court below may in its discretion dispense with an undertaking on appeal, “ when the appellant is an executor, administrator, trustee, or other person acti...
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Action to foreclose the lien of a street assess*» ment. *517The contract was awarded to Warren and Mal ley, who on December 26, 1889, assigned the same to Foley and Keenan, by whom the work was performed. The warrant and assessment were issued to Warren and Halley December 23, 1890, and delivered to Foley and Keenan. Foley and Keenan had assigned the contract to Lang and Buggies June 2, 1890, as s...
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This is an action to recover upon a street assessment. In the superior court a demurrer to the complaint was sustained, and judgment thereupon rendered for defendant. Plaintiffs appeal. 1. It is well settled that “the passage and publication of the resolution of intention are acts by which the board acquires *520jurisdiction; and by those acts they acquire jurisdiction to make only such improvemen...
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This is an action of ejectment. Defendants had judgment, and plaintiffs appeal therefrom and from the order denying their motion for a new trial. It appears that in April, 1873, William Marcellus Ord, the common grantor of plaintiffs, and the defendant, Anna E. Ord, conveyed by deed of gift to plaintiffs, who are the minor children of his brother, John S. Ord, certain property in Santa Cruz County...
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When the case of Price v. Price—an action for divorce—was called for trial in the superior court of Santa Clara County, the court was advised that the evidence would probably be of a filthy nature, and thereupon made an order directing “that during the trial all persons be excluded from the court-room except the officers of the court, the parties, and their counsel.” It was further ordered “ that ...
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Application for a writ of supersedeas. The above-named plaintiffs, claiming to be the owners of an undivided interest in certain lands, brought an action in partition against the defendants, Julia Hoppe and W. A. Fountain, alleging that the latter held a mortgage upon the land, exe*537cuted to him by his co-defendant Julia. Fountain also brought an action against Julia to foreclose his mortgage, a...
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The action was brought by the city of Santa Ana, a municipal corporation, to condemn a right of way over certain laud of the defendant for the opening of Second Street in said city. The cause was tried by a jury and the damages assessed at two hundred and sixty-seven dollars, for which sum judgment was entered in favor of defendant, as well as a decree that the use of the land for the purposes of ...
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In April, 1882, A. G. Anderson, the appellant’s interstate, being about to purchase a tract of land, made a verbal agreement with the plaintiff that the plaintiff should loan him $800 with which to make the purchase, and that the conveyance should be made by the vendor directly to the plaintiff, who should hold the title as security for the money so loaned, and also for all other moneys which he s...
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This action was brought to recover damages for the alleged diversion of water from a canyon onto the plaintiff’s land, through an artificial channel constructed by the defendant’s testator. The cause was tried by a jury, which rendered a verdict in favor of the defendant. A motion of the plaintiff far a new trial upon the ground, among others, that the verdict was contrary to the evidence, was gra...
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This is a motion to dismiss an appeal because of the failure of defendants to file a transcript within the time prescribed by rule 2 of this court, and for damages. The appeal is from a judgment rendered against defendants for the sum of $1,233.35, and was perfected by the filing of an undertaking on appeal on June 24, 1893, and no transcript on appeal has been filed in this court; and it further ...
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This is a controversy submitted to the court below upon an agreed statement of facts, as provided for by section 1138 of the Code of Civil Procedure. Judgment was rendered in favor of the sanitary district, and Woodward appeals. The proceeding was initiated by F. J. Woodward, a taxpayer within the Fruitvale Sanitary District, to test the validity of the organization of such district, and the legal...
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I feel compelled, under the authorities, to concur with my associates in reversing the judgment; but T do so with great reluctance and some doubt. The manner of nisi 'prim courts in conducting trials now-a-days is not generally subject to the criticism of too great curtailment of the privileges of attorneys; on the other hand, its seems to me that attorneys are frequently given too much latitude t...
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This is an application for a writ of mandate. The matter is before us upon a demurrer to the petition, aud the merits of the proceeding may be fully determined by a consideration of the facts relied upon by petitioner for the issuance of the writ. The writ is asked to issue against the board of supervisors of Orange County, requiring them to provide a library room for the use of the law library cr...
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The defendant was convicted of the crime of grand larceny, committed at Oroville, county of Butte, July 8, 1892. He moved for a new trial which was denied, and thereupon he appeals. He was convicted as an accomplice of one Sarah Brady, who admits that she committed the offense, and the only question calling for discussion relates to the sufficiency of the evidence in corroboration of said Brady. T...
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Defendants were charged by information- with robbery, committed in the county of Los Angeles September 6, 1892, aud upon a trial were convicted. The appeal is from the judgment of conviction and from an order denying a motion for a new trial. The information was signed as follows':—• “James McLachlan, District Attorney in and for the County of Los Angeles, State of California. By D. W. Diel, Deput...
Views: 9
This is an action to restrain appellants from diverting the waters of a certain stream, and thereby depriving plaintiff of the use thereof. The plaintiff, by actual diversion, appropriated two thousand five hundred inches of the water of the stream for the purpose of irrigation. Subsequently defendants, at a point a mile or more above plaintiff’s place of diversion, posted notices in accordance wi...
Views: 7
This action was brought by the respondent to enforce the specific performance of a contract to convey certain real property situate in the county of Los Angeles. Plaintiff had judgment, from which and from an order refusing a new trial defendants appeal. » The findings of the court show, in substance, that on the *589thirteenth day pf October, 1889, one Jason Brown was the owner of the land in dis...
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The points urged by appellant upon the re-argument of this case have been fully considered by us, and we think the judgment and order appealed from should be affirmed for the reasons given by us in the former opinion, filed herein on March 9, 1893, and that opinion will stand as the opinion of the court. Judgment and order affirmed. The following is the opinion above referred to, rendered in Depar...
Views: 11
This action is brought by the people of the state to recover the amount of taxes levied in the year 1888 for state purposes upon certain property of the defendant, Bailen no, situate in the county of Los Angeles. The amount of the delinquent tax exceeds three hundred dollars. The prayer, of the complaint is for a judgment against defendant Ballerino for the amount of such tax, with five per cent f...
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This is an appeal by the defendant from a judgment entered against him in the superior court of San Diego County, and from an order denying his motion for a new trial. It was taken by filing in the court below a proper notice and undertaking on February 10, 1893. The transcript was filed in this court on March 18, 1893. The respondent now moves to dismiss the appeal upon the ground that, when it w...
Views: 0
On August 4, 1884, the defendants made to plaintiff their joint and several promissory note for the sum of two thousand dollars, payable two years after date; and at the same time, to secure the payment of said note, executed to plaintiff a mortgage on certain lands, situate in the county of Lassen. This action was commenced in Lassen County on July 28, 1890, to foreclose the mortgage and to obtai...
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The mortgage upon which this action was brought provides that in case-of foreclosure the mortgagee may include therein all payments made by the mortgagee “ for taxes on said premises, and the taxes of this mortgage or the money hereby secured.” It is claimed by appellant that this provision of the mortgage is void, and that the court below erred in allowing interest on the note for the payment of ...
Views: 7
Action to recover of defendant Ward his proportionate share of the alleged indebtedness of a corporation in which he was a stockholder. Judgment went for plaintiff, from which, and from an order denying a new trial, said defendant appeals. Appellant contends, among other things, that the complaint does not state facts sufficient to constitute a cause of action, and that the action is barred by sec...
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This is a consolidation of eight actions to foreclose liens under the mechanic’s lien law against defendant, Thomas Norton, the owner of the building in question, and Thomas Helm, original contractor. Judgment went for all the plaintiffs except Knight, and Norton appeals from the judgment and from an order denying his motion for a new trial. The case was here on a former appeal. (Reed v. Norton, 9...
Views: 5
The plaintiff brought this action against her husband, the defendant, for permanent support and maintenance under section 137 of the Civil Code; and on August 12, 1891, the trial court made an order that during the pendency of the action defendant pay plaintiff fifty dollars per month alimony, and fifty dollars to her attorney. From this order, on the day on which it was made, defendant appealed. ...
Views: 6
The respondent filed his complaint against Manuel Banegas, the appellant, and J. W. Lucas, for the fore*625closure of a mortgage executed to him by said Manuel, and upon the default of Lucas, and the answer of Banegas, the cause was tried and judgment rendered in favor of the respondent March 9, 1891. Upon this judgment an order of sale was issued March 14th, and the mortgaged premises sold to the...
Views: 7
The complaint in this action substantially alleges that the board of supervisors of Los Angeles County, after a favorable election had for that purpose, duly authorized the issuance of three hundred bonds, in denominations of one thousand dollars each, bearing interest at the rate of five per cent per annum, for the erection of a county court-house; that said bonds were duly executed and delivered...
Views: 5
This is an appeal upon the judgment roll from a judgment on demurrer to the complaint. The action is for damages, and the complaint, in substance, alleges that the defendant maliciously and without probable cause sued out a writ of attachment against plaintiff’s property and extorted from him the money sued for, upon a threat made by defendant that if the same was not paid he would cause the writ ...
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This action was brought by Ida Rlioton and Elenora Rhoton, minor children of Amanda Rlioton, deceased, and Marion Sitton, a minor child of Eliza Sitton, deceased, to construe the last will of William T. Blevin, deceased. William T. Blevin, deceased, was a resident of the county of Sutter, and *646on the twenty-eighth day of April, A. D. 1888, made, executed, and published his last will aud testame...
Views: 5
Action of criminal conversation. Judgment was rendered in favor of the defendant, and the plaintiff has appealed, assigning certain errors of the court in its instructions to the jury. The respondent makes a preliminary objection to the consideration of these errors upon the ground that the appeal is taken from the judgment alone, whereas the rulings are only found in a “ bill of exceptions on mot...
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PLEADING – DEMURRER – STATUTE OF LIMITATIONS – SPECIFICATION OF SECTIONS OF CODE. – Where a demurrer to a complaint, on the ground that the cause of action is barred by the statute of limitations, specifies the particular sections upon which the defendant relies to defeat the action, only the sections specified are pleaded, and the question as to whether or not the cause of action is barred by any...
Views: 8
This action was brought by the public administrator, acting as the administrator of the estate of Daniel J. Harris, deceased; and in form it purports to be an *663action to obtain an accounting of the transactions between the defendants, A. S. Shorb and his wife, Mattie L. Shorb, and the said Daniel J. Harris in his lifetime. But the main averments of the complaint are that on the thirteenth day o...
Views: 3
This is an action for the recovery of real estate. The defendant set up title by adverse possession, and his claim was held to be well founded by the trial court. The sole question arising upon this appeal rests upon the construction of that provision of the statute which declares that, before the plaintiff can be deprived of his title by an adverse occupation, the party in possession must “ pay a...
Views: 6
Two cases with the above title were tried together and similar judgments entered in both cases. By stipulation the motion for a new trial and the appeal from the judgment and from the order denying a new trial are applicable to both. As the facts are in all material respects similar, it is only necessary to discuss one case, which will be that first set out in the transcript. The complaint in that...
Views: 4
The defendant was convicted of the crime of grand larceny, charged to have been committed April 9, 1892, in Tehama county, by feloniously stealing, taking, and carrying away one cow, the property of H. C. Wilson. The information was filed April 29,1892, and on May 4th the defendant was arraigned, and pleaded not guilty to the charge. On May 9th, by order of court, the trial of the case was set for...
Views: 20
This case resembles Miller v. Wadding-ham, 91 Cal. 377. In fact the building contract is the same in both cases. Clubine contracted with the defendant, Newman, to build certain houses, six upon land he had contracted to purchase from Miller, and six on the land purchased from plaintiff. The buildings were alike, and all were building at the same time. Clubine had a contract with plaintiff to purch...
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This is an action for a divorce and a division of the community property. It is alleged that F. R. Warner, who is joined as a defendant with the husband of the plaintiff, received from the husband a fraudulent conveyance of certain real property, situated in San Bernardino county, with the intent to defraud the plaintiff of her community interest therein. The prayer is for a divorce, a cancellatio...
Views: 8
The 44th section of the city charter of the city of Los Angeles provided a mode by which the funds of the citjr should be deposited in such bank of deposit of the city as would pay the highest rate of interest thereon, etc. (Statutes, 1889, p. 467.) Pursuant to such section of the charter a contract was, after due notice, on the tenth day of March, 1890, entered into by and between the plaintiff a...
Views: 4
This is an action to recover for services rendered in the exchange of certain real estate. Judgment went for plaintiff, a motion for a new trial was made and granted, and this appeal is prosecuted from the order granting a new trial. The case was tried by the court, and the new trial w*as granted upon the ground that “ the decision was against law.” The court made the following findings of fact: “...
Views: 6
In February, 1891, the plaintiff being largely indebted to Mrs. Adella B. Story, defendant, and also to other creditors, made an agreement with her as follows: “ Whereas, Mrs. A. B. Story has agreed to pay all the debts existing against the Story & Isham Commercial Company on the first day of February, 1891, including those payable to herself, and, whereas, said Story & Isham Commercial Company de...
Views: 4
This action is closely connected with the action of Story & Isham Commercial Company v. *42Story et al., No. 19015, ante, p. 30, and was argued and submitted to the court at the same time. After the former action had been brought against the present plaintiff, she commenced the present action for the purpose, among others, of restraining the defendants from interfering with the property conveyed t...
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The plaintiff was sheriff of Tulare county from January 7, 1889, until January 5, 18.91. During that time no salary was attached to his office, *62but he was entitled to charge and receive for official services such fees as were allowed by law. On November 29, 1890, he presented to the board of supervisors for allowance a claim against the county for $770.40. Of this claim $284.70 was for “ miles ...
Views: 0
This is an action to foreclose a mortgage. A decree in favor of the plaintiffs was entered upon the pleadings, from which Lee Stanley, the assignee in insolvency of the Columbus Brewing Company (a corporation), defendant, appeals. The admitted facts of the amended and supplemental complaint, coupled with certain affirmative allegations of the answer, show that the property described in the pleadin...
Views: 4
This is an appeal by defendant from a judgment against him in favor of plaintiff for $1,000, and from an order denying a motion for a new trial. The facts found by the court are substantially as follows: On September 7, 1887, the parties made a written agreement, by which the appellant, Cressey, agreed to sell to respondent, Easton, a certain piece of land, upon these terms: Easton was to pay “ on...
Views: 3
On the thirtieth day of December, 1892, W. C. Pingree died intestate in the county of Stanislaus, in this state. He was a resident of the county at the time of his death, and left an estate therein, consisting of real and personal property of the value of more than fifteen thousand dollars. He had no relatives or heirs-at-law residing in this state. On December 31st, the next day after the death o...
Views: 1
Action to recover possession of a large tract of land situate in the county of Tehama and the value of the rents and profits thereof alleged to be fifteen hundred dollars. The answer of the defendant admits the plaintiffs’ ownership of the land and the withholding of the possession thereof, by defendant, but alleges that he was entitled to the possession by a lease from the plaintiffs, and denies ...
Views: 4
This is a prosecution for obtaining money by false pretenses, and the defendant, having been convicted, appeals from the judgment. The indictment was demurred to on the ground that it does not state facts sufficient to constitute a public offense; and after conviction a motion in arrest of judgment was made on the same grounds. The indictment charges defendant: “With intent to defraud one John F. ...
Views: 12
This action was brought to have a certain road in Placer county declared a public highway, and to enjoin defendant from collecting tolls thereon. Plaintiff had judgment; and defendant appeals from an order.denying a new trial. It is averred in the complaint that defendant claims and is exercising the franchise of collecting tolls for the privilege of traveling upon and passing over the road, and i...
Views: 3
The transcript in this case contains two appeals, one from the judgment decreeing to plaintiff a divorce on the ground of adulter}», the other, from an order denying defendant’s motion to vacate and set aside the judgment. The complaint was filed April 6,1891, and the defendant served with process April 8,1891. On the twenty-first day of April, 1891, the defendant having failed to appear and answe...
Views: 7
The plaintiff agreed with the defendant to harvest about twelve hundred acres of grain, for which the defendant was to pay him at the rate of two *95dollars per acre. After he had harvested sixty-five acres a dispute arose between them concerning the terms of the agreement, the defendant claiming that the plaintiff was to take certain mules at an agreed valuation of one thousand dollars in part pa...
Views: 9
The defendant Caruthers appealed a judgment against him for the sum of seven thousand five hundred dollars, and gave to the plaintiff an undertaking, with the other appellants herein as sureties, to stay the execution of the judgment pending the appeal. The judgment was affirmed in this court, and, after the filing of the remittitur in the court below, judgment was entered against the sureties in ...
Views: 2
The Pacific Bank suspended payment and closed its doors on June 23, 1893. On the 11th of August following seven of its creditors, representing an indebtedness of three thousand and sixty-three dollars and twenty-nine cents, filed a petition in involuntary insolvency asking for an order to show cause why it should not be adjudged an insolvent. The grounds of the petition were that the bank being in...
Views: 4
On March 27, 1893, the board of supervisors of the city and county of San Francisco passed an order—designated as Order No. 2622—fixing the rates of compensation to be collected by any person or corporation furnishing water for family uses, for private persons, and for municipal and public purposes, during the year commencing July 1, 1893, pursuant to section *1251 of article XIV of the state cons...
Views: 4
The defendant was tried upon an information charging him with embezzlement. After .deliberating six hours the jury returned into court and stated to the judge that they were unable to agree upon a verdict, whereupon they were discharged. When the case came on for trial again, the defendant interposed the pleas of former jeopardy and former acquittal, and in support thereof introduced in evidence t...
Views: 10
Action of ejectment to recover the possession of two adjoining quartz lode mining claims, situate on the public mineral land of the United States, known as the “ Hathaway Claim” and the “Peck Claim,” each being particularly described in the complaint by metes and bounds; and also to recover three thousand dollars damages for the severance and removal from said claims of gold-bearing rock. The comp...
Views: 3
The defendant was found guilty by a jury, and sentenced by the court to seven years imprisonment in the state prison, upon an information, for mayhem, committed upon one W. R. Jones on the nineteenth day of December, 1891. The defendant pleaded not guilty, and also pleaded that he had once been in jeopardy for the offense charged, and also a further plea that he had been convicted of the offense c...
Views: 21
This is an action of ejectment to recover a parcel of land situate in the county of Los Angeles. Plaintiffs had judgment, from which and from an order denying a motion for a new trial defendant appeals. The parcel of land in question is part of a larger tract of which John O’Connor died seised July 21,1882. The entire tract was community property of John O’Connor and Maggie O’Connor (now Maggie Ph...
Views: 4
This action was brought to recover the sum of seventeen hundred and seventy-five dollars, the reasonable value of services alleged to have been rendered at defendant’s instance and request. The court found that in a former action brought by plaintiff against defendant it was adjudged that plaintiff did not render to defendant at the latter’s instance or request the services alleged in the complain...
Views: 2
Motion to dismiss the appeal. Judgment was rendered in this case in favor of thplaintiff, June 24, 1890, and an order was afterwards made denying defendant’s motion for a new trial. From this order the defendant appealed on the 29th of April, 1892. May 25,1893, the respondent gave notice to the appellant of this motion to dismiss the appeal, upon the ground that .the appellant had failed to file t...
Views: 1
Action to recover damages for a personal injury to plaintiff, alleged to have been caused by the negligence of defendant. The cause was tried by a jury, whose verdict was for the plaintiff, assessing the damages at one thousand dollars, and judgment accordingly. The defendant has appealed from the judgment, and from an order denying a new trial. The case was here on a former appeal from a similar ...
Views: 8
This is an appeal by plaintiff from, a an denying a motion for a new trial. The main history of the case is stated in the opinion of this court upon a former appeal (Montgomery v. Sayre, 91 Cal. 206); and it need not be repeated here. The first question in the case is whether or not Sayre, deceased, made the ten thousand dollar promissory note to appellant sued on as surety for W. S. Chapman. Resp...
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The defendant was charged with and convicted of the crime of forgery, and appeals from the judgment and also from an order denying a motion for a new trial. The appellant makes a great many points in his briefs, and elaborately argues them; and we will notice briefly what we consider the most important of such points. 1. Appellant contends that the information is fatally defective because the word...
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Breton died on the 4th of August, 1890, leaving a will, of which the following are the material parts necessary to be here considered: “First. I direct that all my just debts, the expenses of my last sickness, and my funeral expenses be paid from the first money that shall come to the hands of my executrix hereinafter named. “ Secondly. I will, bequeath, and devise to my beloved wife, Bertha Breto...
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This is an appeal taken to obtain a modification of a judgment in an election contest. *200It appears from the complaint that at the general election, November 8,1892, plaintiff and defendant were candidates, and the only persons voted for, for the office of supervisor of the third supervisorial district in the county of Modoc; and that at such election plaintiff received eighty-seven, and defenda...
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For the reasons given in the opinion filed by this department June 27, 1893, the judgment and orders appealed from are affirmed. The following is the opinion above referred to: Patrick Donohue died in San Luis Obispo county on the nineteenth day of February, 1892, leaving surviving his wife, the respondent, Kate Donohue, but no children, and also leaving an estate, consisting of real and personal ...
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The defendant as sheriff sold certain real property owned by plaintiff under an execution issued upon a judgment recovered against him. The complaint in this action, which is verified, alleges that this sale was made by defendant without giving the notice required by section 692 of the Code of Civil Procedure, and the plaintiff demands a judgment against the defendant for the statutory penalty of ...
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On September 26,1889, one Goldzier obtained a judgment in a justice’s court against Granger,the owner of a drug store. An execution was issued thereon, and on October 15, 1889,-the goods were sold *223by the constable under the execution to J. W. Husband and G. S. Turner for one hundred and ninety-six dollars, the amount of said judgment and costs. On October 1, 1889, the Jacob Unna Co., Redington...
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The defendant was convicted upon an information of having committed a felonious assault upon the person of one Marion Bradley Sparks, on the thirty-first day of May, 1892, in the county of Orange. During the impanelment of the jury one Moulton was examined as to his qualifications, and, having stated that he had frequently conversed about the case, and that from what he had heard had formed an opi...
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The complaint shows that the plaintiff, to whom the defendant had given a note and mortgage, purchased the property therein described at foreclosure sale, on March 12,1892, for the sum of $21,414.30 (being the full amount of the judgment, costs and expenses), and received the sheriff's certificate; that the premises had never been redeemed from the sale, and the time allowed by law for the redempt...
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Action to foreclose a deed of trust. The complaint substantially alleges that on June 22, 1881, the defendants, Henry Patison and his wife Emma J. Patison, executed to plaintiff’s assignor their promissory note for two thousand dollars, payable on the twenty-second day of June, 1885, with interest as therein specified; that at the same time they executed to the defendants, Hamilton and Coleman, as...
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Action to foreclose a mortgage. Plaintiff had judgment, and'defendant appeals. It appears that on the second day of October, 1877, the defendant, Henry Patison, was the owner and resided with his family on the premises in question; that on that day his wife, the defendant, Emma J. Patison, declared a homestead thereon, and that they continued to actually occupy the same up to the twenty-ninth day ...
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This is an action brought to recover damages for personal injuries sustained by the plaintiff while in the employment of the defendant as a road-master. The injuries were the result of a collision between a locomotive engine and a construction train upon which the plaintiff was riding. The engine which came in collision with the train was then being used in the work of defendant, and was driven by...
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William Stewart died in Lassen county on May 13, 1892, leaving what purported to be his last will, in which the respondent W. P. Hall was named as executor, and in which the daughters of the *248deceased, May M. Atteberry, aged twenty-four years, and Nellie Stewart, aged eleven months, both residents of said Lassen county, and his daughter Lena M. Stewart, aged twenty years, resident of Butte coun...
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The deed being a mortgage, plaintiff was not the owner of the land. (Civ. Code, secs. 24, 29; Smith v. Smith, 80 Cal. 325.) There was no sale to Schultz by plaintiff, and he could not have a vendor’s lien. (Civ. Code, sec. 3044.) A grantee is not estopped to deny the title of his grantor. (San Francisco v. Lawton, 18 Cal. 476; 79 Am. Dec. 187; Osterhout v. Shoemaker, 3 Hill, 518; Sparrow v. Kingma...
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Action to recover a balance of $825 alleged to be due and owing from defendant to plaintiff on a written building contract; and also $50 for extra work. The cause was tried by the court. The judgment was in favor of the defendant. The plaintiff has appealed from the judgment and from an order denying his motion for a new trial. By the contract the plaintiff agreed to repair an old house and to bui...
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The city of Fresno is a municipal corporation, organized in 1885, under the provisions of an act of the legislature approved March 13, 1883, entitled “An act to provide for the organization, incorporation, and government of municipal corporations.” It is of the fifth class named in the act, and has a board of trustees vested with power, among other things, “to provide fire-engines and all other ne...
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This is an appeal by petitioner from a judgment for respondent in a proceeding to obtain a writ of mandate. The petition avers that petitioner is a citizen, taxpayer, and resident of Sacramento county; that respondent is district attorney of said county; that McClatchy & Co., proprietors of the Bee newspaper, pre*266seated a claim of $1,567 to the board of supervisors of said county for advertisin...
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On March 3,1891, the board of supei’visors of El Dorado county passed an ordinance requiring “every person engaged in the business of raising, grazing, herding or pasturing sheep and goats, or sheep or goats,” in that county, to procure from the license tax collector a license therefor. The ordinance made it the duty of the license collector to collect the license, and further provided that he mig...
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The plaintiff, who is a married woman, brought this action to recover three hundred dollars from the defendant for personal services as a nurse, alleged to have been rendered by her to him. At the time these services were rendered the plaintiff and her husband were living together, and the defendant was an inmate of their house, but neither the plaintiff nor her husband was under any natural or le...
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Plaintiff sues for damages for personal injuries alleged to have been caused by defendant’s negligence. Plaintiff avers that he was employed by defendant as a laborer, and engaged under its direction in loading stone upon a car, and “ that the car on which defendant was loading stone, as aforesaid, on said day, was placed by said defendant, and stood during said day near and alongside, to wit: abo...
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The appellant, Thomas Orr, brought an action in June, 1891, against the respondents in the superior court of Siskiyou county, to restrain them from depositing any sand or gravel in ¡North Fork Cornish ditch, and from diverting the waters of Main Greenhorn creek from said ditch during a certain portion of each day; and immediately after the commencement of the action procured a writ of injunction t...
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This is an action to quiet title to portion of block 226 Western Addition to San Francisco. The defendant claims that it has been dedicated to the public use as a street. Whether it has or not is the only question involved. The defendant had judgment, and plaintiff appeals from the judgment and from the refusal of a new trial. It appears from the findings that in 1855 one Thomas Hayes owned a larg...
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Action to enforce specific performance of an agreement. The judgment was for plaintiff, and this appeal is upon the judgment-roll. The findings show that July 5,1883, Eliza D. Nichols was the owner of a tract of land in Solano count), bordering a natural watercourse known as “ Paddy Ranch creek.” She and her grantors had for ten years used the water of said creek for domestic purposes, and for irr...
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July 22, 1889, M. M. Keyes and Barbara Keyes, his wife, made their promissory note to John Cyrus for seven thousand one hundred and seventy-five dollars, and as security for its payment executed to him a mortgage upon certain lands in Sonoma county. M. M. Keyes died October 17,1889, and his widow Barbara was appointed administratrix of his estate and continued to act as such until August 10, 1891,...
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—The defendant was informed against for the crime of murder, and convicted for killing Oscar Crandall at the county of Tehama, on the twenty-fourth day of April, 1891. The appeal is from a final judgment, and from an order denying a motion for a new trial. On a former trial defendant was convicted of murder, and on appeal to this court a new trial was ordered. (People v. Mitchell, 94 Cal. 550.) C....
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Respondent has moved to dismiss the appeal herein, and to strike from the files the transcript on appeal. In preparing his notice of appeal counsel for the appellant entitled the cause Emma Butler v. Thomas Ashworth et al., and it is claimed that this invalidates the appeal. An affidavit has been filed in which counsel for appellant states that the mistake was caused by the fact that when he was e...
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Action to quiet title. The appeal is taken from a judgment in favor of plaintiffs, and the only question involved is as to the location of the western boundary line of the Rancho Paso de Robles. The rancho was surveyed in 1859, and its boundary lines, as far as it is necessary to examine them for the purposes of this case, are described as commencing at a post marked P. R. No. 3, then west 84 chai...
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Action to foreclose a mortgage executed by defendant to secure his promissory note for two thousand dollars made to his wife, Mrs. M. E. McClure, and by her assigned to the plaintiff, who is the son of defendant and his said wife. The only defense upon which any point made here is that there was no consideration for the note or mortgage. The judgment was in favor of the plaintiff, and defendant ap...
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This is an appeal from an order setting aside a judgment upon default. Within the time allowed by law for answering, the attorney for the defendant herein filed a demurrer to the complaint, but this demurrer was entitled Glenn Will v. The Lytle Creek Water and Improvement Company. It appears that the mistake was made by the attorney’s stenographer, and that there is a corporation named the Lytle C...
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This is an appeal from a decree settling an annual account of the administrator. Among the items allowed were the following: “Dr. Cook, medical services last illness, $45.50; Dr. Fergus-son, same, $10.50; Dr. Rogers, same, $50; Blodget & Dudley, drugs, $18.35; Mary Dougherty, nurse last illness, $25.” We think the objections to these items were properly taken by the contestant, and that they were ...
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Appeal from a judgment and from an order denying a new trial. The defendant was convicted of the offense of obtaining goods by false and fraudulent pretenses. He was prosecuted under section 532 of the Penal Code, which denounces as criminal “ every person who knowingly and designedly by false or fraudulent representations or pretenses defrauds any other person of money or property.” On the trial ...
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The petition for a rehearing will be denied. It appears that on September 28, 1892, the petitioner, L. M. Wagner, was adjudged insolvent by the superior court of Los Angeles, and subsequently the court, in the matter of the insolvency proceeding, made a distribution of all of the estate of the insolvent which had come into the possession of the assignee, and granted to the petitioner here a certif...
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The defendant was found guilty of the crime of assault with intent to commit rape, and was sentenced by the judgment of the superior court to imprisonment in the state prison for a term of seven years. The appeal here is from the judgment, and is brought to this court upon the judgment-roll alone, without any bill of exceptions. The jury retired to deliberate upon their verdict at nine o’clock in ...
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The defendant was convicted of the crime of arson in the second degree, and sentenced to *371imprisonment in the state prison for the term of six years. From the judgment of conviction and the order denying his motion for a new trial this appeal is taken. Appellant relies for a reversal on two grounds: First. Failure to prove the alleged ownership of the burned building. Second. Insufficiency of t...
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The plaintiff seeks to recover damages from the defendants for injuries sustained by him from their wrongful acts. The complaint is in two counts, each of which is stated to be “ a separate cause of action” against the defendants. For each of these separate causes of action the plaintiff alleges that he sustained damage in the sum of two thousand five hundred dollars, and asks judgment for their a...
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The defendant was convicted of the crime of assault with intent to commit rape, and sentenced to imprisonment in the state prison for a term of years. This appeal is taken by him from the judgment and the order denying his motion for a new trial. It is contended by appellant that the judgment should be reversed: First. Because of the insufficiency of the evidence to sustain the verdict. Second. Be...
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Daniel J. Bergin, deceased, died in March, 1892, in the city of Dublin, Ireland, leaving a last will, which was duly probated in the proper court of that country. He left some personal property in the city and county of San Francisco, California. By said will certain persons were appointed executors, and the respondent herein, Thomas I. Bergin, who is a citizen and resident of San Francisco, in th...
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The defendant was tried for the murder of William G. Canfield. The jury returned a verdict of guilty of murder in the first degree, with imprisonment for life. This appeal is from the judgment rendered upon the verdict, and from an order denying defendant’s motion for a new trial. Appellant, at the time of the homicide, was a constable at Sanger, Fresno county. Late at night he went to a house of ...
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A judgment was entered denying probate to a certain instrument claimed to be the last will and testament of William C. Flint, deceased, upon the ground that at the time said instrument was signed the testator was not of sound and disposing mind, and also. that said deceased was unduly influenced in the making thereof. The appellant, Annie Flint, wife of the deceased, made a motion for a new trial,...
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Upon the former appeal herein (87 Cal. 480), it was held that the petition for the order of sale was sufficient, and that determination is conclusive of the question upon the present appeal. The subsequent permission of the court below to allow Mrs. Dear to file objections to granting an order of sale does not give her any right to renew the objections to the sufficiency of the petition. By the pr...
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In January, 1889, Matthew Connors died, owning an undivided one-half interest in certain real property, situate in the city and county of San Francisco, and leaving as his sole heir-at-law his father, Michael Connors. In June, 1889, Michael Connors also died, leaving as his sole heirs-at-law two daughters, Margaret O’Neill and Mary A. Connors. In November, 1889, Thomas Kirkpatrick was duly appoint...
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This is an action brought by livery and feed stable keepers to foreclose a lien upon a horse for the feeding of the animal. The horse was placed by defendant Woods in charge of plaintiffs, he agreeing to pay the sum of twenty dollars per month for his care and feed. At this time Woods was in. possession under a contract of purchase from the defendant, Adams, the true owner, the agreement between t...
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The defendant is administrator of O. W. Craig, deceased. Craig, in his lifetime, and Franklin Sears as sureties, had with G. C. P. Sears as principal made two promissory notes to one Wiclcersham for something over $4,000; and on December 9, 1889; Wickersham had recovered judgment on said notes against all three of said persons for $4,280.40 and costs. The plaintiff herein and said Franklin Sears h...
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On March 11, 1891, an act of the legislature was approved, entitled “An act to create the county of Glenn, to establish the boundaries thereof, and to provide for its organization” (Stats, of 1891, p. 96); and defendant claims that in pursuance of the *421provisions of that act the county of Glenn became duly organized. For some time past defendant has been exercising the ordinary functions of a c...
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This appeal is from an order setting apart a probate homestead to the widow of deceased. John Vance died testate, leaving a widow and two sons, issue of a former marriage. There were no minor children. The will was duly admitted to probate, but, subsequently, S. A. Vance, one of the sons of the testator, inaugurated a contest, and asked that the probate be revoked. The value of the estate exceeded...
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The respondent, Christena Henke, brought this action to recover $600. The complaint avers in substance that the defendant is a corporation, organized and having for its object the *431payment to its members of certain sums of money at stated times as periodical installment endowments; that on the eighth day of February, 1889, plaintiff became a member of said corporation defendant, and received fr...
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Proceedings to condemn certain lands for a public street in the city of San Luis Obispo. The jury assessed the value of the land taken from the defendants at $6,500. The plaintiff moved for a new trial, upon the ground that the verdict was not sustained by the evidence. The court below was of this opinion, but held that the evidence would support a verdict for $5,000, and made an order that if the...
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The appellants were accused by information of the crime of robbery, and upon a trial Woo Ah Woy and Chung Ki Foon were convicted. The appeal is prosecuted from the final judgment, and from an order denying a new trial. The first objection to the judgment is that the court erred in rendering judgment against the defendants in the case, “because the information upon which said defendants were tried ...
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The defendant, Pettit, was elected treasurer of the county of San Luis Obispo at the general election in 1890, for the term of two years, and held his office until January, 1893. June 2, 1891, the other defendants became sureties on his official bond for the faithful performance by him of all his official duties. The present action was brought to recover the sum of $2,316.19, which it is alleged h...
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Appeal from a judgment in favor of defendant upon its demurrer to plaintiff’s complaint. The complaint in substance alleges that on January 2, 1893, the plaintiff delivered to the defendant at San Diego, for transmission and delivery, the following message: “ Col. A. G. Gassen, 501 Geary Street, San Francisco. Rennie will appoint. You wire him, please. Urgent. A. S. Kenyon;” that through the gross...
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Information charges the defendant Wells, jointly with Ollie Hutchings, alias Grace Gilbert, with the crime of forgery. Wells was tried separately, was convicted, and appeals from the judgment and from an order denying a new trial. Appellant contends for a new trial upon several grounds: Because the assistant district attorney, representing the people, in his opening address to the jury made missta...
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The appellant was convicted of the crime of embezzlement, and has appealed from the judgment and from an order denying his motion for a new trial. The indictment charges that at the county of Alameda one Richard G. Beggs, a clerk, agent, and servant of the “ Oakland Consolidated Street Railway Company” (a corporation), embezzled eight thousand five hundred dollars, the personal property of said co...
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The appellant was informed and convicted of the crime of an attempt to commit burglary, and he appeals from the judgment and from an order denying a new trial. There are only two points made by appellant which need special notice—. which points, by the way, are not discussed in the brief of respondent. 1. The charge is that appellant feloniously attempted to enter the house of one Patrick Kenny wi...
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This is an appeal from a judgment enforcing a mechanic’s lien for the value of labor performed, and materials furnished in repairing and altering certain buildings and structures on two lots of the defendant situate in the city and county of San Francisco; and comes here on the judgment-roll without any bill of exceptions. The cause was tried by the court without a jury; and the only points made b...
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The demurrer to the complaint was' properly sustained. "Until distribution of the estate of William Walkerly, deceased, by the probate court, the respondents, Bartlett, Bacon, and Barker, hold the property of said deceased as executors of his will, and they must account to the probate court for all property of the estate of said deceased received by them as such executors, and for their management...
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This action was instituted in November, 1892, by John A. Patchett and his four children to have their title quieted to a tract of land in San Luis Obispo county. The defendant corporation by its answer alleged title in itself to a strip sixty feet wide across the said tract, and pleaded in bar of the action the statute of limitations. The court below gave judgment against the defendant, from which...
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This is an action to foreclose a mortgage on real property. The complaint was filed and the summons issued on December 26, 1891. The summons was served upon the defendant on April 3, 1893, and on the 12th of that month defendant served notice upon the plaintiff that he would, on May 1,1893, move the court to dismiss the action, on the ground that the summons was not served within the time required...
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The information charges appellant, jointly with one Oman, with the crime of burglary. He was convicted, and appeals from the judgment and from an order denying a new trial. Oman, who had pleaded “ guilty,” was called as a witness for the prosecution, and testified that appellant had nothing to do with the commission of the alleged crime. The prosecuting attorney was allowed, on the ground of surpr...
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Response to petition for rehearing. The principal point decided in this case was that the county treasurer, when he has no notice of the illegality of the demand, or of the fact that no requisition has been made upon the auditor, or of any other fact to put him upon inquiry, may safely pay a warrant drawn upon the school fund if it is in due form and bears the genuine signature of the auditor or h...
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— The defendant Shorb was elected treasurer of the county of Los Angeles in November, 1892, and, having duly qualified, commenced to discharge the duties of that office January 2, 1893. The other defendants are his appointed and duly qualified deputies, who were acting as such before and at the time of the commencement of this action. The action is of the nature of a quo warranto information, and ...
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This is an application for a writ of review to annul an order of the court below adjudging petitioners guilty of contempt, for the disobedience of its judgment. It appears that the petitioners, Julia V. Stewart and W. B. Prentice, entered into a contract with one Hill, whereby they agreed to deliver to the latter or his executors, representatives, and assigns, at a certain point on the line of the...
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Judgment was entered against the plaintiff upon demurrer to his complaint, and this appeal is from that judgment. In May, 1882, Blythe claimed to be the owner and was in possession of a tract of land in Mexico containing about one million eight hundred thousand acres, and at that date entered into a contract with the plaintiff by which the plaintiff and his family should go from San Francisco to M...
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Defendant had judgment in this cause. Plaintiff moved for a new trial, and this appeal is prosecuted from an order denying such motion. The action is by plaintiff as administratrix of her deceased husband, Joseph Stevens, to recover damages for his death while in the employ of the corporation defendant, alleged to have been caused by its negligence. The defendant at the time of the injury complain...
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A general demurrer to the complaint in this action was sustained by the court below, and, the plaintiff declining to amend, judgment was entered in favor of the defendant, from which the plaintiff appeals. The facts stated in the complaint are in substance as follows: Under the provisions of section 8 of article XI of the constitution of this state, a charter for the city of San Diego was framed b...
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Judgement was rendered and entered in this action in favor of the plaintiff October 7, 1890, .and the time for serving and filing a notice of intention to move for a new trial was extended by stipulation and by an order of the court until January 5, 1891. January 3, 1891, the defendants served upon the plaintiff a notice of their intention to move for a new trial, stating therein that it would be ...
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This action was brought to recover by Almon Wheelock, as the executor of the last will of Albert G. Wheelock, the sum of seven thousand and forty-five dollars- and eighty-nine cents, moneys received on deposit by the defendant San Francisco Savings Union from Albert G. Wheelock in his lifetime. Defendants had judgment. Plaintiff thereupon moved *581for a new trial, which motion was denied, and fro...
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Appeal from the judgment. A simple question of law is presented by this appeal. The learned judge of the trial court, in an opinion which respondent has printed in his brief, presents that question thus: “Will the lien of an unrecorded mortgage, given to secure a loan, take precedence over an attachment or judgment lien obtained after the execution of the mortgage ? There is no law in this state w...
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The demurrer to the complaint was properly overruled. In an action like this, to recover damages resulting from the alleged negligence of a defendant, a general allegation of negligence upon the part of the defendant is sufficient. “The negligence is the ultimate fact to be pleaded, and is not a legal conclusion.” (Bliss on Code Pleading, sec. 211.) Nor was it incumbent on the plaintiffs to allege...
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This is an appeal by Miranda W. Lux, widow of Charles Lux, deceased, from an order of the superior court made May 13 and filed May 17, 1892, allowing her the sum of one thousand dollars per month, as an allowance for her support, from August 30, 1888, to November 16, 1891. Charles Lux died testate in March, 1887, leaving an estate of the value of four million dollars or more, of which ninety per c...
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The superior court made an order settling certain accounts rendered by the executors of the estate of Charles Lux, deceased, to which accounts exceptions had theretofore been filed by certain devisees named in the will of the deceased. This appeal is taken by said devisees, and is from so much of the order as fails to charge the executors interest upon money which the court found was improperly pa...
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On July 3, 1890, the plaintiff entered into a written agreement with the defendants, J. B. Livingston and W. H. Clarke, under the firm name of Livingston, Clarke & Co., whereby he leased to them the steamer Farallón for a certain time, commencing *619July 8, 1890, and upon certain terms and conditions. And, to secure performance of the terms of the agreement on their part, the said defendants deli...
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This action was brought to foreclose a mortgage for thirty-five thousand dollars and interest, executed July 8, 1891, in favor of plaintiff, by Emery D. Howe and Ellen D. Thurber, upon a ranch situate in Contra Costa county. The mortgage purported to convey the land, etc., with the “rents, issues and profits thereof,” and was acknowledged and duly recorded July 10, 1891. The Earl Fruit Company (a ...
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This action was brought by the plaintiff to subject certain real property in the city of San Francisco to the payment of a judgment obtained by him against the defendant, Joseph Brown, on April 5, 1887, for the sum of $8,334.06 and costs of suit. It is alleged in the complaint that this real property was on October 3, 1883, conveyed by the judgment debtor to the defendant A. M. Brown, with intent ...
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This action was originally brought by the plaintiff against the defendants, Campbell and Kent, to recover the sum of two thousand five hundred and forty-nine dollars and fifty cents, surplus in their hands, arising upon the sale of certain real property conveyed to them in trust to secure an indebtedness of plaintiff to the San Francisco Savings Union. These defendants answered admitting that afte...
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This is an action by real estate brokers to recover commissions for negotiating a sale of a tract of land situated near the city of Stockton. The owners thereof gave Gaman & Lyon, real estate brokers of San Francisco, the following writing: “ Stockton, September 17, 1887. “We, F. T. Baldwin, B. F. Langford, and John D. McDougald, do hereby constitute and appoint Gaman & Lyon, of 339 Kearny street,...
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This case was decided in Department, but a rehearing having been ordered, it is now before the court in Bank. The appellant was convicted of the crime of forgery, and prosecutes this appeal from the judgment and order denying his motion for a new trial. It is insisted that the facts charged in the information do not constitute the offense of forgery, and that is the only matter relied upon for a r...
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This is an action for an injunction, and to recover damages for an infringement of plaintiffs’ trademark and labels. The facts found by the court below are substantially as follows: In the year 1887, plaintiffs commenced to manufacture and sell a new and valuable medicinal compound or beverage, and adopted and used in con- *676and Iron.” By reason of the superior character of the medicinal constit...
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Ejectment for land in San Mateo county. A certificate of purchase for the lands involved herein was issued to Benjamin S. Green by the register and receiver of the land office of the United States, March 5, 1863, and a patent therefor was issued to him August 1, 1871. April 21, 1869, Green and wife mortgaged the land to C. C. Wilson and J. P. Jourdan, and in an action for the foreclosure of this m...
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—On November 3, 1890, the respondent-plaintiff (a corporation), as party of the first part, and the appellant-defendant, as party of the second part, executed the following agreement: — “That the said party of the first part, for and in consideration of the covenants and agreements hereinafter mentioned *3to be kept and performed by said party of the second part, does covenant and agree unto the c...
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This appeal presents two questions: 1. Whether the court properly overruled defendant’s demurrer to plaintiff’s complaint. 2. Whether the court properly struck out a defense from the answer. Respondent confesses error in striking out the defense, and Consents that the case be reversed on that ground. He says the point made by defendant on the demurrer is radical and important, and will be argued w...
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— This is an action to recover damages for personal injuries alleged to have been received by plaintiff on a passenger train of defendant. The jury returned a verdict for plaintiff of fifteen thousand three hundred dollars. Defendant moved for a new trial upon various statutory grounds, including excessive damages. The trial court made an order that if the plaintiff should consent that the judgmen...
Views: 12
The action is brought by the widow and minor daughter of James Daves, deceased, to recover damages for loss suffered by his death through the alleged negligence of the defendants. The case was tried by a jury, and a general verdict rendered against the defendants, the Southern Pacific Company and Bresnahan, for nine thousand dollars. It was also specially found by the jury that the defendant, Bres...
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This action was originally commenced by Alpheus Bull, now deceased, against John T. Coe, administrator of Charles L. Strong, deceased, and his widow, Hattie W. Strong, to foreclose a mortgage executed to said Bull by said Charles and Hattie Strong upon land admitted to have *28been the separate property of said Hattie. Judgment was first rendered in favor of the defendants; and upon appeal to this...
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On April 5, 1884, George Crossmore, now deceased, was the owner of the real estate in the complaint described, and on that day he sold the said real estate to defendant, Nicewonger, for the sum of eight thousand dollars, taking his promissory note therefor, payable four years from that date, with interest. Crossman executed a grant, bargain, and sale deed for said premises to Nicewonger, but said ...
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The plaintiff was at one time the wife of the defendant, Narcisso, and in October, 1888, pending an action between them for divorce, they entered into an agreement for the division of their property, in which it was provided that a lot of land situated on San Pablo Avenue, in Oakland, should be sold, and the proceeds of the sale equally divided between them, but that such sale should not be for le...
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Action upon a promissory note, executed by the defendant Gray to the defendant Stevens. *41Tlie plaintiff’s title to the note was derived by a purchase thereof after its maturity at a sheriff’s sale under an execution issued upon a judgment against Stevens. The note had been executed by Gray in part-payment for the purchase of an interest in a mine in Fresno County. At the time of the purchase and...
Views: 2
This was an action against the defendants as sureties upon an undertaking given to slay execution of judgment pending appeal. The defendants demurred to the complaint on the ground of insufficiency, and the demurrer was properly overruled. They then answered, and plaintiff had judgment, from which the defendants appeal upon the judgment-roll alone. It is substantially alleged, and the court finds,...
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This action is brought by the plaintiff, an infant, to recover damages for personal injuries alleged to have been sustained by her while walking upon the roadway of defendant, by being run into by a locomotive operated by defendant. The case was tried by a jury, which returned a verdict for defendant, and the appeal is from the judgment and from an order refusing a new trial. Plaintiff’s evidence ...
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Plaintiff brought this action to recover from the defendants the sum of $953.11, the amount of an assessment levied against the land of the defendants lying within Reclamation District No. 150. The act of March 20,1874 (Stats. 1873-1874, p. 867), under which the plaintiff was organized as a reclamation district, provides that immediately after the passage of the act the u owners of land in Swamp L...
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— This was an action for damages, plaintiff alleging by her complaint that the defendant with force and violence made an indecent assault upon her, and then and there wickedly seduced, debauched, and carnally knew her, when and whereby she became pregnant with child. . A trial resulted in a verdict for plaintiff in the sum of twenty-five thousand dollars, and this appeal is prosecuted from the jud...
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— The plaintiffs in this action are successors in interest to an appropriator of running water. The appropriation was made at a time when all the lands affected were public lands of the United States, and by means of a ditch and flume through which the water diverted, from the stream was conducted to the lands now owned and occupied by the plaintiffs, where it was applied to irrigation, watering s...
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During the pendency of an action entitled Behlow et al. v. Fischer et al., one Lane was appointed receiver to take possession of and manage certain mining property pending the result of the litigation. Subsequently a judgment was rendered for plaintiffs in said action, in which judgment said Lane was re-appointed receiver, with full power and authority to manage, conduct, and carry on this mining ...
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— This is a proceeding upon habeas corpus, and it appears from the return to the writ issued herein, that at the date of its service the petitioner was imprisoned by the sheriff of San Mateo County upon a charge of maintaining within *76that county a hospital for the treatment, for reward, of insane persons, without having procured a license so to do, as required by an ordinance adopted by its boa...
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We are satisfied, with opinions filed and the conclusion reached by Department One when this case was before it for decision, and the judgment is therefore reversed. In their petition for a rehearing respondents, claim that they are entitled to assert their rights as heirs, but it is evident from the pleadings, findings, and decree that the parties and the court below ¡proceeded upon the theory th...
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— Israel Sanborn died in San Joaquin County on January 27, 1892, and on February 3, 1892, V. M. Peyton filed in the superior court of said county a petition iu which it was averred that said Sanborn left a will dated April 17,1872, by which petitioner and one Severy were named as executors. It was further stated that Severy was incompetent; and petitioner prayed that the will be admitted to probat...
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Upon the trial of this cause findings of fact were made and filed by the court, upon which judgment was rendered in favor of the defendant. From that judgment the plaintiff appealed directly to this court, upon the judgment-roll alone, without any bill of exceptions, and upon the hearing in this court the judgment was reversed and the superior court directed to enter a judgment upon the findings, ...
Views: 16
This is an appeal from a final judgment in favor of plaintiffs, and from an order overruling a motion for a new trial. On the twenty-fourth day of May, 1888, J. G. "Wofford, the assignor of the respondents, S. G. Boyd, E. W. Chapman, the appellant, and E. H. Fleming, entered into a written agreement of arbitration of certain differences existing between them, growing out of and relating to certain...
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This is an original proceeding by mandamus. The petitioner is plaintiff in an action (Krumdick v. White) commenced in the superior court of Lake County in the year 1887. The respondent, who was the attorney for the defendant in that actiou, has been since January, 1891, judge of the superior court of Lake County. In December, 1891, the judgment of the superior court of Lake County in the action re...
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— The transcript in this case was filed O dober 20, 1892, and on November 1st the respondent stipulated witli the appellant that he might have “ twenty days in addition to the time allowed by the rules of this court in which to serve and file his points and authorities .... and that the order of the court may be entered herein in accordance with this stipulation upon its being filed.” The stipulat...
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— Action in the nature of trover to recover damages for the conversion, by the defendants, of certain cattle. In the original complaint, filed November 23, 1891, the plaintiff described herself as executrix of the will of Christopher Cockrill, deceased, who, she alleges, died on January 6, 1891, and whose will was probated and letters testamentary issued to her on January 31, 1891. The canse of ac...
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The defendant was convicted of the crime oí an attempt to commit rape upon a girl under the age of fourteen years, and this appeal is taken from the judgment and order denying a motion for a new trial. Defendant moved to arrest the judgment upon the grounds: 1. The court had no jurisdiction to affix any penalty or render any judgment for the reason that no punishment was provided for the offense b...
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1.There was no error in admitting the dying declarations of the deceased, and the evidence was sufficient to show that they were made under a sense of impending death. 2. The defendant requested the court to give the following instruction s “ The jury are instructed that if they find from a consideration of all the evidence that it points as clearly to another person who committed the crime in que...
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— This is a proceeding by mandamus to compel the respondent to settle and certify a bill of exceptions to an order dissolving a writ of attachment. Despondent demurs generally to the petition for want of facts. From the petition it appears that the order dissolving the attachment was made October 4, 1892. Afterwards, on the same day, the cause in which the attachment had been issued was tried by t...
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The defendant was charged with the murder of one Ira Wall, and was convicted of murder in the second degree. On the trial in the superior court evidence was admitted over the defendant’s objection to the effect that at the time of the homicide, Ira Wall and his mother were together, and immediately after shooting and killing Ira Wall with one barrel of his shot-gun the defendant fired with the oth...
Views: 26
— This is an action to cancel a contract for the construction of a brick building in the city of Fresno, and to foreclose a mechanic’s lien. Plaintiff had judgment, from which apd from an order denying a motion for a new trial defendants, Annie T. Griffith and S. If. Griffith, appeal. Defendant, Annie T. Griffith, is the wife of her co-defendant, S. If. Griffith. She owned lots 8 and 9, in block 7...
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Defendants moved to change the place of trial from the county of Tulare to the county of Fresno, on account of the convenience of witnesses, and this appeal is from an order denying said motion. The action is to foreclose a mortgage upon lands, a part of which are in Tulare, and a part in Fresno County. Defendants answered presenting material issues of fact. The affidavit upon which the motion is ...
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— Action to remove and abate as a nuisance an enbankment or levee, erected by defendant upon his own land, but which held back and caused water to flow upon the land of plaintiff, and to recover damages for injury caused thereby. Plaintiff had judgment, from which and from an order denying a motion for a new trial defendant appeals. The plaintiff, Mary Gray, has been since 1888 the owner in fee in...
Views: 16
This action was brought to recover a balance alleged to be due from defendant to plaintiffs for the construction of its bank building in the city of Fresno. Plaintiffs are assignees of the contractor, and his contract was confined to the woodwork of the building. The contractor completed his work to the satisfaction of the architect, but the bank claims that it was not done within the time fixed b...
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— This action arises from a contract of sale of real estate, and was commenced to recover the sum of six hundred dollars paid to respondent and one Meux as a partial payment under the terms of the contract, and is based upon an alleged default upon the part of said respondent and Meux to carry out the terms of said contract. Glenn answered the complaint, denying the allegations thereof, and set ou...
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this action was here upon the last appeal (92 Cal. 108), the facts before the court were that Bours had been employed by Faulkner, Bell & Co., who were agents of Arguello, to make a sale of the land, and had reported to them a sale thereof for the sum of four thousand five hundred dollars, sending at the same time a form of a deed to be executed by Arguello, without, however, inserting the amount ...
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— This action was brought by the city of Fresno in its corporate capacity to obtain a decree abating as a nuisance a certain ditch or canal, owned by the Fresno Canal and Irrigation Company, and which runs through parts of certain streets of said city. The Fresno Milling Company, who had purchased water from the ditch of the other defendant, and *181had built a large flouring mill on the banks of ...
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— The defendant made its policy of insurance in favor of the plaintiff’s assignor, by which it insured him to an amount not exceeding eight hundred dollars for the term of three months from June 2,1890, against loss or damage by fire to the following described property, “while located and contained as described herein, and not elsewhere, to wit:—■ “Threshing outfit in the field. “Eight hundred dol...
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— Action to quiet title to an undivided half of a quarter section of land situate in the county of San Joaquin. The judgment was in favor of the plaintiff, and defendants have appealed therefrom and from an order denying their motion for a new trial. Robert Coffee, who is admitted to have been the source of ' title, conveyed an undivided half of the quarter section to the defendant, Mary P. Staple...
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This is an appeal from a judgment of the superior court of San Joaquin County, annulling a judgment of a justice of the peace upon a writ of review. The action in which the judgment of the justice of the peace was rendered was brought by the History Company, a corporation, against R. Weill, to recover from the defendant therein the sum of $86.70 for certain books alleged to have been sold to the d...
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The defendant filed an application in the United States Land Office for a patent to a quartz mining claim fifteen hundred feet in length and six hundred feet wide, called the “Scorpion.” The plaintiff filed in said land office an adverse claim, averring that he was the owner of a quartz mine called the “Hope mine,” and that a portion of the Scorpion mine claimed by defendant conflicted with a port...
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record in this case is in a condition of hopeless entanglement, but sufficient appears to require a reversal of the judgment. One Navarro was named as executor and made a devisee by the last will and testament of Catarina P. Whetton, deceased. He qualified as such executor and entered upon the discharge of his duties. James Whetton, husband of deceased, filed a contest asking for revocation of his...
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The defendant, the Selma Irrigation District, is a corporation organized under an act of the legislature of this state entitled “An act to provide for the organization and government of irrigation districts, and to provide for the acquisition of water and other property,” etc., approved March 7, 1887 (Stats. 1887, p. 29), and this action is brought by the people of the state to obtain a judgment d...
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— This is an appeal from a final judgment entered in favor of appellant, who was plaintiff in the court below, decreeing the plaintiff to be the owner of certain land, and enjoining defendants from entering upon or interfering therewith. The cause comes up on the judgment-roll, and the sole question involved relates to the right of appellant to damages in addition to the relief afforded him. In No...
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The defendant and four other persons were jointly indicted and charged with the murder of one Robert Allen, alleged to have been committed in the county of Sacramento, in the month of May, 1891. The defendant was convicted of murder in the first degree and sentenced to imprisonment for life, and from this judgment and an order denying his motion for a new trial he has appealed to this court. The o...
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— The appellant was appointed assistant district attorney of Fresno County on the first day of April, 1891, by virtue of the provisions of subdivision 21, section 170 of the County Government Act, passed March 31, 1891. He entered upon the duties of his office, and on the third day of July, 1891, made a demand upon the respondent, as county auditor, that he draw a warrant on the county treasury in...
Views: 7
The defendant, having been convicted of grand larceny, appeals from the judgment and from an order refusing him a new trial. He claims that there was no evidence against him, or if any, none that he had committed the crime of grand larceny. On October 2, 1891, twenty-one head of cattle were taken from Mr. Weyer’s ranch, about twenty-one miles east of Modesto. The next morning they were seen at Cla...
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— The defendant was charged by information with the crime of burglary, committed at Iowa Hill, in the *237county of Placer, on the tenth day of May, 1891. He was arraigned and pleaded not guilty to the charge. At the trial witnesses were called and examined by the people and by defendant, but the latter did not take the stand and testify in his own behalf. At the conclusion of the evidence the dis...
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This action is upon a fire insurance policy, and the appeal is taken by the insurance company from the judgment and from an order refusing a new trial. Only two points are made here: 1. That the court erred in refusing to instruct the jury that in case they find that the proof of loss furnished by plaintiff to the company was false or fraudulent, their verdict should be for the defendant; and 2. I...
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— The question involved on this appeal is the right of a constable in Merced County to charge mileage for the *246distance traveled for the purpose of arresting a prisoner, and also for conveying him to jail after his arrest. The question was decided in the affirmative in Allen v. Napa Co., 82 Cal. 187, following the decision in Cunningham v. San Joaquin Co., 49 Cal. 323. It is contended, however,...
Views: 3
This is an appeal from the judgment and also from the order of the trial court denying a motion to set aside the default and judgment taken against the appellants, John L. Koster and H. Blagemann. 1. The appeal from the judgment is based upon the contention that the original .complaint did not state a cause of action. Conceding for the purposes of the case that the original com*250plaint was lacki...
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—This is an appeal from a judgment and also from an order denying a motion to set aside said judgment: The appeal is taken by certain sureties upon the official bond of one Hubert, formerly treasurer of the city and county of San Francisco. Appellants have presented no reason why the appeal from the judgment should be sustained, and we therefore pass to a consideration of the order denying the mot...
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This is an action for the rescission of certain conveyances and instruments connected therewith, growing out of an exchange of property owned by plaintiff in the county of Placer, for a tract of land with vineyard thereon, etc., owned by defendant, situated at Sonoma in the county of Sonoma. The action is based upon false and fraudulent representations of defendant and its agents, whereby plaintif...
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This was a special proceeding in the superior court to condemn lands of the defendants for the widening of Mission Street in said city, in which judgment passed for plaintiff. The appeal by the defendants is from an order apportioning the costs between the parties. Each party claimed costs and filed a verified memorandum of the items thereof. The items of plaintiff’s memorandum are as follows: — “...
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The plaintiff commenced this action on the nineteenth day of January, 1891, to quiet his title to five hundred and forty-seven acres of land in Sonoma County. In the complaint filed Philip S. Fay was named as a party defendant, but as to him the action was subsequently dismissed. The complaint alleged that the plaintiff was the owner in fee-simple absolute and in possession of the property describ...
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— The complaint states two causes of action for the destruction of tan bark, cord wood, etc., by fires alleged to have been negligently set by the defendant upon its own land and for its own convenience, and which it negligently permitted to escape, and to extend to plaintiff’s land; the first occurring October, 1887, and the second July 30, 1889. The value of the property destroyed by the first f...
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This is an appeal by Mansfield Lovell and Lallah S. Highton, two of the defendants in the above-entitled cause, from a judgment in favor of the plaintiff. John Burns instituted the action against Ada M. Scoofiy, Lallah S. High-ton, Edith Cook, Mansfield Lovell, Robert T. Cottingham, Nelson R. Doolittle, and Harry J. Gray, to establish his right to purchase from the state of California the north ha...
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The defendant was convicted of the crime of burglary in the second degree, and has appealed from the judgment entered against him and from an order denying his motion for a new trial. At the trial the only witnesses for the prosecution were Joseph A. Sargent and George F. Seibert. Sargent testified that he owned a cabin in which he lived alone, and that in his absence some one entered it through a...
Views: 3
Appeal from a judgment in favor of defendant, and from an order denying a motion for a new trial. The action was brought to have an absolute deed executed by plaintiff to defendant October 4, 1886, conveying a lot of land in the town of Alamo, county of Contra Costa, California, adjudged to be a mortgage, and to permit the plaintiff to redeem, and to require the defendant to execute a deed of conv...
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Two separate actions were brought, one by Tunis and the other by Christensen, to foreclose separate mechanics’ liens upon a building constructed by defendant Walter upon land owned by the Lakeport Agricultural Park Association, a corporation, and one of the defendants herein. The two actions were consolidated and tried together. Judo-ment was entered foreclosing the liens, declaring their order of...
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— Action on a promissory note (so-called), of which the following is a copy:— “$1,000.00. San Luis Obispo, Cal., March 29, 1890. “ For value received I promise to pay to the order of the First National Bank of San Luis Obispo, in gold coin of the U. S., any and all sums of money which the said First National Bank of San Luis Obispo may loan or advance to me on my account to the amount of one thous...
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This appeal is by plaintiff upon the judgment-roll, and appellant contends that judgment should have been fir plaintiff upon the findings. Suit was brought to recover the possession of land, and it was tried without a jury. The court found that plaintiff on tlie fifteenth day of August, 1891, was, and long prior thereto had been, in the actual possession of the demanded premises; that plaintiff en...
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Plaintiff commenced this action on the eighteenth day of May, 1889, to recover a balance due upon an account stated. It is alleged in the complaint that prior to the third day of July, 1888, at the city and county of San Francisco, plaintiff had done and performed for defendant, at his special instance and request, a large amount of services and labor, for which defendant was justly indebted to pl...
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— The defendant was convicted of murder in the second degree, and from the judgment upon such conviction and an order denying a new trial he has appealed. 1. After the jurors had been impaneled and sworn to try the cause, the court, upon its own motion, ordered them into the custody of the sheriff during the progress of the trial, and instructed the sheriff to keep them together, and not to speak ...
Views: 15
At a meeting of the stockholders of the Pacific Wood and Coal Company, a corporation, held at San Diego, November 17,1892, for the election of five directors for the year then next ensuing, the appellant Clugston was declared elected as one of the directors. The respondent herein claimed that certain votes offered to be cast for himself at the election should have been received, and that if they h...
Views: 11
This is an action to recover damages for injuries to property (horses aud harness) resulting from a collision with a train of cars at a railroad crossing in the city of Oakland. A nonsuit was ordered by the trial court aud the plaintiff has appealed. The accident occurred in the settled portion of the city. The train was going at the rate of thirty or thirty-five miles an *310hour, and the enginee...
Views: 9
— A judgment was rendered against the appellant in the justice’s court of Bodie Township, in Mono County, on the thirty-first day of December, 1888, and an execution thereon was issued out of said court on the twenty-seventh day of November, 1891. By virtue of this execution the sheriff of Mono County, on the thirtieth day of November, 1891, levied upon “ the franchise to collect toll and all the ...
Views: 4
This case was tried by the court, without a jury, in June, 1891, and the 18th of September following findings were filed and judgment entered in favor of the defendants. Written notice of the decision was served on the plaintiffs by the defendants on the day the findings were filed. Thereafter, on the 28th of the same month, the plaintiffs served and filed written notice of their intention to move...
Views: 6
This is an appeal from an order of adjudication of insolvency, based upon a petition of creditors. The demurrer to the petition was properly overruled. Section 8 of the Insolvency Act requires the petition to be filed in the superior court of the county, or city and county, in which the debtor resides or has his place of business. The allegation of the petition is that the lumber company has its p...
Views: 8
The appellant brought this action for a divorce from the defendant, and, on the 19th of March, 1892, after the defendant had appeared in the action, but before she had answered the complaint, she made an application to the court for an order directing the appellant to pay to her temporary alimony pending the suit, and also a certain amount of money, “as counsel fees and court costs.” The court the...
Views: 12
This action was brought to recover $3,500, with interest, costs, etc., upon a promissory note made by defendants to plaintiff on March 29, 18-90, and payable July 1, 1890. The jury returned a verdict for plaintiff for only $1,240.24; and plaintiff moved for a new trial upon the grounds of insufficiency of the evidence to justify the verdict, that the verdict is against law, and errors of law occur...
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The only question in the case at bar requiring special notice is this: “Is a judgment foreclosing a mortgage valid as against grantees of the mortgagor and subsequent encumbrancers, although a representative of the deceased *328mortgagor is not before the court at the time of the judgment —the plaintiff waiving all recourse against any of the property of the estate except the mortgaged premises? •...
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— This was an application in the court below by William McFarland, the respondent here, for a writ of mandate to compel appellant, auditor of the county of Mendocino, to issue two warrants to respondent upon the county treasurer for *330$149.25 and $244.85, respectively. The respondent was a constable of Mendocino County, and as such presented two claims for fees against the county to the board of...
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This action was originally brought by the plaintiff to enjoin the defendants, who are owners of the Mammoth placer mine, and who are working the same by hydraulic process, from injuring or washing away a certain water ditch known as the east branch of the Jacob ditch, owned by plaintiff, and which crosses defendants’ mine. Several ditches, among them the Jacob ditch and the Butcher ditch, take wat...
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The plaintiff brought this action to recover damages for the death of his wife, alleged to have been caused by the defendant’s servant, by negligently causing or permitting a team of horses to run over her. The defendant had judgment and the plaintiff appeals. At the trial the defendant was allowed, over plaintiff’s objection and exception, to introduce evidence that the defendant’s driver, who wa...
Views: 13
Defendant demurred to plaintiff’s complaint, the demurrer was sustained without leave to amend, judgment was thereupon entered for defendant, and plaintiff appeals therefrom. The complaint alleges that plaintiff and defendant own adjoining lots in the city of San Francisco; that on plaintiff ’s lot there is a building, erected twenty years ago, along the line between the two lots; that defendant c...
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— The defendant was convicted of the crime of rape, and sentenced to the penitentiary for ten years. The^rst point made is that the court erred in overruling defendant’s demurrer to the information on the ground that it did not state facts sufficient to constitute a public offense. The information charges rape upon the person of a female child under the age of fourteen years, but does not state th...
Views: 11
A money judgment was recovered in the justice’s court against the plaintiff herein, on the 19th of July, 1889, from which on the same day he appealed to the superior court upon questions of law and fact, .giving a sufficient undertaking for the appeal, and to stay execution upon the judgment. The record on the appeal was filed in the superior court September 5, 1889, but on the 21st of October the...
Views: 5
— A trial of the issues herein was had in Inyo County before Hon. J. F. Rooney, judge of the superior court of Tuolumne County, who had been directed by the governor to try the cause on account of the disqualification of the superior judge of Inyo County, and on the 26th of September, 1890, the judge filed his findings of fact and conclusions of law, in which he found “ that the plaintiffs herein ...
Views: 12
—Respondent recovered five thousand dollars damages for personal injuries, claimed to have been sustained by her through the negligence of appellant, and this appeal is prosecuted from the judgment and order denying a motion for a new trial. The first count of the complaint relies for a recovery upon the theory that plaintiff, a passenger, was not allowed a reasonable time to alight from the train...
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— In this action judgment was rendered foreclosing certain mechanics’ liens, and the appeal is prosecuted Ivom that judgment and the order of the court denying a new trial. Various liens were filed against the property by different mechanics, and actions brought thereon, which were subsequently consolidated under an order of the court. Appellants were the owners of a lot in the city of Ukiali, des...
Views: 1
This is an appeal from a judgment of non-suit in an action brought to recover the sum of one million, two hundred and seventy thousand dollars as damages for a breach of contract to deliver two thousand shares of stock of the American Contracting and Dredging Company of Hew York City. The contract was executory and in the following words: — “San Francisco, June 10, 1882. 1 “Charles Hanson, Esq.—De...
Views: 7
—Respondent, while walking upon the sidewalk of Larkin Street, in the city of San Francisco, was struck *385upon the head and quite seriously injured by a chisel that fell from a scaffolding above, upon which one of appellant’s employees was standing while engaged in affixing a cornice to the building. Damages were recovered in the lower court, and the appeal is from the judgment and an order deny...
Views: 9
Plaintiff appeals from an order granting defendants a new trial. *393The action is against sureties upon a bond given by the lessee to recover rent for the period of nine months, in the payment of which it is alleged default has been made. Defendants claim that the rent has been duly tendered month by month as it fell due, and therefore there has been no default. There was a covenant in the lease ...
Views: 8
Respondent Pfankuch, on January 6, 1882, applied to purchase certain school lands from the state. His application was approved March 15, 1883, and on August 28, 1883, a certificate of purchase was issued to him. On August 7, 1891, appellant Woodward applied to purchase the same lauds, and on October 5, 1891, appellant McFaul also applied to purchase said lands. Protests were filed by McFaul and Wo...
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— This appeal is from the judgment, but was taken within sixty days after the rendition and entry thereof. The action is brought to recover money due upon a contract for the sale of land. The plaintiff, who is the vendor, avers *407that he has performed all the conditions of the contract on his part, and that on the seventeenth day of January, 1890, the defendant refused to accept performance on h...
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The plaintiffs brought this action to quiet their title to certain real property in San Joaquin County, and *410they claimed title to the property under a deed of assignment made to them by M. E. Bryant, an insolvent debtor, for the benefit of his creditors, on February 16, 1886. The defendant denied the plaintiffs’ ownership or right to the possession of the property, and set up title to it in hi...
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— The complaint consists of three counts, each for the recovery of a specific sum of money on an alleged distinct cause of action. The action was commenced in the county of Lassen, and the summons was served on the defendant in the city and county of San Francisco on the twenty-ninth day of August, 1891. On the twenty-eighth day of September, 1891, the defendant filed a demurrer to the complaint o...
Views: 2
The complaint in this action states substantially a cause of action under section 738 of the Code of Civil Procedure, which authorizes one person to bring an action against another, claiming an interest in real property adversely to him, for the purpose of determining such adverse claim; and the prayer of the complaint is that the defendants be required to set forth the nature of their adverse cla...
Views: 19
This action is in the nature of ejectment, and was commenced April 22, 1889. It is alleged in the complaint that the plaintiff now owns, and for more than eight years he and his grantors have owned, certain described lauds in Lassen County; that defendant leased the said lands of plaintiff from year to year, commencing on the first day of March, 1886, down to the first day of March, 1889, for the ...
Views: 9
This action is brought by the city of Stockton to quiet title to “block 237 east of Center Street” in said city, which prior to 1872 was outside the city limits. The complaint alleges that prior to 1860, Charles M. Weber was the owner of the block in question, and dedicated it to the public as a cemetery, and that such dedication was accepted by the public prior to that year. The fourth paragraph ...
Views: 2
— Division Ho. 1 of a society known as the Ancient Order of Hibernians had several thousand dollars deposited in the Hibernia Savings and Loan Society. Dissension arose in the organization, and an action was brought against the Hibernia Savings and Loan Society by certain individuals claiming to compose the only true and genuine Division Ho. 1, to recover this money. Certain other parties making t...
Views: 6
This is an action of partition. Plaintiff and defendant Young are sisters, and also daughters of one M. A. Hinkson For title to support their respective claims Mrs. Bury relies upon a deed from her father, and Mrs. Young claims as a devisee under her father’s will. While suffering from a paralytic stroke, Hinkson called to his bedside for legal advise, as to the disposition of his property, one Ha...
Views: 18
This action is in trover for the conversion of hay. The plaintiff appeals from a judgment against her, and from an order denying her motion for a new trial. Appellant is the wife of Howard B. Porter, with whom she lived upon a farm upon which her husband had duly filed a declaration of homestead, and which farm was principally used for raising hay. The wife was the owner of about one hundred and t...
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— This is an action to enjoin the defendant from removing earth from the channel of Mormon slough, a natural watercourse within the corporate limits of the city of Stockton. The earth referred to is sedimentary deposits brought down by the waters of the channel. The facts agreed upon show that “ for the protection from overflow and destruction of the property of and in said city, and the public st...
Views: 1
Appeal from a judgment in favor of defendants, and from an order denying a motion for a new trial. The action was brought for a partition of the southeast two-thirds of the Rancho San Barnard!no, situate in the county of Monterey. The two plaintiffs claim to be the owners of an undivided one-eighth, each as tenants in common, with defendants Brandenstein and Godchaux, who are averred to be each th...
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On September 24,1891, the defendants were husband and wife and were residing on a tract of land in Nevada County. On that day the husband, Henry M. Place, executed in proper form and caused to be recorded a declaration of homestead on the said land, in which he stated that he estimated the actual cash value of the property to be fifteen hundred dollars. On October 10, 1891, Place filed in the supe...
Views: 4
Appeal from a judgment in favor of plaintiff, and from an order denying defendant’s motion for a new trial. The action was brought to recover one thousand dollars upon an instrument in writing executed by Thomas Rochford, deceased, on the third day of December, 1886, to be paid by his executors after his death to the plaintiff, provided said sum is not left for her use in his last will. The demand...
Views: 8
This litigation arises over an alleged right by plaintiff to the use of the waters of a certain spring, and the right to maintain pipes for the enjoyment of such use. The complaint in effect alleges “that the plaintiff is the owner of a certain tract of land in Marin County; that when plaintiff bought said land there was situated upon the adjoining land of the Old Sausalito Land and Dry Dock Compa...
Views: 7
There are two separate appeals in this cause by the defendants, one from the final judgment, and the other *492from an order denying a motion for a new trial. As they depend to some extent upon the same statement they will be considered together. The action was brought to foreclose a mortgage upon the steamer Eastern Oregon, executed at the city of New York, by the Oregon Pacific Eailroad Company,...
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— Action upon a policy of insurance. Plaintiff had judgment, from which and from an order denying a motion for a new trial the defendant appeals. On the eighteenth day of June, 1888, the State Investment' and Insurance Company, a corporation, the defendant herein, issued its policy of insurance against loss or damage by fire, to one E. B. Newkirk, to the amount of $1,200, upon a three-story frame ...
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Prior to November 12, 1887, Harriet H: Harding (afterwards the wife of Nathan Powers), and her sister Sarah Harding (afterwards the wife of Aurelius Sharp), each filed pre-emption claims upon certain lands of the United States situate in Contra Costa County, and had applied to the local United States land office to prove up and enter their respective parcels under the pre-emption laws of the Unite...
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—Defendants were indebted to each of two business houses in Chicago for goods sold and delivered. The accounts were assigned to the plaintiff, who had prior to that time been admitted to practice in the superior court, but who was a clerk in the office of John H. Dickinson, Esq., who appeared as plaintiff’s attorney. The answer denied the assignment and that plaintiff was the owner, alleged that p...
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This appeal by plaintiff is from an order granting a new trial to defendants Levy. The complaint states that during all the times in the complaint mentioned, plaintiff was the owner and in possession of a leasehold interest for a term of years, of the first floor of a certain building on O’Farrell Street, in San Francisco, which, on the seventeenth day of November, 1889, was and had been used by h...
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The plaintiff recovered a judgment in this action against the defendant for the conversion of certain wheat. The plaintiff claimed title to the wheat by virtue of his ownership of the land, and the defendant by virtue of a lease executed between him and one Boulware prior to the acquisition of the land by the plaintiff. The land is situated in Yuba County, and was originally owned by Lorenzo Giane...
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— Appeal from an order of the superior court denying the petition of Mary Eliza Johnson Howell for the revocation of letters of administration issued to one Eugene W. Kay upon the estate of William B. Johnson, deceased, and for her appointment as administratrix of said estate. The proceeding was commenced under section 1383 of the Code of Civil Procedure. The petitioner claims to be the legally ad...
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— There are two appeals in this case. The first is from a judgment or order of the superior court, granting letters of administration upon the estate of Frederick Heldt, deceased, to R. B. Maride, and refusing appellant’s application for such letters, and the other is an appeal from an order denying appellant’s motion for a new trial in the same matter. The respondent moves to dismiss both appeals...
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This is a proceeding upon habeas corpus, and the question involved is, whether it is competent for the board of supervisors of the city and county of San Francisco to provide by ordinance that it shall be unlawful to engage in the business of selling spirituous, malt or fermented liquors without a license, and at the same time to provide that no license shall be issued to any person for the purpos...
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The complaint in this ease alleges in substance the issuance of a policy by the defendant insuring plaintiff in an amount not exceeding $2,500 against loss by fire upon certain described property, and that plaintiff had other insurance upon the same and other property, all of which insurance aggregated $127,000; that during the term of such insurance the said insured property was greatly damaged a...
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Defendant demurred to plaintiff’s complaint, the demurrer was sustained, aud judgment was thereupon rendered dismissing the action, from which judgment the plaintiff appeals. The complaint alleges that Frank G. Newlands is the owner and in. possession and control of the Palace Hotel in the city of San Francisco, and of a public restaurant attached thereto, and conducted the same as a hotel and res...
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On January 6, 1892, William M. Willey filed in the superior court of the city and county of San Francisco an accusation in writing, verified by his own oath, alleg*588ing that the respondents Stow, Hammond, and Austin, “ while acting in the official capacity of commissioners of the Golden Gate Park,” entered into and signed an agreement with one Charles Warren, on or about August 12, 1891, whereby...
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This action was brought by the plaintiffs, as surviving trustees of the James Lick trust, against the various beneficiaries under the trust deed, for two purposes: 1. That the accounts of the trustees might be examined, allowed, and settled, and their administration of the trust sanctioned; 2. That they might have the permission of the court to pay over to the California Academy of Sciences and th...
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This is an original proceeding by mandamus to compel the superior court of Sau Joaquin County to change the place of trial of an action of ejectment to which the judge of said court are parties defendant. A motion to change the place of trial was made and promptly overruled. The proper remedy of the petitioner was an appeal from that order. In such cases mandamus is only proper when the court refu...
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Hiram A. Pearsons died July 7,1889, leaving a last will and testament, bearing date August 9, 1882, which was admitted to probate by the superior court of San Francisco, August 12, 1889, and letters testamentary issued thereon to Elliott J. Moore, who was named therein as its executor. On the 28th of January, 1892, the executor sold at public auction several parcels of land belonging to the estate...
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— Action to condemn land for the purpose of widening Mission Street in the city and county of San Francisco, in which judgment was rendered in favor of plaintiff. Six of the nine defendants have appealed from the judgment, and from an order denying their motion for a new trial. The action was commenced April 1, 1890, and the complaint conforms to the act of March 6, 1889, entitled “An act to provi...
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This is an original application for a writ staying proceedings in the court below upon a judgment during the pendency of an appeal therefrom to this court. The appellant has given the ordinary undertaking on appeal from the judgment required by section 941 of the Code of Civil Procedure. The application must be granted. It would have been entirely proper under the pleadings in the action to have e...
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— The plaintiff alleged in her complaint that on December 3, 1878, she was the owner of certain land ir Humboldt County, which on that day she conveyed to the defendant, Erastus J. Baker, upon the consideration and condition that he would henceforth apply a sufficient portion of the rents thereof for her support and maintenance during the remainder of her natural life; that this was the only consi...
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is an action to foreclose a 'chattel mortgage on the furniture of a lodging-house in the city of San Francisco. On the 19th of May, 1886, Mrs. Laura Brotherton was the owner of the property, and on that day sold it to Helen F. Gleason for the sum of five thousand five hundred dollars, two thousand five hundred dollars of which was paid in cash, and the balance in three promissory notes for ten hun...
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was a contest in the court below over the probate of the alleged will of John B. Smith. The contest was inaugurated by Harry B. Smith and Allie W. Plumb, son and daughter of deceased, upon the grounds: — 1. That at the date of the execution of the will (December 28, 1878) said testator was not of sound and disposing mind and memory. There were other objections to the will, but the evidence was con...
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Defendant Baird having failed to plead to the complaint, his default was entered, and thereupon the following *643judgment or order was made and entered on November 28, 1891: “Now, on the application of the plaintiff, it is ordered that plaintiff have judgment against the defendant, that the defendant disclose to the plaintiff the kind and quality and quantity of the securities held by him through...
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The plaintiff brought this action to recover damages for an alleged trespass and destruction of certain property, and set forth in her complaint the trespass of the defendant in entering upon her premises, charging that the defendant “tore down the ceiling overhead, a partition wall, the plastering on the front of said building, and caused great damage to plaintiff’s goods and business, and render...
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The defendant was convicted of the crime of murder of the second degree, and was sentenced to serve a term of fifty years in the state prison. The first point made by counsel for appellant is that the court below erred in allowing Dr. Wright, one of the witnesses on behalf of the prosecution, to testify as an expert with respect to the distance at which the pistol carried- by the defendant at *651...
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This is an appeal by the administrator with the will annexed from an order of partial distribution requiring the appellant to pay to Sallie Levenstone the sum of $3,000. By the terms of the will of the decedent, his interest in the copartnership of Newman and Levinson was given to Benjamin Newman, one of his copartners, in trust, to retain one half of the annual profits for his services during the...
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This was an action in claim and delivery. Plaintiff had judgment, and S. Selig, one of the defendants, appeals. The cause comes up on the judgment-roll. The action was commenced on the nineteenth day of November, 1890. The complaint avers that the plaintiff was on the seventeenth day of November, 1890, the owner and entitled to the immediate possession of all the following goods and chattels, to w...
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The defendant was convicted of the crime of obtaining money under false pretenses, and sentenced to serve a term of seven years in the state prison at Folsom. On April 13,1891, one J. H. Alderson sold and delivered to the defendant certain horses, buggies, harness, etc., comprising the outfit of his livery stable in Los Angeles, and took in payment therefor an assignment of a note secured by a mor...
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Plaintiff seeks by this action a judgment that a certain strip of land, sixty feet in width by fifteen hundred feet' in length, extending from the defendant’s station at Field’s Landing, in Humboldt County, to the county road, is a public highway, and to compel the removal of certain obstructions thereon. Judgment was rendered in its favor, and the defendant has appealed. In November, 1882, the la...
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This action was brought to enjoin the defendant O’Brien, as tax collector, from selling a certain lot, belonging to the plaintiff, for taxes levied to pay the principal and interest of the “Dupont Street bonds,” under the act of the legislature providing for the widening of Dupont Street, approved March 23, 1876. (Stats. 1875-76, p. 433.) The complaint shows that the property is situated in the di...
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One Hardesty recovered a judgment against the defendant on October 28, 1885, for the sum of $17,548.19. The judgment was assigned by him to one McCIung, and by the latter assigned to this plaintiff, who thereafter brought this action to recover the amount due on the judgment. The only point made by the appellant on this appeal is that the plaintiff failed to show at the trial that the summons in H...
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The facts of this case are fully stated in the opinion of the court found in 90 Cal. 581, where the judgment and order of the trial court were reversed and the cause remanded for a new trial. A new trial was had, judgment again went for plaintiff, and the case is now before us for the second time. Plaintiff in Los Angeles purchased from defendants in Omaha, a carload of eggs to be delivered in Los...
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This action was brought to recover from the defendant the value of certain personal property, lost by the burning of the Hotel Del Monte, April 1, 1887. Judgment was rendered in favor of the defendant, and the plaintiff has appealed. It was held in Fay v. Pacific Improvement Co., 93 Cal. 253, upon the facts then before the court, that the defendant, as the proprietor and keeper of the Hotel Del Mo...
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The petitioner was convicted in the police court of the city and county of San Francisco of selling opium without a physician’s prescription under order No. 2085 of the board of supervisors, approved July 18, 1889. Section 1 of the ordinance provides that “It shall be unlawful for any apothecary .... or any person whatever to sell .... to any person in the city and county of San Francisco any opiu...
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This is an action to condemn certain lands for road purposes, by virtue of the provisions of article 6, title 6, part 3, of the Political Code, and of title 7, part 3, of the Code of Civil Procedure. The contemplated road is one designated in section 2692, Political Code, as a private road. Proceedings were duly taken by the board of supervisors, under the statute, upon the petition of Cheesebroug...
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Plaintiff appeals upon the judgment-roll. The points presented arise upon the pleadings and the findings of the court. Plaintiff sues for services as an attorney and counselor at law. His complaint states three causes of action. In the first it is alleged that defendant contracted with him June 1, 1888, for his services, agreeing to give him $35 per month as a general retainer, and as compensation...
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This is an action to quiet the plaintiff’s title to a parcel of land in the city of Los Angeles, and the complaint is in the usual form. The defendant, by his answer, denied all the averments of the complaint; denied that he had no right, title, or interest in or to the land; and alleged that he was the owner thereof in fee simple, and was such owner and entitled to the possession of the land when...
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This appeal was taken from a judgment in favor of the plaintiff and from an order refusing a new trial. The appeal from the order has been dismissed by the appellate tribunal, and the matter now stands on an appeal from the judgment alone, This appeal was not taken within sixty days from the rendition of the judgment, so that no exception to the decision on the ground that it is not supported by t...
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The defendant appeals from a judgment rendered against him, and from an order denying a new trial. The facts are presented in several bills of exceptions. The cause was set for March 3, 1892, in the superior court, and was on the calendar for trial. The defendant’s attorneys were Messrs. Willis & Appel, and on that day Mr. Willis was absent from the county on business, and Mr. Appel was unable to ...
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Action to quiet title to land. On the first trial there was a judgment for plaintiffs, from which, and an order denying their motion for a new trial, the defendants appealed, and the judgment and order were re*729versed and a new trial ordered: 82 Cal. 174, 16 Am. St. Rep. 101, 23 Pac. 9. On the new trial, judgment passed for defendants, from which plaintiffs bring this appeal on the judgment-roll...
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Appeal from an order granting a motion for an alias writ of possession. In 1873, Rousset recovered judgment in ejectment against Peter McGrath and three other defendants for the possession of certain lands, and that judgment was affirmed on appeal in May, 1882: 60 Cal. 328. August 24, 1882, a writ of possession was issued thereon, which was fully executed August 28, 1882, and under which appellant...
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Defendants appeal from the judgment and from an order denying a new trial. The complaint is in the ordinary form, upon a promissory note, which is set out, and is as follows: *773“$2,000 San Bernardino, Cal., July 16, 1888. “On August 16, 1888, at three o’clock P. M. of that day, (no grace), for value received, in gold coin of the government of the United States, we promise to pay to the order of ...
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C.—- This is an action to quiet the plaintiff’s title to a strip of land, forty feet wide and twelve hundred and thirty-six feet long, in the city of Los Angeles. The court below gave judgment for the defendant, from which, and from an order refusing a new trial, the plaintiff appeals. The facts found by the court are in substance as follows: On October 26, 1887, the plaintiff, a corporation, was ...
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Action to foreclose a materialman’s lien. Appellant is a corporation engaged in the lumber business. Sheldon & Son are copartners, and contracted in writing with the defendant Annie C. Severance to furnish the material and erect upon her separate property a dwelling-house. Appellant furnished lumber to Sheldon & Son for the building, and a notice of lien therefor was filed. Both parties to this ap...
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Appellants commenced this action for partition of the property known as “Woodward’s Gardens,” consisting of three parcels of land, with the buildings, structures, improvements, art gallery, museums, menagerie of wild animals, and other personal property. The contention of appellants in the court below was, and their contention here is, that the entire property, real and personal, constitutes one p...
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This is an action to foreclose a mortgage, in which the plaintiff had judgment, and the defendant appeals from the judgment, and from an order refusing a new trial. *722A preliminary objection is made to the statement, on the ground that it was not served in time. The judge made an order extending the time thirty days, in which “to serve notice of intention to move for a new trial, and the propose...
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Action to recover $586.39 for goods sold and delivered. The complaint is in two counts—the first for $503.19 for goods sold and delivered by plaintiff; and the second for $83.20 on account of goods sold and delivered to defendant by Prescott & Pierce, copartners, assigned to plaintiff. The defendant made no denial of the first count, but denied that he was indebted to Prescott & Pierce in any sum ...
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This action was brought to recover damages for a personal injury, alleged to have been caused through the negligence of defendants. It is alleged that defendants, as partners, were engaged in quarrying rock and transporting the same by railroad, and employed one Dusy to haul the rock from the quarry to the railroad station, and there load the same on the cars; that by the terms of their contract w...
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Appeal from the judgment and an order refusing a new trial. This action was brought to enjoin a sale under an execution against one Elise Deste, the daughter and grantor of the plaintiff. Espittalier, the judgment creditor, is made defendant with the sheriff. The answer justifies the attempted sale on the ground that the deed to plaintiff was without consideration, and was made to hinder, delay, a...
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Action to recover possession of a house and lot situate in Woodland, Yolo county, and damages for the detention, rents, etc. Plaintiff had judgment, from which defendant appeals. The cause comes up on the judgment-roll. The complaint avers, in substance, among other things, that on or about May 1, 1880, one Jacob Hays, being the owner of the locus in quo, did lease and let the same to the defendan...
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The plaintiff commenced this action to recover from the defendants the sum of $3,000, alleged to be due him from them as commissions for the sale of certain mining property situate in the county of Amador. The complaint was filed in the superior court of Amador county on-September 5, 1891, and the summons was duly served on defendants in that county on the 15th of the same month. In due time defen...
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This appeal is taken from a judgment of dismissal of a petition for a writ of mandate, after de*783murrer sustained to such petition on the ground that it did not contain facts showing a cause of action. It depends for its determination upon the construction to he given to subdivision 23 of section 25 of the county government act of 1891, as affecting the provisions of section 3766 of the Politica...
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This case has been here in various forms, several times: Brickell v. Batchelder, 62 Cal. 623; Batchelder v. Brickell, 75 Cal. 373, 17 Pac. 441; Batchelder v. Baker, 79 Cal. 266, 21 Pac. 754; and Baker v. Brickell, 87 Cal. 329, 25 Pac. 489, 1067. The case at bar must be affirmed upon the authority of the case last above mentioned—87 Cal. 329, 25 Pac. 489, 1067. That case, it is true, was decided up...
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The defendant and one Lulu Franks were examined before a magistrate, and held to answer upon a complaint charging them with the crime of larceny, committed in the county of Placer, on or about the seventh day of June, 1891, by “willfully, unlawfully, feloniously, and maliciously stealing, taking, and carrying away one watch of the value of $75, the property of one S. T. Bowers.” Thereafter the dis...
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Appeal from a judgment for defendants, and from an order denying plaintiff’s motion for a new trial. A. W. Sisson, W. H. Wallace and Clark W. Crogker were co-partners in the name of Sisson, Wallace & Co. Wallace died intestate, October 2,1881. This action was commenced in May, 1884, against Sissop and Crocker, and, Sisson having died before judgment his executors were substituted, and defendant Cr...
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This action was brought to recover the sum of $500, the balance due on a sale of stock of merchandise and store fixtures sold and delivered by the plaintiff to defendant, at Los Angeles, May 31, 1890. The real question in issue is this: Plaintiff avers the sale was made for $1,500, to .be paid as follows: $1,000 in cash, the remaining $500 to be paid as follows: When $100 worth of stock was sold, ...
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Plaintiff appeals from the judgment and an order denying his motion for a new trial. The action was brought to enjoin defendants from constructing a bulkhead or embankment by which, it is alleged, certain waters would be turned upon plaintiff’s premises, to his injury. Defendants answered, and also filed a cross-complaint, seeking affirmative relief against the plaintiff. The findings of the court...
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The plaintiff appeals from a judgment of nonsuit entered against him, and from an order denying his motion for a new trial. The action is for forcible detainer of a tract of land containing about four hundred acres. The complaint was framed under the second subdivision of section 1160, Code of Civil Procedure, alleging that at the time of defendant’s entry, and for five da^s prior thereto, the pla...
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This action was brought to recover the possession of real estate under section 380 of the Code of Civil Procedure. Two defenses are pleaded. The first simply denies plaintiff’s title and right of possession. In the second, it is shown that plaintiff claims title under and from defendant, and it is averred that the deed from defendant, under which plaintiff claims, was intended and received as secu...
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This appeal is from an order somewhat in consistent in its terms, denying and dismissing a motion for a new trial. To deny a motion is to entertain and act upon it, and at the same time to end it, when, of course, it cannot be dismissed. A dismissal is a refusal to entertain it. The two forms were adopted because the decisions of this court have caused some doubt as to what is the proper remedy in...
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The plaintiff commenced this action on September 30, 1890, to quiet his title as against the defendant to a tract of land in Los Angeles county, described as “fractional section 7, in township 2 north, range 16 west, San Bernardino base and meridian,’’ The complaint alleged “that the plaintiff is now, and for a long time hitherto has been, in the possession of and is the owner (subject only to the...
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This action is for an injunction to restrain defendant from removing certain water-pipes, and depriving plaintiffs of water supplied thereby, from a certain spring, *54and for damages for alleged interruptions thereof. The executors of Alexander Forbes were made parties defendant, but they did not answer, and do not appeal. Plaintiffs had judgment granting a perpetual injunction, from which, and a...
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This is an appeal from an order of the superior court, setting aside an order of dismissal and vacating a judgment. The cause had been set down for trial on the fifteenth day of October, 1890, but a hearing had been delayed from day to day by reason of other causes on the calendar having precedence, until the morning of October 23d, when it was called for trial at five minutes after 10 A. M., and,...
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1. Under defendant’s contract of subscription for the stocks of plaintiff, as contained in the prospectus signed by defendant, and upon the facts alleged in the complaint as to plaintiff’s calls or demands for the amount agreed to be paid for such subscribed stock, the plaintiff is entitled to maintain this action: Marysville Electric Light Co. v. Johnson, 93 Cal. 546, 27 Am. St. Rep. 215, 29 Pac....
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Action upon two injunction bonds to recover $5,000 damages alleged to have been sustained by plaintiff’s intestate, by reason of the injunctions. The plaintiff had judgment for $500, with interest thereon from February 29, 1884 (the date of filing original complaint), until the date of judgment, May 4, 1889, and costs, taxed at $188.20. The defendants appeal from the judgment, and from an order de...
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Action to recover damages for an alleged breach of contract. A jury trial was had, and the plaintiff obtained a verdict and judgment for $1,000 damages. The appeal is from this judgment and an order denying defendant’s motion for a new trial. The complaint alleged that on February 10, 1887, plaintiff and the defendant (a corporation) mutually agreed that plaintiff should serve the defendant from t...
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It is alleged in the complaint that while plaintiff was the owner, and entitled to the possession, of certain personal property (household furniture), the defendant wrongfully converted the same to his own use, to the damage of the plaintiff in the sum of $2,000. The defendant denies the alleged title of the plaintiff, and justifies the taking and alleged conversion of the property under writs of ...
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Plaintiff is engaged in the business of manufacturing engines and other machinery in Chicago, Illinois, and the defendants are copartners doing business in San Francisco. Plaintiff brought this action to recover a balance upon book account, and also the amount of a promis*731sory note, due him from defendants for goods sold. There was no contest as to these claims, hut defendants, by way of counte...
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In Stewart v. Powers (No. 14,956, this day filed), 98 Cal. 514, 33 Pac. 486, the appeal was from the same judgment-roll from which the above-named appellants have taken this appeal. *34As to appellants Sarah E. Sharp and Aurelius Sharp, the facts and the questions of law presented are precisely the same as in No. 14,956, and, upon the authority of that ease, the judgment should be affirmed as agai...
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This is an action to recover the value of certain materials furnished by the plaintiffs to the defendant Stauffer, and by him used in the construction of a house for the defendant Morehead, upon a lot of land owned by her, and to enforce a lien therefor on the said house and lot. The court below found, among other things: “That the amount agreed to be paid said contractor, Stauffer, for the erecti...
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This appeal is from a judgment, and was taken within sixty days after its rendition. The question *844presented is whether the trial court erred in overruling defendant’s motion for nonsuit. It does not appear that any further evidence was introduced after the motion was made. The complaint shows, by proper averment, that on the nineteenth day of July, 1887, the defendant was indebted to Sing Lee ...
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Action to foreclose a mortgage executed by Lyman W. Estes to the plaintiff, to secure a joint and several promissory note for $1,200 made by both defendants. The only defense to the action is that the consideration for the note and mortgage was unlawful, as being contrary to the policy of express law. Judgment was rendered in favor of the plaintiff, and defendants appeal from the judgment, and fro...
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This is an appeal from a judgment foreclosing a mortgage. Appellants Jaynes, Moffatt and Conkling, and J. M. Taylor, Andrew Stephens and others, were made defendants. The mortgage was executed February 3, 1887, by appellant Moffatt and one H. Clay Graham, since deceased, to secure their two joint and several promissory notes for the aggregate sum of $20,540, with interest at eight per cent per ann...
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Action for malicious prosecution of the plaintiff on a charge of having bought and received stolen property, for which he was tried in the police court and discharged. The jury returned a verdict for plaintiff, assessing his damages at $3,333, for which sum judgment was rendered. The defendant brings this appeal from an order denying his motion for a new trial. 1. Counsel for appellant contend tha...
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Action to recover money judgments, and to enforce mechanics’ liens for labor done and materials furnished in constructing a brick building known as the “Drexler Building.” The two actions were consolidated and tried together. Drexler was the owner of the building, Shain the original contractor, Petersen a subcontractor directly under Shain, and Mooser a subcontractor under Petersen. In the first a...
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This is an appeal from a judgment in favor of plaintiff for $350, as an attorney’s fee in an action in equity to enforce a pledge upon certain stocks given to secure the payment of a promissory note made by defendant to plaintiff for $3,500. The case comes up on the judgment-roll. The promissory note was in the usual form, with this addition: “And I further agree that, in the event of suit being b...
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This is an application for a writ of prohibition, and the following state of facts is disclosed by the petition: The Grangers’ Bank of California was the owner of certain warehouses, situated in the counties of Fresno, Tulare, etc., some of these warehouses being erected upon the lands of the bank, and others on the lands of the railroad company, leased to the bank by that corporation. Upon the si...
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This appeal is from a judgment rendered in favor of appellant, because of the refusal of the court to treble the damages found by the jury in his favor. The action is based on section 3344 of the Political Code, and the complaint charges that certain property of the plaintiff, consisting of tan-bark, cordwood, etc., was destroyed by a forest fire negligently started by the defendant on its own lan...
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This action was brought to obtain a judgment and decree that the land described in the complaint, the title to which stood in the name of P. J. Philips at the time of his death, and also certain personal property, was the property of the plaintiff, and that P. J. Philips, deceased, was her trustee, and that his estate had no right or interest in said property, or any part thereof. Judgment went fo...
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This is a contest over the last will of James McGinn, who departed this life on or about February 6, 1888, at the city and county of San Francisco, leaving a last will, bearing date September 26, 1887, by which he left to his executors, in trust for his wife, Johanna McGinn, during her life, all of his property, real and personal, of the value of $60,000 or more, and, upon the death of his said wi...
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The defendant is an association incorporated under the laws of the commonwealth of Massachusetts for several purposes, one of which is: "5th. To establish a benefit fund from which, on the satisfactory evidence of the death of a beneficial member of the order who has complied with all its lawful requirements, a sum not exceeding five thousand dollars shall be paid to the family, orphans, or depend...
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Appeal by defendant, Swyney, from a judgment in favor of the interyener, Honora Sharp, and from an order denying his motion for a new trial. An action.was commenced October 17, 1887, by plaintiff, as the executor of the will of George F. Sharp, deceased, against the defendant Swyney et al., to compel said Swyney to convey to plaintiff a certain lot in the city of San Francisco, and to recover the ...
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The defendant was convicted of the crime of arson in the second degree, and has appealed from the *249judgment and from an order denying his motion for a new trial. The only grounds urged for a reversal are that the court erred in giving to the jury portions of two instructions asked by the people, and in its rulings upon the admissibility of certain evidence. It was proved that the defendant was ...
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This action was brought to recover damages for personal injuries alleged to have been sustained while plaintiff was crossing Ninth street, in San Francisco, at its intersection with Howard, through being run into by a wagon negligently driven by the defendant. The case was submitted to a jury, which returned a verdict for plaintiff, and defendant appeals from the judgment, and from an order refusi...
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Mary F. Corcoran, as administratrix with the will annexed of the estate of William Corcoran, deceased, brought suit against John Hinkel and a large number of other defendants, among whom were the German Savings and Loan Society, William M. Pierson, John R. Jarboe and S. H. Regensberger, the principal object of which was to be permitted to redeem certain premises therein described which Corcoran ha...
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This is an action brought to foreclose a mortgage given by the defendants, George W. Roadhouse and wife, to secure a promissory note for $1,550 and interest, made by said defendants, Roadhouse and wife. The note and mortgage were dated March 25, 1885, and the note was payable to Frederika Palmtag, or order, one year after date. The action was commenced July 9, 1890—as may be seen, more than four y...
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This action was brought by the town of Santa Monica, a municipal corporation of the sixth class, in the recorder’s court, to recover the amount of a license alleged to be due from the defendants for keeping a saloon, the amount of the license fee fixed by the ordinance being $300. In the complaint, plaintiff alleged the amount required to be paid to be $300, but remitted all in excess of $299.99, ...
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Defendants take this appeal from the judgment and an order denying a new trial. This ease has been here before: 88 Cal. 537, 26 Pac. 355. In the opinion on the *242first appeal the substance of the complaint and the contract sued on are fully stated. The answer denies the existence of the contract, but admits that such a contract was agreed upon, and avers that it was to have been reduced to writi...
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This is an action brought by a road overseer to cause certain obstructions to be removed from the public highway. The cause was tried with the aid of a jury, which found for the defendant. The plaintiff appeals from the judgment, and from an order refusing a new trial. There are numerous assignments of error in the record, but I think it necessary to notice but a few of them. The existence of the ...
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The defendant was indicted jointly with his father, whose appeal was recently disposed of here (People *88v. Fagan, 98 Cal. 230, 33 Pac. 60), and William Ducker. They had separate trials and the cases, as presented in the record, differ widely. By this record it appears that one P. Weyer had about two hundred head of cattle on the Booth ranch, in the county of Stanislaus, twenty-two miles west of ...
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Action on twelve promissory notes—two for $80 each, eight for $75 each, and two for $60 each. The answer of defendant admits the making of the notes, but alleges that each note “was without good or valid or legal con*63sideration; that the only consideration therefor was an account for the sale and delivery by plaintiff to defendant by retail, or by the drink, of spirituous and malt liquors, wine,...
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This is an action to recover damages for trespasses alleged to have been committed by the defendant in entering upon the land of the plaintiff, riding over and across the same; and cutting down a gate thereon. The defense set up in the answer and relied upon at the trial was that the gate cut down was upon a road which had become a public highway by dedication and user by the public for more than ...
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This is the second appeal in this ease: Cleary v. Folger, 84 Cal. 316, 18 Am. St. Rep. 187, 24 Pac. 280. The former appeal was from a judgment of nonsuit, and the judgment was reversed and the cause remanded for trial. In the lower court the defendant amended his answer, adding a claim for recoupment against the demand of plaintiff. On the last trial the defendant proved and the court found that b...
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Action to quiet title to land in Newcastle, in the county of Placer. The controversy is in regard to the boundaries. The plaintiff had judgment, and the defendant appeals from the judgment and an order refusing a new trial. The parties own and occupy contiguous places on Depot street, and both derive title from H. F. Albee. It is agreed that A. N. Page formerly owned a larger tract of land, of whi...
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This is an appeal from the judgment, with a bill of exceptions, and is the second appeal in the case: See 87 Cal. 561, 25 Pac. 756, and 26 Pac. 825. The nature of the case, and most of the facts necessary for understanding it, are there stated. As stated, the action was brought to have a contract reformed to accord with the alleged intention of the parties, which, it was averred, was to sell two a...
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In Farmers & Merchants’ Bank v. Board of Equalization, 97 Cal. 318, 32 Pac. 312, most of the ques*224tions involved in this appeal were determined adversely to the respondent. The additional point now presented, that the legislature could not confer upon the state hoard of equalization authority to extend the time within which the county board of equalization could act, must also, under the princi...
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The defendants are husband and wife, and this action is in the nature of a creditors’ bill in equity, to set aside two conveyances of a certain tract of land (about three hundred and twenty-seven acres) situate in the county of San Joaquin, made by A. S. Olsen to his wife, Anna, on the ground that they were made “with intent to hinder, delay, and defraud the creditors of the said A. S. Olsen, and ...
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Appeal from a judgment upon demurrer to the complaint. The complaint alleges the incorporation of defendant, and sets out its articles of incorporation, constitution, and by-laws in full. Its business, as shown by its articles of incorporation, is to buy and sell stocks, bonds, and securities. Except as to one feature, the mode of conducting its business is the same as that of other exchanges with...
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The minutes of the trial of this case and which constitute a part of the record,-state that the court read to the jury “instructions asked by the respective parties, and allowed by the court, and those given by the court on its own motion”; but the record filed here does not contain any of the instructions thus referred to, except those given upon request of the defendant. One of the points made b...
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This appeal was taken by the defendant from the judgment and from the order refusing a new trial. It is an action to recover $675 for services as attorney at law, alleged to have been rendered defendant “between the first day of June, 1889, and the first day of June, 1891, in prosecuting and defending suits, and for like services, at his request, in drawing, copying, and engrossing of divers conve...
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Action to recover from the defendant, Fox, and his guarantors, Witzemann & Staiger, copartners, the sum of $431.29, for goods sold and delivered to Fox by plaintiff’s assignor, one H. A. Smith, who did business under the name of “Smith’s Cash Store.” The action is founded upon a written guaranty of Witzemann & Staiger to the San Francisco and North Pacific Railroad Company, a corporation, which ow...
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The appellant’s right of recovery depends upon the performance by Hartman of his contract with Olvera to procure the issuance of a patent for the Rancho Ex-Mission of San Diego. This agreement is set forth at length in the opinion of this court rendered upon the former appeal: 91 Cal. 405, 27 Pac. 1082. Upon that appeal the judgment of the court below was reversed for its failure to make a suffici...
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Appeal from judgment and order denying new trial. From the findings and undisputed evidence it appears that on December 29, 1886, Henry Bothschild by indenture leased to the plaintiff the premises known as No. 835 on Sacramento street, San Francisco, for the term of three years and five months, beginning January 19, 1887, at a monthly rental of $125. On the same day the parties to the lease execut...
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This is an action on a written contract entered into between the assignor of plaintiff and defendant for the sale and purchase of real estate, and is brought to recover a balance of $5,863.24 on account of the purchase price, and interest from August 2, 1887, at ten per cent per annum. Plaintiff had judgment, from which, and from an order denying a motion for a new trial, defendant prosecutes this...
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This action was brought to recover damages for personal injuries, and the verdict was for the defendants. Plaintiff appeals from an order refusing a new trial. Respondents contend that the order must be affirmed, without considering the alleged errors, because plaintiff lost his right to move for a new trial by his failure to prepare and serve his proposed statement in time. Notice of intention to...
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This is an action to foreclose a lien for street assessment in the city of Stockton. The plaintiff had judgment as prayed for in his complaint, from which judgment ,and from an order denying a new trial defendants prosecute this appeal. A demurrer was interposed hy defendants to the complaint upon the ground that the same did not state facts sufficient to constitute a cause of action, and upon the...
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This action is brought to annul a contract for the purchase of a.lot of land in the city of Pasadena, county *268of Los Angeles, entered into between the assignor of plaintiff and grantor of defendant on the thirty-first day of August, 1887, and to recover back so much of the purchase money as had been paid on account of such contract. Defendant answered, admitting the execution of the contract, a...
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This action is upon an undertaking given to procure the release of property from an attachment. The writ was issued in an action brought by Alfred Moore, as plaintiff, against one Dorward. The undertaking is in the form prescribed by statute, and a copy is attached to the complaint. It recites the issuance and levy of the attachment, that the defendant had applied to the court for an order releasi...
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This is an action to recover from respondent, who was a stockholder of the plaintiff corporation, the unpaid balance of an assessment upon eighteen hundred and eighty-three shares of its capital stock. The court below found that the respondent was not, at the time the assessment was levied, the owner of the stock, and that the board of directors had not, before the commencement of this action, ele...
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It is alleged in the complaint in this action that by a written contract the defendant authorized and employed the plaintiff as his agent and broker to sell certain real property situate in the county of Alameda, “generally known as the ‘Jose Reyes Bernal Rancho, ’ ” and agreed to pay plaintiff for his services as such agent and broker what said services were reasonably worth. That thereafter “pla...
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This action was brought by appellant to recover from the defendant the sum of $1,075.59, the tax assessed and collected by seizure upon its solvent and unsecured credits. A demurrer was interposed to the complaint, which was sustained, and judgment rendered thereon for defendant, and plaintiff appeals. This cause is submitted upon the briefs filed in Security etc. Trust Co. v. Hinton, the same def...
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The transcript in this case presents three appeals, based upon three separate bills of exceptions: the first from an order striking out certain items in two of defendant’s bills of costs, the second from an order denying defendant’s application for a further allowance for costs and expenses, and the third from an order allowing the plaintiff to mortgage his property. Each of the orders appealed fr...
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The petitioner was accused by information of the crime of grand larceny, and, after a trial in the superior court, convicted of petit larceny. His imprisonment in the county jail upon that conviction is alleged to be unlawful, because the superior court has no jurisdiction of petit larceny. *310But the charge of grand larceny gave the superior court jurisdiction, and the statute authorizes a convi...
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This is a proceeding upon habeas corpus instituted by the petitioner, Carroll, on behalf of John F. Burris, who is alleged to be unlawfully restrained of his liberty. The return to the writ consists of nothing more than the commitment under which the prisoner is held, which recites certain proceedings on attachment for an alleged contempt of court. • These recitals show that Burris obtained from t...
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Action to enforce a lien upon a house owned by defendant Lasar for labor done upon an addition to said house for the defendant Sonneckson, who, as original contractor, constructed said addition. The judgment was in favor of the plaintiff, but the court granted a new trial, and this appeal is from the order granting a new trial. Whether or not the plaintiff had filed his claim of lien within thirty...
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On March 8, 1892, there was a general municipal election in the city of Sacramento, at which the defendant, Rogers, received the highest number of votes for the office of chief of police of that city. He received a certificate of election and entered upon the duties of the office. This proceeding was brought in the superior court, under section 1111 et seq. of the Code of Civil Procedure, to conte...
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In this case a demurrer to the complaint was sustained by the court below, and, as plaintiffs declined to amend, judgment passed for defendants. Plaintiffs bring this appeal from the judgment on the judgment-roll, and contend that the court erred in sustaining the demurrer. The material substance of the complaint may be briefly stated as follows: In May, 1887, George E. White commenced an action t...
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The respondent was tried and found guilty of omitting and refusing to pay over to his successor in office moneys received by him as county clerk. On the day fixed *827for passing sentence, the defendant moved for a new trial, and also in arrest of judgment. The motion for a new trial was heard, but not disposed of, and the court granted an order arresting the judgment; and from this order the peop...
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Ejectment for certain lands claimed to be a part of the Rancho Santa Paula y Saticoy, in Ventura county. The controlling question in the case is the location of the southerly line of the rancho. This line is set forth in the patent as follows: After leaving station S. P. 13, “thence S. 42, ]4 E., at 30 links enters bed of Santa Clara river, course S. W.; at 4 chains, intersects offset of township ...
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The plaintiffs claim to own, and to be entitled to divert and use upon their lands, 567/10,000 of all the waters flowing in and from the San Antonio canyon, which is located partly in Los Angeles county and partly in San Bernardino county; and they brought this action to have their title to the part of the said waters, so claimed by them, quieted, as against the defendants. The answer denied all t...
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Appeal from an order refusing to dissolve a preliminary injunction. The complaint states facts sufficient to justify the issuance of the injunction sought to be dissolved, and the court did not err in its ruling upon the motion to disolve the same. Order affirmed. We concur: Fitzgerald, J.; McFarland, J....
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This is a contest in regard to the right to purchase state lands, and this is the second appeal to this court: 90 Cal. 43, 27 Pac. 48. On the first trial it was found that plaintiff in his application to purchase had falsely stated that there was no possession of any portion of the land adverse to his possession. It was found that in every other respect the matters stated in his application were t...
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On the eighth day of May, 1867, the plaintiff entered into a written contract with George Cofran, superintendent of streets of the city and county of San Francisco, to grade Market street, in that city, from Valencia street to Castro or Seventeenth street. Under the contract the work was to be commenced within thirty days and completed within three hundred and sixty-five days after its date, and t...
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This is an appeal by Alfred Clarke from an order of the superior court adjudging him to be an insolvent debtor. We- can discover from the record only two points legitimately before us: (1) Did the court err in overruling the demurrer to the petition ? And (2) does the evidence warrant the finding of appellant’s insolvency ? As to the first point, appellant has pointed out no defect in the petition...
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The appeal in this case purports to be from a judgment upon the judgment-roll with a bill of exceptions. There are so-called “findings .and conclusions of law ’ ’ set out in the transcript, but they do not appear to have been signed by the judge or filed with the clerk; nor was there any judgment entered thereon, as required by sections 632, 633 of the Code of Civil Procedure. With the exception o...
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J.G. Crowl, the appellant, was indicted for the crime of an assault with intent to commit rape upon one Ida Trybschenek, a female child under ten years of age, and upon trial was convicted as charged. The appeal is from the judgment, and the cause comes up on the judgment-roll, without any bill of exceptions. At the trial the court, at the re*356quest of the prosecution, among other instructions t...
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The plaintiff, a foreign corporation, was engaged in the insurance business in this state from July, 1887, to and including January, 1891. Its principal place of business was in the city of San Francisco, but it had a branch office in-the city of Los Angeles. From January, 1888, to January 10, 1891, defendant was the agent of plaintiff, and the manager of its business at its Los Angeles office, an...
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In April, 1888, one Buell was the owner of an interest in certain lands in Los Angeles county and the defendant was the owner of a similar interest therein. The defendant was a resident of California, but was at that time in Louisville, Kentucky, where he had formerly resided, and where the plaintiff was then residing. He had known the plaintiff and had been on friendly terms with him for many yea...
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This action was brought by Magary against the appellants to enforce a street assessment. He obtained *306judgment in the superior court, and defendants appeal from the judgment, and an order denying their motion for a new trial. After the appeal was taken, Magary died, and his administrator, C. B. Williams, was substituted in this court. Upon their motion for a new trial, appellants specified thre...
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Porter, as assignee of one Abbott, brought suit against appellant on several causes of action, among which was one for the sum of $2,500, as commissions claimed to have been earned by Abbott in effecting a transfer of property between appellant Fisher and one J. A. Baxter. The property Fisher conveyed and transferred to Baxter consisted of two hundred and eighty acres of land in Tulare county, tog...
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The complaint is in ejectment, in the usual form, and the plaintiff’s title is evidenced by a patent from the United States. Defendant answered, denying all the allegations of the complaint except that alleging defendant’s possession, and filed a cross-complaint setting out facts upon which he claims that plaintiff should be adjudged a trustee of the legal title for his benefit, and be required to...
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This is an action of ejectment brought against the defendant Hoff and over one hundred others to recover possession of the south half of the San Fernando rancho in Los Angeles county. Upon the facts shown at the trial we think there can be no question as to the right of the plaintiff to recover in this action, and the question of error in the instructions becomes immaterial. The supreme court of t...
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The plaintiffs were being carried as passengers in one of the coaches of the defendant on the night of *359December 3'0,1891, from Santa Margarita to San Luis Obispo; and, while going down the slope of the mountain toward the latter place, and about three miles therefrom, the coach was upset and Mrs. Knight sustained serious injuries, for which this action was brought. The jury rendered a verdict ...
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This appeal is prosecuted by the defendant from a final judgment in favor of plaintiffs and comes up on a bill of exceptions. The action was brought by plaintiffs, *183factors and commission merchants at Yokohama and Hiogo, in the empire of Japan, to recover from the defendant, a merchant, in the city and county of San Francisco, $4,999.60 Mexican dollars, of the value of $4.149.67 gold coin of th...
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Action in the nature of ejectment to recover possession of an undivided half of a parcel of land situate in the county of Santa Cruz, and containing about thirty-five acres, which plaintiff claims as a probate homestead. It is alleged in the complaint that the plaintiff is the owner, and entitled to the possession, of the demanded premises; that defendants are in possession, and wrongfully withhol...
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The plaintiff brought this action to recover the value of certain goods, wares and merchandise alleged to have been sold and delivered to the defendants, who were co-*416partners doing business under the firm name of A. I. Brilliant & Co. The defendant Byington only appeared, and by his answer he denied that he was a partner with the other defendants. The case was tried by a jury, and the verdict ...
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In this case judgment was originally entered in the court below for defendant. An appeal was taken by the plaintiffs to this court from the judgment upon the judgment-roll, and this dourt reversed the judgment and directed the superior court “to enter a judgment upon the findings in favor of plaintiffs, in accordance with the prayer of the complaint.” When the case went back to the superior court ...
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This action was brought by the seller of a lot of potatoes to recover damages from the purchaser, who refused to receive them when tendered. A jury trial was had, plaintiff recovered judgment, and defendant appeals from the judgment, and from an order denying a new trial. The contract called for Early Rose merchantable potatoes. It is claimed that there was no evidence at all tending to show that ...
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This appeal is upon the judgment-roll. The complaint shows that defendant Thompson, in June, 1890, executed and delivered to plaintiff a promissory note for the sum *391of $700, which note plaintiff still owns and holds, and which has not been paid;, that, on the eleventh day of December following, the defendants Daley, Schulenberg and Christian executed and delivered to defendant Thompson an inst...
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The defendant was convicted of the crime of embezzlement, and the judgment was that he be punished by imprisonment in the state prison at Folsom for the term of three years. From this judgment and an order denying his motion for a new trial, he appeals. The information charges that on the tenth day of August, 1892, the defendant received from one Robert C. Brinkley, as his agent, the sum of $390, ...
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An information charging Amos Abbott, George Abbott and Albert Acevedo with burglary, committed on the fifth day of September, 1891, in the room of one Ah Sic, in the city of Los Angeles, was filed by the district attorney. The defendants severed. Appellant George Abbott pleaded not guilty, was tried, found guilty by the jury, and sentenced to imprisonment for the term of five years. A motion for a...
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Consolidated actions to enforce liens of materialmen. Plaintiffs had judgment, and defendants Alice Kennedy and John F. Kennedy, the owners, appeal from the judgment and an order refusing a new trial. On September 26, 1889, Alice Kennedy, wife of said John F. Kennedy, entered into a contract in writing with Gray & Stover, of which firm the defendant Stover is the surviving partner, by which they w...
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This is an appeal by plaintiff from a final judgment in favor of defendants. The cause comes up on the *400judgment-roll, and, as the appeal was not taken within sixty days after the entry of judgment, the appeal must he determined upon the questions presented by the pleadings, findings and judgment. An appeal from an order denying a new trial in the same case this day decided (100 Cal. 578, 35 Pa...
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The defendant had judgment in the above-entitled cause, from which, and an order denying a motion .for a new trial, plaintiff appeals. The case was here on a former appeal from a judgment in favor of plaintiff for a nominal sum, from which he appealed, whereupon the judgment was reversed and a new trial ordered: 91 Cal. 119, 27 Pac. 601. The general history of the case is there stated, and will no...
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This is an action for an accounting between partners. The material facts set out in the complaint may be briefly stated as follows: On or about the first day of March, 1885, the plaintiff and defendant, at the county of Del' Norte, in this state, entered into a verbal contract whereby they agreed to go into the business of buying, slaughtering and selling beef cattle and mutton sheep, and to divid...
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This action was brought under section 1589, Code of Civil Procedure, to recover for the estate property conveyed by the deceased, on the ground that the conveyance was made to defraud creditors. Defendant appeals from the judgment and an order refusing her a new trial. The case has been here before: See Threlkel v. Scott, 89 Cal. 351, 26 Pac. 879. Since the first appeal the complaint was amended b...
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Almon Wheelock, executor of the last "will of Albert G. Wheelock, brought an action to set aside and declare null and void an assignment made by Albert G. Wheelock, deceased, to defendant Arabella Godfrey, upon the ground of the mental incapacity of said Wheelock to execute the same, and fraud on the part of said Godfrey in procuring the execution of such assignment, and also to recover from both ...
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This appeal is from a judgment of nonsuit, rendered in favor of the defendant, the Coronado Beach Company, and was taken within sixty days after the rendition of the judgment. The action was brought to recover $2,152 for goods sold and delivered to Ben S. and Josie A. Miller. The respondent was sued upon the supposition that for a valuable consideration, paid to it by one F. E. Bates, it had promi...
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The defendant is an incorporated cable railway company, operating on Post street and certain other streets in the city of San Francisco. The plaintiff was a passenger on one of defendant’s cars, and, while attempting to *216alight from the ear at the junction of Post and Kearny streets, was thrown upon the pavement by the movement of the car and personally injured. This action was brought to recov...
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This is an appeal from an order granting a new trial. The action was brought to recover damages for injuries alleged to have been received by Ida Kellenberger, wife of her coplaintiff, on the eighth day of April, 1890, while a passenger on the cable car of the defendant. Plaintiff was on a Hayes street car, the gripman of which, as he approached the crossing of the Sutter street cable road on Lark...
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Proceedings were regularly instituted for the widening of Mission street, in the city and county of San Francisco, and for the condemnation for that purpose of a strip of land sixteen and one-half feet wide, along the southeasterly side of said street. The proceedings resulted in a judgment of condemnation and in assessments upon certain lots of land owned by the plaintiff, to help pay the expense...
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The facts found by the court below in this case are in all respects the same as those found by the court in Schmidt v. Brieg (this day filed), 100 Cal. 672, 22 L. R. A. 790, 35 Pac. 623, except as to the amount of damages. A decree like the decree in the Brieg case was entered, the damages, however, being fixed in this case at $3,163.70. In the Brieg case we held that the plaintiffs were not entit...
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This appeal is from an order made after judgment. The action was to foreclose a mortgage executed by the defendants Beck to plaintiff, in which it was stipulated that, when proceedings to foreclose were instituted, a receiver might be appointed. November 17, 1890, a suit to foreclose having been commenced, an application was made for the appointment of a receiver. By consent a receiver was appoint...
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This proceeding was instituted here by a written accusation charging Henry I. Kowalsky, an attorney of this court, with certain professional misconduct, and praying that he “be removed from the office of attorney and counselor at law. ’ ’ Kowalsky filed a written answer to the accusation, and the proceeding was referred to Hon. Niles Searls, now one of the commissioners of this court, to take evid...
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This is an action to quiet the plaintiffs.’ title to certain tailing mining claims, called the “Alturas Company’s Mining Claims,” situate in Slate creek, and partly in Sierra county and partly in Plumas county. The claims described extend up and down the creek about twenty-six thousand feet and contain an area of about one hundred and twelve acres. The defendants deny that the plaintiffs are, or *...
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The defendant and Giovanin Lena were, by information, jointly accused of the crime of grand larceny, committed by feloniously stealing and carrying away a trunk and contents thereof, consisting of ladies’ apparel, the property of a Miss Jennie Petty. On a separate trial the defendant was found guilty and sentenced to imprisonment in the state’s prison; and he brings this appeal from the judgment a...
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This is an action to recover the sum of $780 claimed to be due plaintiff on two causes of action; the first is for $125 alleged to have been received by the defendant from one Calvert for the use and benefit of plaintiff, and the *337other is for $655, which it is alleged the defendant holds for plaintiff as assignee of B. & B. Bonnett, under a certificate of which the following is a copy: “This i...
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The defendant and George Green were, by information, jointly accused of the crime of robbery. They demanded separate trials, and upon the separate trial of the defendant the jury returned a verdict of guilty, recommending defendant to the mercy of the court. Thereupon the court sentenced him to imprisonment in the state prison for the term of forty years. He appeals from the judgment and from an o...
Views: 1
This action was brought by Charles Ford, A. A. Morey and J. S. Menasco, copartners in the name of Charles Ford & Co., against J. F. Cunningham, James Dougherty and Henry L. Middleton, copartners in the name of J. F. Cunningham & Co., to recover $406.08, balance of an account for goods, wares and merchandise sold and delivered, alleging that the whole value of the goods sold was $906.08, of which $...
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Action on a promissory note made by the defendant Larabee to A. Davis & Son, and indorsed by the decedent as guarantor. The plaintiff is a member of the firm of A. Davis & Son, and sues as assignee of the note. The defendant Larabee was not served with summons. The court found in favor of plaintiff on all the issues of fact, and, among other things, found the note to have been made and indorsed in...
Views: 1
Defendants were informed against and convicted of burglary. The crime consisted of entering a freight car of the Southern Pacific Company with intent to commit larceny. Defendant Bannister was sentenced to one year’s imprisonment in the state prison at San Quentin, and defendant Hawley to three years at the state reform school for juvenile offenders at Whittier. The appeal is from the judgment, an...
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This action was brought to enforce a trust against the defendant on account of certain sheep received by him to be kept for the plaintiffs. Defendant had judgment, from which, and from an order denying a motion for a new trial, James S. Bradley, one of the plaintiffs, appeals. According to the amended complaint, one James H. Bradley died intestate, in the county of Tulare, August 4, 1870, leaving ...
Views: 1
Action to enforce a street assessment in the city of San Francisco, in which the judgment was in favor of the defendant. The plaintiff brings this appeal from the judgment on the judgment-roll, in which there is no bill of exceptions, and contends that upon the findings of fact the judgment should have been in favor of the plaintiff. There is no question that the plaintiff entered into a valid con...
Views: 0
Action for personal injuries. Appeal by defendants from the judgment and an order denying a new trial. Appellants, as copartners doing business under the name of the Citizens’ Water Company of Pomona, obtained from the city of Pomona, by ordinance, a grant or franchise to dig trenches and lay pipes in the streets of the city for the purpose of selling to and supplying its inhabitants with water. A...
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Action to foreclose a mortgage executed by defendants to secure their promissory note to plaintiff for $10,000, with interest at seven per cent per annum, and payable ten years after date; the interest, if not paid annually, to be compounded. The note further provides that, if the interest is not paid annually, “then the whole sum of principal and interest shall become immediately due and payable,...
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Application for a writ of prohibition. It appears that on September 28,1892, the petitioner, L. M. Wagner, was adjudged insolvent by the superior court of Los Angeles, and subsequently the court, in the matter of the insolvency proceeding, made a distribution of all of the estate of the insolvent which had come into the'possession of the assignee, and granted to the petitioner here a certificate o...
Views: 0
The defendant was convicted of forgery, and this appeal is from the judgment and from an order denying his motion for a new trial. Appellant’s principal contention is that the information does not state facts which constitute a public offense, for the reason that the forged instrument would, if it were genuine, be void upon its face. Said instrument is as follows: “No. 78. Los Angeles, Cal., Feb. ...
Views: 2
Respondent, while walking upon the sidewalk of Larkin street, in the city of San Francisco, was struck *736upon the head, and quite seriously injured, by a chisel which fell from a scaffolding above, upon which one of the appellant’s employees was standing while engaged in affixing a cornice to the building. Damages were recovered in the lower court, and this appeal is from the judgment and order ...
Views: 0
This is an appeal by defendant Thornton from a judgment and order denying a motion for a new trial in an action of ejectment. Plaintiff founds his title upon an attachment, judgment, and sale on execution thereunder, in an action entitled McCombe v. Benjamin S. Green and Hannah *742Green, his wife, commenced April 1, 1872, the attachment being levied upon the realty the following day. Judgment was...
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This is an action to recover damages for personal injuries received by the plaintiff. It is alleged in the complaint that on the eighteenth day of June, 1889, at San Buenaventura, in this state, the defendant wrongfully, wantonly and maliciously assaulted the plaintiff, struck him several blows on the head with a mallet, and also with his fist, *805and beat, pushed, and knocked him over upon the k...
Views: 0
Appeal from judgment and from an order denying a new trial. The complaint states three causes of action, the second and third, however, being different counts upon the same matter. The first cause of action is to recover *50$125, moneys alleged to have been received by defendant for the use of plaintiff on the-day of December, 1887. The first count on the second cause of action is for moneys had a...
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On August 15, 1887, the plaintiffs and ' the defendant were copartners doing business in the firm name of Sugar Pine Mill and Lumber Company. Their business was that of manufacturing and selling lumber. They owned one hundred and sixty acres of timber land, upon or near which they had built a sawmill. On August 15, 1887, a written contract between the copartnership and two of its individual member...
Views: 0

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