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All Reporters → cal-lexis → Volume 1901

Opinions in cal-lexis Volume 1901

The plaintiff, a creditor of the County Bank of San Luis Obispo, a corporation, brought this action in the county of San Luis Obispo against four of its stockholders, to recover from them the several proportions of her claim for which they were severally liable as such stockholders. Said bank was located in said county, and that was its principal place of business. Defendant Koshland in due time m...
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Motions to dismiss the appeals. 1. The appellant, Mary E. Mann, gave notice to the respondents, February 11, 1901, of her appeal from the order made in the above entitled proceeding, by which a nonsuit was granted and entered against her, and from the order given and entered therein, by which a default was granted and entered against her, and from the judgment given and entered therein, in favor o...
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The respondent filed a complaint in the justice’s court for the city and county of San Francisco against one Ernestine Kreling, claiming to recover certain moneys due her upon contract with said defendant, and the cause was assigned for hearing to the appellant, who was one of the justices of the peace for said city and county. The said Ernestine appeared in the action and filed a demurrer to the...
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Deceased died in the state of Virginia, leaving a last will and testament, which was admitted to probate in that state, and letters testamentary thereon were issued to one A.B. Bevan, named in the will as executor thereof. An authenticated copy of the will was filed in the superior court of the city and county of San Francisco, *Page 8 where the deceased left estate, and Henry P. Umbsen petitione...
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This action was brought by plaintiff to recover the possession of the personal property described in the complaint from defendant Dillon. Plaintiff alleged that he was, on the thirtieth day of July, 1898, and ever since has been, the owner and entitled to the possession of the property. Defendant Dillon, in his answer, denied that plaintiff was, on the day named, or at any other time, the owner or...
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This is an original petition here, upon notice, for a writ ofmandamus commanding the respondent to hear and determine a certain application made by petitioner in the said superior court. The respondent appeared and filed a demurrer to the petition, and also an answer, and the matter was heretofore argued and submitted. The material facts are these: The petitioner, Aldrich, was on May 24, 1888, reg...
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This action was brought to compel the corporate defendant to cause to be transferred to plaintiff one hundred and ten shares of its capital stock, which plaintiff claims to have purchased from the executor of Woodward, who was appointed as such in Minnesota, where the testator was a resident at the time of his death. Woodward died testate, February 3, 1899, and George W. Yates, who was named in th...
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This is an appeal by John Breslin, guardian of the above-named insane person, from an order of the superior court, sitting in probate, ordering and adjudging him to forwith pay to the Napa state asylum the sum of $2,475. The proceeding was instituted by petition of John F. Carrere, secretary of the state commission in lunacy, in which it is averred that the estate of the ward is indebted to the st...
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The defendant was charged with assault with a deadly weapon with intent to murder, and two previous convictions, one of burglary in the second degree, under the name of Theodore Mendez, the other of petit larceny, under the name of Frank Deas. He confessed the previous convictions, and was convicted of assault with a deadly weapon and sentenced to ten years in the state prison. 1. For a reversal, ...
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In an action to foreclose a mortgage, defendants contended that, upon a certain date, there had been paid to the mortgagee the sum of one thousand dollars upon account of the mortgage. The mortgagee insisted that but one hundred dollars had been paid. A jury was called in to pass upon this special issue. It rendered its verdict in favor of the mortgagee's contention, that but one hundred dollars h...
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This is an appeal from an order revoking the probate of a will. The appellant is the administrator with the will annexed, John A. Drinkhouse; the respondent, a sister of deceased, Lizie R. Blizzard, who contested the will. The will is dated "New York, Nov. 22, 97," and, it is admitted, was wholly written and signed by the testator. The *Page 29 only question in the case is whether the words and f...
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The defendant appeals from a judgment rendered against him in the court below. The appeal is on the judgment-roll; and the case, as presented by the findings, is as follows: On the twenty-third day of November, 1898, the plaintiff and defendant entered into an agreement, evidenced by the two writings set out in the defendant's answer – the one being a written proposition, signed by Hunt, the other...
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The appeal is from the judgment, with a bill of exceptions. The main contention on the part of the appellants is, that the court below erred in sustaining the demurrer to certain affirmative defenses set up in the answer. The action is to recover an alleged balance due on a certain written lease of premises in the city of Eureka. The lease in question was entered into between Mrs. Olivia Monr...
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Plaintiff Haensel became a stockholder in defendant company to the extent of thirty shares, of the par value of $3,200. On these shares he had agreed to make certain monthly payments and to pay certain fines in default of prompt payment. After becoming a shareholder, he borrowed from the company, on June 8, 1891, under its regulations relating to loans to members, the sum of $1,500, in accordance ...
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The respondent, on December 24, 1894, was the owner of an interest in a certain mine known as the "Nickel Plate," and on that date he and the appellant entered into an agreement, in writing, by which it was agreed that the respondent should sell, and he did sell, to the defendant one-half interest in said mine for the sum of five thousand dollars, four thousand dollars being paid on *Page 47 the ...
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Nolan commenced this action in the superior court to recover a forfeiture of one hundred dollars, and two hundred and fifty dollars damages, under section 1992 of the Code of Civil Procedure. The defendant demurred to the complaint, and his demurrer was sustained *Page 50 without leave to amend, and plaintiff appeals from the judgment. The facts alleged in the complaint are, in substance, the fol...
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The appellant commenced this action, February 18, 1897, for the foreclosure of a mortgage executed by B.T. Alford, making Jane Doe one of the parties defendant therein. A summons issued in the action was returned March 26, 1897, with an affidavit of W.T. Porter attached thereto, stating that on March 15, 1897, he had personally served the same "on Dollie E. Alford, wife of B.T. Alford, (sued herei...
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The plaintiff having a judgment against P. J. Brennan, on the twenty-sixth day of February, 1896, levied an execution upon the amount due him from the Hibernia Savings and Loan Society. This suit was brought to enforce the liability of the bank upon the garnishment. At the time of the garnishment, the books of the bank showed a balance to his credit of $1,025.06. Maria Brennan, the sister of P. J...
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The defendant was convicted of murder and sentenced to be hanged. On appeal to the supreme court, the judgment was affirmed and the cause remanded to the superior court for further proceedings. The defendant was thereupon brought before that court, and his various objections being overruled, Friday, the tenth day of January, 1902, was designated as the date for carrying the sentence into execution...
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The defendant was accused, by information, "of the crime of receiving stolen property, committed" as stated in the information, which, with necessary additions, follows the language of the statute. (Pen. Code, sec. 496.) The verdict of the jury was: "We, the jury in the above-entitled case, find the defendant, Chas. H. Tilley, guilty of receiving stolen property," which was received and recorded, ...
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This is an action brought to recover damages for the trespass of sheep. It was originally brought in the justice's court, where a judgment was rendered against defendant. Thereupon an appeal was taken to the superior court, upon questions of law alone, and the judgment affirmed. The present appeal is prosecuted from the judgment rendered in the superior court. The point is here made that the judgm...
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The appellant was convicted of manslaughter and sentenced to imprisonment in the state prison for ten years, and has appealed therefrom. The only question presented upon the appeal is the correctness of the ruling of the superior court upon the admission in evidence of certain statements of the defendant made while he was under arrest. It appears from the bill of exceptions that about a quarter af...
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Defendant was convicted of felony upon an information charging defendant and two others with the crime of violating sepulture, in that they "did wilfully . . . disinter from its place of burial . . . the dead body of the late Wong Quois Sing, a human being, the said dead body not being the dead body of a relative of [naming defendants], or either of them, removed for reinterment, contrary," etc. T...
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Defendant was tried on an information jointly charging him and one William Baumgartner and one Julian Rhew with violating sepulture. The facts in this case are the same as were presented in People v. Baumgartner, ante, p. 72. Defendant was convicted, and appeals *Page 76 from the judgment of conviction and from the order denying his motion for a new trial. The question as to the proper constructi...
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The defendant appeals from a judgment convicting him of an assault with intent to commit robbery and from an order denying him a new trial. 1. The principal point urged on this appeal is, that the verdict is not supported by the evidence; that there is no evidence to show that defendant intended to rob the prosecuting witness, Howard. There is evidence in the case to warrant the following statemen...
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The appellant was informed against for burglary and a previous conviction of grand larceny. He confessed the previous conviction, and upon a trial was convicted of burglary in the second degree and sentenced to seven years in the state prison. The evidence tends to show that the defendant, on June 8, 1900, entered a lodging-house at 501 Post Street, in the city of San Francisco, and stole a wat...
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The defendant appeals from a judgment in favor of the plaintiff for the sum of $773.42 and from an order denying his motion for a new trial. The case as presented by the record is as follows: The plaintiff and defendant were engaged in the business of dairying, under a written contract of date October 24, 1894, by the terms of which the defendant was to furnish four hundred cows and heifers, and a...
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The intervener, Kowalsky, appeals from a judgment to the effect that he take nothing in the above-entitled action. The appeal was dismissed as to defendant Byrne, and the only parties respondent are the plaintiff, Mohr, and the defendant Moore (formerly Florence Blythe). The record on appeal consists of the judgment-roll, from which it appears that the defendant Byrne made and executed to one Sol ...
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Appeal from judgment. The sole question here is, as to the ruling of the court below in sustaining defendant's demurrer to the amended complaint. The complaint states, in substance, that, in July, 1891, defendant conveyed the premises described in the complaint to one Snook. At the time of the conveyance, the premises were incumbered by a mortgage, given by defendant to one Kelsey, to secure his p...
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This action was brought to foreclose a mortgage made by appellants to plaintiff. The respondent Heymann held a second mortgage upon the premises, and set up such second mortgage in his cross-complaint. The trial resulted in a decree of foreclosure and order of sale, directing the application of the proceeds, – 1. To the payment of the amount found to be due plaintiff, with costs; and 2. To the pay...
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This action is upon an undertaking on attachment, to recover damages alleged to have been sustained by the assignor of plaintiff, by reason of the depreciation in the market value of certain personal property belonging to said assignor while said property was held under attachment. The appellants were the sureties upon said attachment bond. The action in which said writ of attachment issued was br...
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Plaintiff, upon March 5, 1893, commenced his action against the defendant, sheriff of the county of Napa, based upon section 98 of the County Government Bill of 1893 (Stats. 1893, p. 346), and alleged that the sheriff, under execution levy, had collected the sum of $609.08; that he had falsely returned that he had collected and received under the writ only the sum of $311.38; that demand had been ...
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The defendant was charged with the murder of one Lemuel Metis, and was convicted of murder in the first degree, and sentenced to suffer the penalty of death, lie appeals from the judgment and from an order denying a motion for a new trial. There is really no doubt of appellant’s guilt, if he was not insane at the time of the homicide; and the main contention of his counsel is, that the jury sho...
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An action against defendant Barnes, as trustee, and the heirs and devisees under the will of Margaret Leddy, deceased, for balance due the plaintiff for cattle and meats sold and delivered to the defendant Barnes in his capacity as trustee under the said will, and to have the sum found due by the court declared a lien upon the real property belonging to said heirs and devisees, there being no per...
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Appeal from judgment. In June, 1897, the defendants Shafer and wife executed and delivered to plaintiff’s assignor certain promissory notes described in the complaint and the mortgage therein described to secure the same. The mortgage was upon the north half of the southeast quarter, the northeast quarter of southwest quarter, and southeast quarter of northwest quarter of section 2, in township 2...
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Appeal from an order denying a new trial. The respondent contends that the order must be affirmed, upon the ground that the notice of intention to move for a new trial was not served or filed with the clerk in time. The court filed its findings of fact and decision, February 21, 1899, and judgment thereon was entered of record, February 23, 1899. On the same day that the judgment was entered, Adel...
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Action for permanent alimony, and that it be declared a lien on certain real property conveyed by defendant Greer to defendant Catherine Belshaw, and that said deed be declared void; also, that said land be adjudged the property of defendant Greer. Defendants had judgment, from which plaintiff appeals on the judgment-roll. It is alleged in the complaint that plaintiff and defendant James Greer int...
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This is an appeal by plaintiff from a judgment in favor of defendant. There is some printed matter in the transcript which is sought by appellant to be used as a bill of exceptions, but it is not in a condition to be considered. It appears that a draft of a bill of exceptions was prepared and presented by appellant, to which amendments were proposed by respondent. The only certificate of the trial...
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At the commencement of this action the superior court appointed a receiver to take charge and control *Page 131 of the property involved in the suit, – certain mining grounds and claims, together with the plants situated thereon and used in running the mines, – with power to operate the said mines and plants. The receiver so appointed thereupon took possession of the property, and operated the sa...
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Defendant was accused by information with the crime of rape. He demurred to the information, which demurrer was overruled. He was thereafter tried and convicted. Thereupon he moved for a new trial, which motion was denied, also a motion in arrest of judgment. From the final judgment and from the order overruling his motion for a new trial this appeal is prosecuted. The rape was alleged to have bee...
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Action to recover damages for personal injuries. The case was tried before the court, without a jury, and judgment entered for defendant. Plaintiff brings this appeal from the judgment and order denying his motion for a new trial. There is no controversy about the facts, which are substantially as follows: At about 11 o'clock, on the night of March 4, 1899, the plaintiff entered one of defendant's...
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This is an action to recover damages for personal injuries. Defendant appeals from a judgment rendered against it, and also from the order denying a motion for a new trial. Does the evidence support the verdict? A consideration of this question necessarily presents the legal soundness of the action of the court in denying a nonsuit. As to the sufficiency of the evidence, the interrogatory at once ...
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This is an action by the widow to recover damages for the death of her husband. Damages were awarded, and defendant appeals from the judgment arid order denying a motion for a new trial. Deceased was employed by defendant as a sausage-maker. He worked at the grinder and chopping-machine. A revolving shaft ran the length of the building, about ten feet above the floor, this shaft furnishing powe...
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Defendant was charged in an indictment with the crime of uttering a fictitious instrument in writing, and the jury returned a verdict of guilty. He appeals from the judgment and from an order denying his motion for a new trial. Counsel for appellant contends very vigorously that the evidence was totally insufficient to warrant the verdict; and he further argues that during the trial many errors of...
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The action is for the recovery of the possession or value of certain jewelry, precious and semi-precious and imitation stones, described in the complaint, the property of Emily A. Lucas, by her intrusted to plaintiff for sale on commission. Defendant, as sheriff, claims possession by virtue of a writ of attachment levied at the suit of one Trafton against S.E. Lucas and James H. Lucas, partners, a...
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Defendant was charged with the crime of arson and two prior convictions of grand larceny. He pleaded guilty to the prior convictions as alleged. After trial upon the charge of arson, he was found guilty in the second degree, and judgment was accordingly entered, sentencing him to imprisonment for ten years in the state prison. He appeals from the judgment and order denying his motion for a new tri...
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The complaint alleges the following facts: That on December 14, 1889, one Francisco Jose Pereira had on deposit in plaintiff's bank over $1,000, and on May 24, 1890, he had there on deposit over 150; that on the first of these dates plaintiff paid to defendant's intestate $1,000, at the latter's instance and request, and on the second date it paid him $150, "under the representation by said Sylvar...
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This action was brought by the plaintiff, appellant here, to foreclose a mortgage made by defendant C.S. Hemstreet, on April 16, 1896, to Lawrence Middlecoff, since deceased, upon certain lands situated in the county of Riverside, to secure a promissory note of that date for $250, for services to be thereafter rendered, and which mortgage was recorded in the recorder's office of said Riverside Cou...
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This is an appeal from a judgment for defendants in a suit brought by the plaintiff, as assignee of E. Donnelly, to enforce a street assessment. The land in question is a lot of the defendant Mrs. Berendes, fronting on K Street, between Tenth and Eleventh avenues, in the city and county of San Francisco; and the assessment was for the grading, curbing, and macadamizing of the southerly half of K S...
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Action to quiet title to land in the city of Santa Cruz. It was stipulated, for the purposes of the trial, that plaintiff is entitled to judgment, unless defendants have acquired the title of the testatrix, Cathalina E. Brewster, by the tax deed made by the city tax collector, dated August 17, 1895, or by the tax deed made by the county tax collector, October 9, 1895. It was further stipulated tha...
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Action for salary, at the rate of five hundred dollars per month, alleged to be due from defendant to plaintiff for several months of the year 1894, commencing with February of that year. Judgment was for defendant, and plaintiff appeals. The only point made for reversal is the insufficiency of the evidence to support the findings and decision. Appellant’s cause of action rests upon the alleged...
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Action upon a street assessment. The city council of Los Angeles passed a resolution of intention, and thereafter an ordinance, that Figueroa Street, between certain termini, be graded, graveled, and guttered with an asphalt gutter "in accordance with the plans and profile on file in the office of the city engineer and specifications on file in the office of the city clerk of the city of Los Angel...
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A decree of divorce between the parties hereto was rendered by the superior court of the county of Los Angeles, September 4, 1895, and, by the judgment, certain property was awarded to the plaintiff, and it was also "ordered, adjudged, and decreed that the custody and control of Ethel Shattuck, a minor child of the plaintiff and defendant, be and the same is hereby awarded to said plaintiff." No p...
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This is an appeal by George Staacke from an order of the superior court, sitting in probate, remov *195 ing him as executor of the last will of Thomas Bell, deceased. The order appealed from was made after a hearing of the petition of Teresa Bell, widow of the deceased. The petition sets forth about a dozen grounds for removal, eight of which were found in favor of the petitioner. As we think...
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This is an action upon an administrator's bond against the defendant Murdock, as administrator, and the other defendants, as sureties on his bond. The appeal is taken by the defendant Whitney, one of the sureties. The action was dismissed as to the defendant Murdock, and default entered as against Frutig. The main contest in the court below, on the part of the defendant Whitney, was, that it never...
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This is an action of ejectment, brought to recover a portion of the right of way claimed by the plaintiff, lying upon Tulare Avenue, a highway in Fresno County. Verdict and judgment went for the plaintiff in the court below, and this appeal is from the judgment and from an order denying defendants' motion for a new trial. The appellants make two points on the appeal: 1. That the action of ejectmen...
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The plaintiffs appeal from a judgment for defendant, entered on demurrer to the complaint. The suit was brought to foreclose a lien on land of the defendant for amounts alleged to be due on a' written contract between the parties, of date May 21, 1893. The only question involved is as to the construction of the contract. By the terms of the contract, the plaintiffs agreed to plant the land...
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The suit was brought to enforce the lien of an assessment on land of defendant for grading the crossing of Capitol Avenue and Farallones Street in the City of San Francisco. The court found all the allegations of the complaint to be *Page 213 true, except the allegations that at the time mentioned in the complaint, the width and grade of the streets named had been officially established, and that...
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Appeal from an order granting the plaintiff a new trial. The case is similar to the case of the same title just decided(Blanchard v. Ladd, ante, p. 212), except in the following particulars: – In this case – which is for an assessment on the same lot for work on a different part of Farallones Street – it is found by *Page 215 the court, not only that the width and grade of the street was never es...
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In this action the plaintiff sued to recover upon a promissory note and to foreclose a lien upon real estate securing the indebtedness evidenced by said note. The plaintiff had judgment, from which defendants appeal on the judgment-roll, without a bill of exceptions. The findings show a state of facts substantially as follows: The above-named defendants deeded certain lands to one Kreamer to secur...
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This suit was brought to enjoin the defendants from interfering with or preventing the plaintiff from opening, cleaning out, and using a certain ditch over lands of the defendants, for the purpose of conveying water to the lands of the plaintiff. The court made findings and entered judgment for the plaintiff, and the defendants appeal therefrom and from an order denying a new trial. The finding...
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The plaintiffs appeal from a judgment rendered against them on demurrer to their complaint. The suit was brought to establish a trust in favor of the plaintiffs in lands confirmed and patented to the predecessors or predecessor of the defendants under the act of March 3, 1851, "to *Page 227 ascertain and settle the private land claims in the state of California." The material facts alleged in the...
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This is an action to recover certain goods attached by defendant Whelan, sheriff, as the property of defendants in certain attachment suits. Judgment went for plaintiff, and defendants appeal. Appellants contend, among other things, that the complaint does not state a cause of action, because it is merely averred therein that at times prior to the commencement of the suit plaintiff was the owner a...
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This is an appeal by the plaintiff from a judgment in favor of the defendants and from an order denying his motion for a new trial. This action was brought by the plaintiff as receiver of an insolvent Illinois corporation, called the Republic Life Insurance Company. Plaintiff was appointed receiver by a court of the state of Illinois, under a statute of that state. He commenced this action in the ...
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This appeal is from the judgment, the contention of appellants being that, upon the findings, they were entitled to the relief which they asked. The evidence not being before us, the history of the transactions between these parties is to be derived from the admissions of the pleadings and the findings of the court. In chronological order, they are as follows: The San Francisco Furniture Manufactu...
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Action to foreclose a lien for street work, performed under the statute commonly known as the "Vrooman Act." The plaintiff had judgment, and the defendant appeals from the judgment and from an order denying a new trial. Appellant contends that said act is unconstitutional, and relies upon the case of Norwood v. Baker, 172 U.S. 269, to sustain his contention. Since the appeal was taken and the brie...
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This action was brought to recover damages alleged to have resulted from the purchase by plaintiff of one hundred shares of stock in the Ferries and Cliff House Railway, a corporation. Plaintiff purchased in the Stock and Bond Exchange of San Francisco, and it is not averred or claimed that either of the defendants were in privity with his purchase, or personally made any representations to him up...
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[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 258 On February 7, 1899, plaintiff brought this action to quiet title to a certain ten-acre tract of land. On March 28, 1899, the defendant filed a cross-complaint asking for the specific performance of a certain contract relating thereto, a copy of which is ...
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This action was brought to enjoin the defendants from removing from the lands of plaintiffs certain machinery, engines, derricks, tramways, wire cables, and appurtenances, alleged to be the property of plaintiffs, and attached to and claimed to be a part of the real estate described in the complaint. The ease was submitted upon the pleadings and a written stipulation as to the facts. The court fi...
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Defendant was convicted of the crime of attempting to obtain money under false pretenses. He appeals from the judgment and from the order denying his motion for a new trial. In January, 1899, the board of supervisors of Tulare County passed ordinance 67, offering a bounty of three cents for any squirrel killed or destroyed within that county. The ordinance required the claims to be supported by af...
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This was an application for a writ of mandamus, directed to the appellant, as secretary of the state board of health of the state of California, commanding him to permit the respondents to inspect and take copies of the written reports of Doctors Mauser and Ryfkogel of a bacteriological examination of an alleged ease of bubonic plague made for the state board of health. The petition for. the ...
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This is a suit for an accounting, the plaintiff alleging a balance in his favor of about four thousand dollars. This, with other allegations, is denied by the defendants, who claim, in their answer, a balance in their favor of $3,135.20. There is also a cross-complaint, which sets up a deed of the plaintiff and wife to the defendant Wise, of date March 22, 1894, purporting to convey to the grantee...
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This is a motion by plaintiff and respondent to dismiss the appeal of the defendant Blitz W. Paxton from an order of the superior court denying a motion of said Blitz for a change of venue. The motion to dismiss is upon two grounds,—1. That the defendant Bessie was not served with a notice of appeal; and 2. That there is no proof that the plaintiff was ever served with such notice. As we think th...
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Appellant was convicted of the crime of grand larceny and sentenced to imprisonment at San Quentin for the term of three years and six months, and appeals from the judgment and from an order denying a new trial. The property charged to have been stolen consisted of thirty-eight stands of bees, of the value of $152, the property of one H.A. Crane. That the bees were taken and removed from the premi...
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This is an action to foreclose a mortgage made by the defendant Winter to a former guardian of the minors, Ora and Rebecca Eiler. The Bank of Shasta, a corporation, was joined as a defendant, for the reason, as alleged, that it claimed some interest in, or lien upon, the mortgaged premises, subject and subordinate to the lien of the mortgage. It was duly served with summons, but made default, wher...
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This action was brought to recover damages for personal injuries sustained by plaintiff. A verdict was given in his favor, judgment in due course followed, and from that judgment and from the order denying defendant a new trial it appeals. Upon the evening of September 8, 1897, plaintiff attempted to cross Kearny Street in the block between Jackson and Washington streets. While upon the track of t...
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The plaintiff recovered judgment in the court below for certain permanent mining improvements and machinery removed from the plaintiff’s premises, or its value, etc. The defendant appeals from the judgment. The case, as presented by the complaint and findings, is as follows: The plaintiff was the owner of the mining claim described in the complaint, from which the machinery was removed. The defen...
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Charles Lux died about 1887 (the precise time does not appear in the transcript). On the twenty-fifth day of April, 1889, the superior court of San Mateo County, where the estate was in probate, made an order in which it is recited that one John Reynolds was on the fourteenth day of April, 1887, appointed to represent the absent heirs (naming them), and that said Reynolds is now superior judge of ...
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The appeal in this case is from the judgment, entered on the fifth day of March, 1900, admitting the will to probate, in favor of proponent, and also from the order denying contestant's motion for a new trial. The appeal from the judgment not having been taken within time, that branch of the appeal cannot be considered. Many alleged errors are assigned in the motion for a new trial, but in the arg...
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Action for the recovery of money. The plaintiff had findings and judgment, and defendant appeals, upon the judgment roll, which contains a bill of exceptions setting out all of the evidence. The first question presented involves the sufficiency of the complaint, which is, in substance, as follows: That on January 2, 1894, the defendant executed his promissory note to the plaintiff for the sum of t...
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This action was brought to recover the price of certain peaches sold and delivered under a contract in writing. The defendant set up as a defense non-compliance of plaintiff with the contract, and also a counterclaim on account of damages arising out of such non-compliance. The plaintiff had judgment, from which and from an order denying a new trial the defendant appeals. The contract between the ...
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The action is brought to recover the reasonable value of services alleged to have been rendered, as attorney and agent, by plaintiff, for the said Josefa Loureyro in her lifetime. The case was tried without a jury, and the defendant appeals from a judgment rendered in plaintiff's favor and from an order denying his motion for a new trial The plaintiff presented his verified claim against the estat...
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Upon a former appeal this case was remanded, with directions to modify the judgment by adjudicating separately the amounts separately secured by the real estate and personal property mortgages, and by ordering separate sales for the purpose of a proper application of the proceeds, and by deducting a certain sum erroneously found due on account of insurance. (Taylor v.Ellenberger, 128 Cal. 411.) *P...
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I dissent. Upon the face of the record in this case, appellant acquired title to the land in controversy under the receiver’s deed. No facts appear here affecting the validity of that deed; and the court expressly found that the order of sale and the order confirming the receiver’s sale were duly made and entered by the court, and that *39 thereafter a deed was executed by the receiver to appel...
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This is an appeal by defendants from a judgment in favor of plaintiff in a street-assessment case. The main point made by appellants is, that our street-assessment law is void because repugnant to the fourteenth amendment of the Federal constitution, in that the expense of the street-work is to be assessed in proportion to the frontage of the lots; and in support of this contention they rely on th...
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The facts out of which the first point presented in this appeal arises may be briefly stated. Plaintiffs brought an action at law upon a money demand against appellant and another. In addition to his answer denying plaintiffs’ allegations, appellant interposed a counterclaim. Plaintiffs failed to recover against appellant, but did have judgment against a co-defendant. Appellant also failed to rec...
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Action to quiet title, and appeal from a judgment in favor of plaintiff. The premises in question consist of a portion of the southwest quarter of the southwest quarter of section 28, township 18 south, range 25 east, Mount Diablo base and meridian, in Tulare County. The plaintiff and respondent deraigns title from one Reuben Mathews, who entered upon the subdivision embracing the premises in ques...
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Appeal from an order denying a new trial. It is contended by the respondent that the order must be affirmed, for the reason that the appellant did not present the statement to the defendant's attorney within the time allowed therefor, and that, as the judge was not authorized to settle the same, there is no record upon which the order appealed from can be considered. The notice of intention to mov...
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Appeal from a judgment awarding the plaintiff a peremptory writ of mandate requiring the defendant to pay her the sum of one thousand dollars from a fund created by an act passed in 1889, entitled "An act to create a police relief, health, and life insurance and pension fund." (Stats. 1889, p. 56.) The appeal is from the judgment rendered for the plaintiff upon the failure of defendant to answer a...
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Action to restrain defendant, as auditor of Tuolumne County, from drawing a warrant to pay the claim of one Richardson for printing the delinquent tax list for the year 1898 in a newspaper called the Mother Lode. The court found that Richardson was the proprietor of the paper on May 27, 1899, and that the tax-collector of the county on that day caused the delinquent tax list for the year 1898 to b...
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This is an appeal from a judgment for the plaintiffs and from an order denying the defendants' motion for a new trial. The suit was brought on an undertaking of the defendants, given on appeal in an action of ejectment in which the plaintiffs and one William P. Todhunter were plaintiffs and one Armstrong defendant, which was affirmed on appeal. But at the date of the judgment, September 21, 1896, ...
Views: 6
This appeal is from a judgment awarding plaintiff a writ of mandate against defendant, in his official capacity, commanding him to apportion to plaintiff $4,630.13 of public school moneys. A demurrer was filed to the petition, and upon its being overruled, defendant answered, setting forth facts which are practically conceded to be true. As the facts are substantially agreed upon, it will not be n...
Views: 19
Petitioner was convicted of violating an ordinance of the county of Ventura, adopted by a vote of the electors of the county at an election held in November, 1900, under the provisions of section 13 of the County Government Act of 1897 (Stats. 1897, p. 454). He contends that the ordinance under which his conviction was had is unconstitutional and void. Section 1 of article XI of the constitution r...
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This is an action to recover damages for personal injuries, alleged to have been suffered by plaintiff through the negligence of defendant. The jury returned a verdict for the plaintiff in the sum of fifteen thousand dollars. Defendant appeals from an order denying his motion for a new trial. Defendant is a corporation engaged in furnishing, carrying, and distributing electricity through the city ...
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Appeal from an order refusing a temporary injunction. The plaintiffs are lessees of a tract of land in Kern County. The land belonged, in equal shares, to Andre Castagnetto, B.W. Jauchins, and the estate of Joseph Queirolo, then recently deceased. At the time of the execution of the lease under which plaintiffs claim, the estate was not in probate. The heirs of Joseph Queirolo were one son and two...
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Appeal from the judgment and from an order denying a new trial. The action is to foreclose a mortgage given to secure a note dated September 25, 1893, for five thousand five hundred dollars, due in one year, with interest at the rate of one per cent per month. The answer admits all the allegations of the complaint, except the allegation that no part of the principal *Page 85 has been paid, and se...
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This is an appeal from a judgment of divorce, without a bill of exceptions. The defendant did not appear, by demurrer or answer, and the only point made on the appeal is, that the complaint does not state a cause of action. Appellant, in substance, contends that the complaint only contains the averments, that on the eighth day of March, 1898, defendant voluntarily separated himself from plaintiff...
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Defendant Hornberger had pledged to the plaintiff bank a policy of life insurance as security for his indebtedness to that corporation. In an action upon that indebtedness the bank recovered judgment. Question having arisen as to the interest of Hornberger's wife in the policy of life insurance, the bank brought its action, seeking to foreclose the lien of its pledge and to sell the policy of insu...
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The plaintiff's intestate brought this action to recover damages for personal injuries sustained, through the negligence of the defendant, while being carried as a passenger upon one of its cars in the city of Los Angeles. The cause was tried before a jury, and a verdict rendered in favor of the plaintiff for the sum of two thousand dollars. After the rendition of the verdict and the entry of judg...
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This is an appeal by Mary Gallagher, widow of the deceased, from an order denying her application to have set apart to her as a homestead certain land of the estate. The application was made under that part of section 1465 *Page 97 of the Code of Civil Procedure which authorizes a probate court to set aside a homestead when "none has been selected, designated, and recorded" during the lifetime of...
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January 2, 1891, the appellant, Heilig, and respondent, Parlin, entered into an agreement, in writing, for the sale, by Parlin to Heilig, of a certain twenty acres of land in Kings County, then belonging to Parlin. Heilig was required by the agreement to take possession of the land and to make certain payments, and at his own expense set out to vines or fruit trees one fourth of said land each yea...
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Upon the respondents’ motion to dismiss the appeal upon the ground that service had not been made *103 upon all of the adverse parties, affidavits were presented, from which it appears that the notice of appeal was served by mail. The affidavit in support thereof states in positive terms the fact of such service, and the existence of the conditions under yvhich such service may be made, one of ...
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This action was brought to recover damages for false imprisonment. The court filed findings, and ordered judgment for plaintiff for the sum of fifteen hundred dollars. The defendants appeal from the judgment and from an order denying their motion for a new trial. It is claimed – and we think correctly – that the evidence is insufficient to sustain the findings, in so far as they find that defendan...
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By ordinance No. 68 of the city and county of San Francisco it is made "unlawful for any person to have in his possession any lottery ticket," etc., and upon conviction of a violation of the terms of the ordinance the defendant may be punished by fine or imprisonment, or both. The petitioner here was convicted of a violation of this ordinance, and seeks his release under this writ, upon the assert...
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This is an appeal from an order settling the account of the guardian of a minor. George T. Ceas was appointed guardian of the person and estate of his daughter, Adelia, on the 2d of April, 1883. After qualifying as guardian, on the twenty-first day of April, 1883, he filed an inventory and appraisement of the ward's estate, in which it is said the estate consists of a claim against the United Stat...
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This is an action to quiet title, and the material facts, very generally and briefly stated, are: Mary E. Smith, wife of plaintiff, brought suit for divorce against him. She obtained a decree granting the divorce, and two-thirds of the community property, which consisted of a homestead. She also obtained an order for alimony, to enforce which an execution was issued, and after the decree was enter...
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After the commencement of the above action, the superior court appointed a receiver to collect, pending the action, the water rates theretofore collected by the defendant water company. This order was annulled by this court, May 5, 1899, upon the application of the water company. (Los Angeles v. Los AngelesWater Co., 124 Cal. 385.) Thereafter, the receiver presented his account to the superior cou...
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Appeal from an order setting aside a default and judgment entered thereon. The default of the respondent, and judgment against her *Page 126 in behalf of the plaintiff, was entered November 23, 1899, and on December 4, 1899, a notice was given, in her behalf, to the attorneys for the plaintiff, of her intention to move to set the same aside, upon the ground that they had been entered by reason of...
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This is an appeal by defendant from a judgment in favor of plaintiff. The action is to enforce an asserted lien upon the defendant's undivided interest in certain mining property, for advances of money alleged to have been made by plaintiff's testator, Goldstein, who was the owner of an undivided interest in said property. The action is based on a certain written contract made by Goldstein, the pa...
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This action was brought to obtain an injunction against further interference with certain water rights of plaintiff and for damages for previous interferences. The defendants appeal from a judgment in plaintiff's favor and from an order denying a new trial. The complaint alleges title and possession in plaintiff of certain described tracts of land, and "that for more than sixteen years last past, ...
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The defendant was convicted of the crime of burglary in the second degree. The alleged offense *Page 141 consisted in breaking into a shop and stealing a violin. Defendant appeals from the judgment and from an order denying his motion for a new trial. There was evidence properly admitted, which tended to show appellant's guilt; but we cannot know whether or not the jury would have convicted him w...
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Petitioner is restrained of his liberty upon a charge of violating an ordinance of the county of Los Angeles, in refusing to pay a liquor license of fifteen dollars per month, prescribed by the aforesaid ordinance. He is a resident of the city of Los Angeles, conducts his liquor business therein, and pays the license demanded by the ordinances of said city. Whether or not the license fee or tax de...
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The appellant has petitioned for a modification of the judgment herein. He asks that instead of remanding the cause for a new trial, this court should direct the entry of a final judgment in his favor, and I think he is clearly entitled to that relief, upon the record as it stands. The substance of the material findings of the superior court is, that, according to the canvass by the election board...
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This appeal is prosecuted from a judgment which allows three referees, in the matter of the partition of certain lands, five thousand dollars each, as compensation for services rendered. It is claimed that the compensation allowed is too great. The lands to be partitioned consisted of seventeen separate tracts, situated in the city and county of San Francisco, of the value of about eight hundred t...
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The defendant appeals from a judgment convicting him of rape, committed on the body of a child six years of age, and from an order denying him a new trial. The points made by appellant, so far as they are deemed material, will be considered in the order in which they appear in appellant's brief. 1. In the absence of a showing to the contrary, it will be presumed that the magistrate before whom the...
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Plaintiff has recovered-judgment in an action for damages for personal injuries, and defendant appeals. The facts are these: “Plaintiff was riding, at night, upon a bicycle, westwardly, upon the right-hand side of the main road. A street-car in the center of the road was traveling in the same direction. Plaintiff was six feet to the right of the car, and about twenty or thirty feet to the rear th...
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Appeal from order denying motion to set aside default and vacate judgment and decree of foreclosure. In May, 1892, the plaintiff loaned to defendants $12,675, for which defendants gave their notes secured by mortgage. In May, 1898, the plaintiff became dissatisfied with the loan, as a *167 large amount of interest had accumulated and remained unpaid. Defendants then employed Wilfred M. Peck a...
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This is an action for specific performance. The plaintiff had judgment, and defendant appealed therefrom within sixty days after its rendition, and the evidence was preserved in a bill of exceptions. The parties were husband and wife when the contract involved in the case was entered into, but have since been divorced, and the plaintiff has assumed her maiden name. A general demurrer for want of f...
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—This is an action to foreclose a mortgage upon mining property. The mortgage, on its face, purports to have been given by Patrick Campbell and the New Blue Point Mining Company, a corporation. In form, the complaint attempts to state two causes of action, — in reality, but one. It contains averments proper in a complaint for foreclosure, with statements tending to show that in fact the corporati...
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This is a motion to dismiss an appeal. The uncontroverted facts are the following: The office of the county clerk of Santa Clara County opens at nine, A.M., and closes at five, P.M. After the hour of five, P.M., appellant's attorney went to the office of the county clerk to file his undertaking upon appeal. It was the last day allowed him by law for this purpose. Finding the office closed, he went...
Views: 11
Defendant has been convicted of grand larceny in stealing a cow, and now appeals from the judgment and order denying his motion for a new trial. His counsel presents various grounds to support his appeal, but they largely partake of a technical character, and the court will only consider the more important ones. It is first insisted that the evidence tending to show a commmission of the crime of l...
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Plaintiff sued to recover damages to his land and to the crops growing thereon, alleged to have been occasioned by defendant’s dam. The answer denied that the flooding was caused by the dam, and affirmatively pleaded a prescriptive right in defendant to the maintenance of the structure. The cause was tried before a jury, verdict was rendered for plaintiff, and from the judgment which followed and...
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This action is based on an order in words and figures as follows: – "$325.00. SAN ANTONIO, Mar. 5th, 1897 "At sight, pay to the order of D. Sullivan Co. three hundred and twenty-five dollars, value received, and charge to account of Mayer Adler. "TO THE E.G. LYONS CO., San Francisco, Cal." The order was duly assigned to plaintiff, and he seeks to maintain this action, a...
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This action was brought to recover possession of a tract of land alleged to be situated in Colusa County, and described as lot 3 of section 24, in township 17 north, range 2 west, Mount Diablo meridian, and containing 54 acres, according to the United States plat thereof. The defendants had judgment, and plaintiff appeals from said judgment and from an order denying her motion for a new trial. The...
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The defendants were convicted of grand larceny, in the felonious stealing and driving away of four calves, the property of one Luchessa. They appeal from the judgment and from the order denying their motion for a new trial. During the trial, the court, under defandants' objection, admitted many conversations and statements of third parties, not made in the presence or hearing of either of the defe...
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Action for divorce on the grounds of habitual intemperance of defendant, inflicting a course of great mental anguish upon plaintiff, and the extreme cruelty of defendant. The defendant had judgment. The plaintiff moved for a new trial, and appeals from the order denying her motion. There is no appeal from the judgment. 1. The first point urged by appellant is, that findings were not filed until mo...
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[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 209 The plaintiff recovered judgment against the defendant, in the court below, for the sum of $115.07, – the amount of a street-assessment on land of defendant in San Francisco, – with interest and costs, and the sum of $15 attorney's *Page 210 fees, all of...
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Action to recover the value of certain building materials furnished by plaintiffs to defendant Gamache, the contractor, and used by him in the construction of a school-house for South School District, San Joaquin County. The district and its trustees were made parties defendant; also, Masters and Thompson, who were sureties on the contractor's bond. The court gave judgment for plaintiffs, against ...
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Foreclosure of mechanic's lien. The notice of lien referred to in the complaint states: "That at the time the contract herein referred to was signed, and at the time the work herein was commenced, the estate of George F. Sharp, deceased, and the heirs of the estate of George F. Sharp, deceased, were the owners of said premises; that thereafter, and during the progress of the work herein described,...
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Action to recover for services rendered under an alleged contract. The plaintiff had findings and judgment, and the defendant appeals from the judgment and an order denying a new trial. The defendant is a corporation organized under the laws of this state, and having an office in Chicago, under the charge of F.E. Brown, who was a director and the president *Page 228 of it. The business of the cor...
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A document was presented to the superior court of Kings County, accompanied by a petition setting forth that the above-named decedent had died, leaving *Page 234 an olographic will, of which the said document was a portion, but that since his death said will had been mutilated and a portion thereof destroyed by some person unknown to petitioner, by tearing therefrom a portion of the sheet of pape...
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[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 239 The complaint herein alleges that on January 31, 1890, J.O. Lovejoy purchased from the defendant its check upon the Pacific Bank, at San Francisco, for the amount of $750, payable to the order of B.F. Smith, and paid to it therefor the sum of $750. Lovejo...
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This is an appeal from a judgment in favor of the defendant, and also from an order denying plaintiff’s motion for a new trial. The motion for new trial was made upon a bill of exceptions, which is brought up as part of the record on the appeal. 1. The appellant claims that the findings are not supported by the evidence; but an examination of the testimony satisfies the court that the evidenc...
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This is an action on a promissory note. After a trial, the plaintiff had judgment, and defendant appeals therefrom. The single contention of appellant is, that the answer in the case was the answer of the guardian, John 0. Dunn, and not the answer of the incompetent, Cornelius C. Dunn, and that there is nothing to show any appearance by or on behalf of the said Cornelius C. Dunn, or that the co...
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Appeal from a judgment for the plaintiffs and from an order denying the defendants' motion for new trial. The plaintiffs are the owners of a tract of land in the city of Los Angeles, described in the complaint, on which a street-assessment had been levied, and a bond issued to one Donegan, to secure the same, under the provisions of the Street-improvement Act of March, 18, 1885, as amended March 1...
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The appellant was convicted of murder in the first degree, and sentenced to suffer the punishment of death. At the trial, the evidence disclosed the following facts connected with the homicide: The defendant had been convicted of a felony in the superior court of San Diego, and sentenced to imprisonment in the state prison at Folsom, and was being taken thither upon the steamship Santa Rosa, in th...
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The defendant is proprietor of a bonded warehouse in the city of San Francisco. On the 20th of January, 1896, it received from the plaintiffs, and stored in its warehouse, sixty-four barrels of spirits. About the 4th of March, following, it was discovered that some of the barrels were leaking, and immediately notified the plaintiffs, who, upon examination, found that eight barrels showed excessive...
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The plaintiff loaned to the defendant Hatch the sum of fifty thousand dollars, November 10, 1891, for which Hatch, on that day, executed to him his promissory note, payable one day after its date. November 3, 1892, as security for the payment of four thousand dollars of said indebtedness, Hatch executed to the plaintiff a conveyance of certain lands in Alameda County, which was recorded in the off...
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This is an action to recover damages for personal injuries. The cause was tried before a jury and verdict was for plaintiff. From the judgment and from an order denying a new trial the defendant appeals. *Page 280 At the place of the accident, defendant maintained a double track. Plaintiff attempted to drive across it with his vehicle. A car was approaching on each track. The car upon the track n...
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Action to quiet title. A tract of land on the west side of the Sacramento River, in Yolo County, including the premises in controversy, up to the third day of February, 1889, belonged to one Herman Huber, at which time the said Huber died. It was proven on the trial that Augusta J. Huber was the widow of said Huber, deceased, and Herman L. Huber, their son, and that said Augusta and Herman L. were...
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This is an original petition here for a writ of mandamus. An alternative writ was issued, and upon answer of respondent and argument of counsel the cause was submitted. Whether or not the writ should be made absolute depends upon the constitutionality of a certain act of the legislature approved March 8, 1901. If the act is constitutional, then the writ should be denied; if not, then it should iss...
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The defendant was convicted of the crime of embezzlement, and appeals from the judgment and from an order denying his motion for a new trial. The points made by appellant for reversal will be noticed in the order in which they are presented in his brief. 1. The information, I think, is sufficient. The facts alleged therein are, in substance, that, at the date and place named the defendant was the ...
Views: 13
The plaintiff, an employee of the defendant, recovered judgment against it for the sum of three thousand five hundred dollars, as damages for personal injuries suffered by him, in the course of his employment, by reason of a defective machine. This appeal is prosecuted from an order denying defendant’s motion for a new trial. It is first urged that the complaint does not state a cause of action...
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The court below made an order sustaining defendant's demurrer to the amended complaint, and this appeal is from the judgment, for the purpose of reviewing the order. *Page 316 The complaint alleges that one John L. Flaherty, the son of defendant, was duly committed to the state insane asylum at Napa by order of the superior court, where he was regularly detained, supported, and maintained in purs...
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The question involved in this appeal is the construction to be given to one of the clauses of the decedent's will. The will is olographic, and dated March 1, 1895. By it the testator, after bequeathing five hundred dollars to a Mrs. Fanning, five hundred dollars to his half-brother, James Bennett, one thousand dollars to his half-sister, Emma Morris, and five hundred dollars to his niece, Alzadie ...
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The action is for damages, alleged to have been sustained by the plaintiff by reason of the defective construction of a combined harvester manufactured and sold to the plaintiff and one Kniebes by the defendant corporation. The plaintiff and said Kniebes were farmers near Crows Landing, in Stanislaus County, in the spring of 1896. By agreement between them, the plaintiff went to Stockton the latte...
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Action to foreclose a lien for street-assessment for the construction of certain sewers and other work in the city of Vallejo. Plaintiff had judgment, from which defendant appeals. The resolution of intention described certain sewers; namely, a sewer 800 feet along the center of Main Street; a sewer 365 feet along Sonoma Street; a sewer 365 feet along a certain alley; a sewer 720 feet "along the c...
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This is an appeal by the grantee of one of the heirs of Morris Freud, deceased, from a decree of partial distribution. Two points are made: That the court erred, – 1. In refusing a continuance; and 2. In distributing the property in the face of an unexecuted order by the court requiring the sale of the property distributed, to pay debts and expenses of administration. Morris Freud died testate, an...
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This appeal is from the judgment and from certain orders afterwards made in regard thereto. The action was brought to recover upon a promissory note for seven hundred dollars, dated November 1, 1897, due upon demand, with interest from date at the rate of one per cent per month, made by "H.G. Krasky," to plaintiff. It is alleged in the complaint that the defendants are, and were at the time of the...
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In 1888 the defendant, being indebted to the plaintiff, executed to him a mortgage upon certain real estate to secure payment. In 1892 plaintiff brought an action to foreclose said mortgage, and on March 3, 1898, obtained a decree of foreclosure, under which the commissioner sold the mortgaged premises to the plaintiff on April 2, 1898, and no redemption having been effected, the commissioner exec...
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Divorce on the ground of desertion. Plaintiff had judgment, from which and from the order denying motion for a new trial defendant appeals. Finding 3 was as follows: "That on the tenth day of March, 1897, the defendant willfully and without cause deserted and abandoned the plaintiff, and ever since has deserted plaintiff, and continues to live apart from him without his consent." Finding 7 was, th...
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Action to quiet title to mining-ground. Plaintiff claims under a patent for a placer mine, dated July 1, 1872. The defendants claim under a lode location made in 1897. Plaintiff's patent was based upon proceedings instituted May 9, 1871, and upon final entry and payment made February 14, 1872. The rights of plaintiff had their inception under what is usually called the "Placer Act," dated July 9, ...
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Action for damages arising from the destruction of plaintiff's cord-wood, fence-posts, etc., by fire communicated from defendant's locomotive. The defendant obtained a verdict and judgment in its favor, and the plaintiff appeals from an order denying his motion for a new trial. The respondent files no brief. Plaintiff's most important witness, both as to the extent of the damage suffered and as to...
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—This action was brought to recover damages for personal injuries, alleged to have been sustained by plaintiff in falling down an elevator-well, negligently left open in-defendants’ warehouse, situated in the city of San Francisco. The plaintiff had a verdict and judgment for three hundred dollars. Defendants appeal from an order denying their motion for a new trial. The plaintiff was sent by h...
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Foreclosure of mortgage, and plaintiff had judgment. The action was dismissed as to all the defendants except the land and water company, and it appeals from the judgment and from the order denying its motion for new trial. The case was here once before, and it was then held that the note and mortgage were not originally the act of the corporation. On the remaining issue of ratification, it was he...
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Action by assignee in insolvency to recover the value of certain personal property, consisting of wines, liquors, cigars, saloon fixtures, etc., alleged to have been the property of the insolvent, Kuhl, and to have been transferred by him, in violation of the insolvent law, to defendant, a few days before Kuhl filed his voluntary petition in insolvency. Judgment went for plaintiff in the court be...
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Application for writ of mandamus requiring the defendant to settle the plaintiff's proposed statement on motion for new trial in a suit for the condemnation of land brought by the city of Santa Rosa against him and another. The case is submitted on demurrer to the petition, and, briefly stated, is as follows: A verdict was rendered in the case, on certain issues, December 29, 1900, and "thereupon,...
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In this action the defendant was granted a divorce on the ground of the extreme cruelty of plaintiff, and awarded seven twelfths of the community property, including the homestead. The plaintiff was awarded the remaining five twelfths. The aggregate value of all said property was found to be $7,748.50. The defendant appeals from that portion of the decree relating to the division of the property, ...
Views: 0
The plaintiff, by its attorney, William H. Jordan, Esq., brought an action in the superior court against the defendant, upon two separate causes of action, the first of *Page 382 which, amounting to $320.80, accrued to plaintiff directly, and the second cause of action, amounting to $105.73, accrued to the Pacific Refining and Roofing Company, and was by it assigned to said plaintiff and included...
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William H. Prather has been convicted of the crime of grand larceny, and appeals from the judgment rendered against him. The attention of the court will be directed first to a consideration of the sufficiency of the information. Section 786 of the Penal Code provides: "When property taken in one county by burglary, robbery, larceny, or embezzlement, has been brought into another, the jurisdiction ...
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Plaintiff recovered judgment, and defendants appeal from the judgment and order denying their motion for a new trial. The amended complaint alleges that defendant Melvina orally agreed to convey to plaintiff a certain one-half acre of land for the sum of fifteen hundred dollars, payable five hundred dollars cash, five hundred dollars on the delivery of the deed, and the remaining five hundred doll...
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This suit was brought against the defendant Mary E. Marshall, as administratrix of Samuel J. Marshall, deceased, to quiet the plaintiff's title to the land described in the complaint, against an instrument purporting to be a deed from the plaintiff to Mary Loftis, his wife (the grantor of the deceased), and against the claims of the defendants generally. The other defendants are Margaret Marshall,...
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Action upon a street-assessment. The defendant filed a general demurrer to the complaint, which was overruled, and he thereupon answered. Trial was had by the court, and judgment rendered in favor of the plaintiff. The defendant has appealed directly from the judgment, bringing the appeal here upon the judgment roll, without any bill of exceptions. The complaint states a cause of action sufficient...
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Action for the recovery of money alleged to have been on deposit with defendant, belonging to plaintiff's testate at her death. Defendant had judgment, from which and from the order denying motion for new trial plaintiff appeals. The court found the following facts: That decedent intermarried with John Nicholson, November 22, 1877, and they lived together as man and wife until her death, May 20, 1...
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This suit was brought to recover the amount of dividends on certain shares of the capital stock of the defendant, being the same shares of stock for which the plaintiffs afterwards recovered in the judgment affirmed in Ashton v. Heggerty,130 Cal. 516. The plaintiffs recovered judgment, from which and from the order denying a new trial the defendant appeals. The stock in question belonged originall...
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Appeals from judgment and final order of condemnation in suit to condemn defendant's land. The complaint was demurred to generally, and on the special grounds (among others) that it is ambiguous, unintelligible, and uncertain in its allegations as to the location, general route, and termini of the plaintiff's road, and, also, that it does not appear from its allegations that the use for which the ...
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The plaintiff recovered judgment for the sum of five hundred dollars, the value of a water right appurtenant to land purchased by him from the defendant, and conveyed away by the latter before the execution of the deed. The defendant appeals from the judgment and from the order denying his motion for a new trial. The contract for the purchase of the land was made between the plaintiff and defendan...
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The plaintiff is the wife of Frederich Tappendorff, and seeks by this action to recover from the defendant the possession of certain real property in the county of Humboldt. In her complaint, after setting forth facts under which a homestead might be declared by her husband, she alleges that on the sixteenth day of May, 1878, her husband executed and acknowledged "a valid declaration *Page 420 of...
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Action upon a street-assessment. Judgment was rendered in favor of the defendants, and the plaintiffs have appealed, upon the judgment roll, without any bill of exceptions. The only question presented by the appeal is, whether the contractor returned his warrant to the superintendent of streets within the time prescribed by the statute for the preservation of his lien. Section 10 of the Street-imp...
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A judgment was rendered by the superior court in the above-entitled cause, May 3, 1893, declaring the defendant to be the owner in fee and entitled to the immediate possession of certain real property in San Francisco, and that he recover possession of the same from the plaintiffs, and each of them. A new trial was afterwards granted by said court, and upon an appeal therefrom to this court, that ...
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Action to determine an adverse claim to certain real estate in the county of San Mateo. The findings of fact herein show that on June 8, 1895, and prior thereto, the plaintiff and the defendant Ida J. Martens – then the wife of the plaintiff – were the owners in common of the land described in the complaint, and that on that day they entered into a written agreement, by which the plaintiff was to ...
Views: 9
Motion to dismiss the appeal for failure to file the transcript within the time prescribed by the rules of this court. The motion is presented upon a certificate of the county clerk and an affidavit of Morgiana Sammis, one of the respondents. The suit is in ejectment, and a judgment of dismissal was entered in the superior court, June 22, 1897. An order denying a motion to vacate this order of dis...
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Defendant has been convicted of the crime of perjury, and appeals from the judgment and from the order denying his motion for a new trial. He first attacks the validity of the impanelment of the grand jury which found the indictment against him. Among other matters, section 242 of the Code of Civil Procedure provides: "When, of the persons summoned as grand jurors, and not excused, nineteen are pr...
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This is an appeal by Mary Trobock from an order denying her motion for a new trial. The order was affirmed by Department, upon the following statement and opinion: – "Judgment was rendered by the lower court against the appellant, Mary Trobock, and her co-defendant, Antonio Trobock, for the foreclosure of a mortgage for two thousand dollars and interest, executed to the plaintiff by the latter. Ma...
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Plaintiff prosecuted this action to obtain damages from defendant for its alleged breach of an option to sell land. Judgment passed for plaintiff, and from that judgment and from the order denying defendant's motion for a new trial defendant appealed. The following facts disclose the transaction between the parties: Defendant was the owner of certain land in Glenn County, known as the "Graves plac...
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The defendant was accused by information of the crime of murder, and by the verdict of a jury found guilty of manslaughter, upon which verdict a judgment was duly entered. On appeal, this court reversed that judgment and remanded the cause for a new trial. (People v. Smith, 121 Cal. 355.) Upon the next trial, defendant was again convicted of manslaughter, and he has again appealed. When the cause ...
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— This is a motion to dismiss the attempted appeal of certain defendants in the above-entitled action, upon the ground that the undertaking upon appeal was not filed within the time required by section 940 of the Code of Civil Procedure. The defendants undertook to appeal from a judgment entered upon the sixth day of August, 1900, and served notice of appeal upon all the parties in interest on ...
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Action in trover for the conversion of ten tons of prunes, alleged to be of the value of seven hundred dollars. *Page 462 The plaintiff bases its right of recovery upon a certain contract between it and the defendant Ainsworth, by the terms of which Ainsworth, who was the owner of a tract of land, upon which the prunes were then growing, "sold and transferred to plaintiff an undivided interest, e...
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Plaintiff, an incompetent person, by his guardian, sued defendant, his sister, in an action for accounting, and for cause of action alleged that he had executed to her a mortgage on land which he owned, the mortgage being to secure such advances as defendant might make to plaintiff, and to secure the repayment of such taxes as defendant might pay upon the land; that at the same time, and as part ...
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The action was brought to recover an unpaid balance due upon a judgment. It was commenced more than five years and less than six years after the entry of the judgment. This fact appearing upon the face of the complaint, defendant urged by demurrer that the cause of action was barred by section 336 of the Code of Civil Procedure, which provides that an action upon a judgment or decree must be broug...
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The court below sustained a demurrer to the verified petition for a writ of mandate herein, and refused to allow the petitioner to amend. Judgment was thereupon entered in favor of defendant. This appeal is from the judgment. The facts are stated in the petition, substantially, as follows: In the month of March, 1900, plaintiff furnished to the assessor of the city and county of San Francisco a ve...
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Action to recover money paid under protest for taxes levied and assessed by defendant upon the property of plaintiff. A general demurrer to the complaint was overruled, and defendant declining to answer, plaintiff had judgment, from which defendant appeals. Plaintiff is a reclamation district duly organized for the purpose of reclaiming certain swamp and overflowed lands. It is alleged in the comp...
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Plaintiff sued to recover damages for injuries sustained by him, through the derailment of one of defendant's electric cars moving upon a street in the city of Oakland. The cause was tried before a jury, and the verdict and judgment were for plaintiff. In due time defendant moved for a new trial, upon the grounds of misconduct of the jury, insufficiency of the evidence, and errors of law occurring...
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William Mauch was convicted in the police court of the city of Marysville upon a charge of cruelty to an animal, committed, as the complaint charged, by willfully and unlawfully cruelly beating and torturing a certain dog named "Sport," etc. It is claimed that his imprisonment upon said conviction is unlawful because the complaint fails to charge that the act was malicious, and that malice is an e...
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This is an action to have a deed, absolute on its face, declared to be a mortgage, and to foreclose the same. It appears from the findings, which are supported by the evi *503 dence, that plaintiff, in 1897, was a money-lender in San Francisco, and that the defendant J. F. Turner was indebted to him in the sum of seven hundred dollars, for which plaintiff held two promissory notes executed by s...
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Defendant was convicted of murder, and appeals from the judgment and order denying his motion for a new trial. It is claimed that the court erred in admitting in evidence two shirts and two pairs of cuffs under defendant's objection, for the reason that they were not sufficiently identified as the property of deceased. When defendant was arrested at Reno, the officer found in his room at the Clare...
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Action against surety on a statutory undertaking given for the purpose of having an attachment discharged pursuant to sections 554 and 555 of the Code of Civil Procedure. Judgment went for plaintiff in the court below, and from the judgment and an order denying a new trial defendant appeals. The plaintiff herein brought a former action against the Stockton and Tuolumne County Railroad Company, a c...
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James C. Dunham killed a number of people, and thereafter the parents of one of his victims brought suit against him for damages resulting to them from his having taken the life of their daughter. In said suit service was made by publication; the defendant did not appear, and plaintiffs obtained a judgment for eight thousand dollars and costs. Thereafter, execution was issued on said judgment and ...
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These appeals are all taken in the same case. The first (No. 515) is from an order denying the defendants' motion for a new trial; the second (No. 516) is by the same appellants, from the judgment; the third (No. 517) is by the plaintiff from the same judgment. Under our views of the case, it is not necessary to consider many of the contentions made by defendants. There is a motion by each of the ...
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The defendant was tried for murder, and convicted of the crime of murder in the second degree. He appeals from the judgment and from an order refusing a new trial. The first point urged arises from a challenge to the panel of trial jurors. Some objection might be urged against the sufficiency of the challenge, because it did not include a statement of the facts constituting the ground of the chall...
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I concur in the judgment of affirmance. I also concur in the opinion of the chief justice, except that I fear that what is said in paragraph 4 of the opinion might be construed as including more than I think the law warrants on the subject there discussed. I adhere to my concurring opinion in People v. Dole,122 Cal. 497,1 to the point that when a person is arrested on a charge of crime, he is not ...
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This is a companion case to that of Manuel Amaya, just decided, ante, p. 531. A few days after the conviction of Amaya, this defendant was tried upon a separate information, accusing him of the murder of Loucks, and he was found guilty of murder in the second degree. His appeal, also, is from the judgment and from an order denying a new trial. In many respects the points made in support of the ...
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Motions to dismiss appeals from the judgment and order denying a new trial. The undertaking on the appeal from the judgment was not filed until thirty days after the notice of appeal was served and filed, but it was filed within the time as extended by order of the judge of the court, and it has been decided that the court or judge has the power to make such an order. (Wadsworth v.Wadsworth, 74 Ca...
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An act of the legislature, approved March 28, 1895, entitled "An act to establish the fees of county, township, and other officers, and of jurors and witnesses in this state" (Stats. 1895, p. 267), directed the county clerk, upon the filing of the inventory and appraisement in the administration of an estate, to charge and collect the sum of one dollar for each thousand dollars of the appraised va...
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This is an action for damages for personal injuries, brought by the administratrix of the estate of John B. Harrison, deceased. Harrison was a passenger *Page 550 upon a street-car of defendant the Sutter Street Railway Company. As the car was passing westward upon Pacific Avenue, a collision occurred between the car and a brewery wagon belonging to the National Brewing Company, and as a result o...
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The plaintiffs appeal from a judgment in their favor, claiming that on the findings a different judgment should have been entered. The case as shown by the findings is as follows: The plaintiffs are the owners of several tracts of land, described in the complaint, lying in *Page 554 one body on the west shore of Honey Lake, in Lassen County, through which there flows easterly into the lake, throu...
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In 1893 the appellant contemplated the construction of a new railroad bridge across the Sacramento *558 River, at the city of Sacramento, and in response to an invitation from the board of supervisors of the county of Sacramento, its engineer appeared before that board and outlined the character and estimated cost of the bridge. There was at that time a bridge across the river, about four hundr...
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This action was brought to foreclose a contract made by plaintiff with the defendant S.G. McDowell for the sale of real estate, McDowell having failed to make the payments provided for by the contract. Plaintiff made appellant, Anna Maude McDowell, a defendant, alleging that she claimed some interest in said lands under S.G. McDowell. The answer of appellant denied that she claimed any interest in...
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This case involves the right of plaintiffs to certain mining machinery, including an engine and boiler, quartz-mill, battery, with buildings, tools, etc., placed by them on certain land of defendants. Judgment was for plaintiffs and defendants appealed. The following facts are alleged by plaintiffs and found by the court: Defendants are husband and wife, and in August, 1895, were the owners of ...
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This is an appeal from an order of the superior court directing the guardian of the above-named insane person to pay certain amounts to the southern California state hospital for the care and support of his ward at that institution, where he is detained under a commitment as an insane person. The only point urged by the guardian for a reversal of the order is to the effect that the law making the ...
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The complaint alleges that the plaintiff rented and the defendant hired from her a certain dwelling-house, 2519 Broadway, San Francisco, “for the term of six months, commencing January 15, 1896, ... for the rental of six hundred dollars, in six equal installments of one hundred dollars each, in advance, on the fifteenth day of each and every month.” The defendant denied the allegations of the com...
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Plaintiff's testate was killed on Van Ness Avenue, San Francisco, having been struck by a wagon drawn by a runaway horse belonging to defendant Nelson, and this action was to recover damages for the death. At the close of the evidence for plaintiff, the court granted a motion for non-suit. The appeal is from the judgment and from the order denying plaintiff's motion for a new trial. The driver of ...
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This action is based upon a claim against the estate of Adolph Sutro for fifty thousand dollars, presented by plaintiff to defendants and by them rejected. The demurrer to the complaint was sustained on the ground of “lack of juris *581 diction,” and without leave to amend. The defendants had judgment, from which plaintiff appeals. The essential facts as set out in the complaint are as follow...
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Action for an injunction against the interference of defendant with plaintiff's ditch. The defendant filed a cross-complaint, alleging that he was the owner of the Buena Vista Quartz Mine, situated below the head of plaintiff's ditch on Duckwall Creek, and that plaintiff, by means of its ditch, had deprived defendant of the use of the water of said creek in and upon his said quartz-mining claim; a...
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This action is between two corporations, each of which has its principal place of business at San Francisco, to recover damages for alleged injury to real property in Kern County. At the proper time the defendant demanded a change of the place of trial to Kern County, showing, to obtain the order, only the fact that the property alleged to have been injured is in that county. This appeal is from a...
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This is an original petition here for a writ of mandamus to require the defendant, as judge, to settle a certain bill of exceptions. In an action entitled Reed v. Kowalsky (the petitioner herein), a judgment had heen rendered in defendant’s court in favor of plaintiff therein, and the court had dismissed a proceeding instituted therein by petitioner for a new trial, and this present petit...
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Appeal from a judgment for the defendants, and from an order denying the plaintiff's motion for a new trial. The case, briefly stated, is as follows: The suit was brought against the defendant Stout, who had been superintendent of schools of Butte County, and his sureties, to recover the sum of $530, damages and costs. The cause of action alleged is, that the defendant Stout, as school superintend...
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Action to quiet title to certain land. Defendant Burke disclaimed all interest in the property. Defendant Henry filed a separate answer, deraigning title through one Dependener, to whom the land was sold for non-payment of delinquent taxes assessed for the year 1892-93. Plaintiff had judgment, from which and from the order denying his motion for a new trial Henry appeals. The court made the fol...
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This is an action to foreclose a mortgage given to secure the payment of a promissory note dated March 2, 1892, due one year from date. The action was commenced September 6, 1898, about eighteen months after the right of action was barred, unless there was a new promise or acknowledgment sufficient to keep the debt and the lien alive. The defense of the statute is made. Anticipating the defense un...
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Upon a careful reconsideration of this case we are convinced that there is no substantial conflict in the evidence, and that there is nothing to support the findings of the superior court to the effect that the lot in controversy, upon its conveyance to Mrs. Hamilton, became community property. The Department opinion will therefore stand. The point is made in the petition for rehearing that the pl...
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This action is brought to quiet the title to a certain tract of land situated within the limits of the city of Anaheim. Plaintiff appeals from the judgment and order denying its motion for a new trial. Defendant's predecessor in interest plated a certain tract of land within the limits of the city of Anaheim, by dividing it *Page 609 into lots, blocks, etc., and filed the plat or map thereof in t...
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In the above-entitled case – which was a suit brought in the name of the people of the state against the defendant Madden, as treasurer of Modoc County, and his sureties, – judgment was entered on the motion of John McGahey, intervener, and now respondent, against the plaintiff, for the dismissal of the action, and against John E. Raker, the appellant, – who was plaintiff's attorney, and not other...
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This suit was brought to quiet the plaintiff's title to the land in controversy, as against a deed executed by the defendant White to the defendant Wise, of date April 5, 1893, at which time, it is admitted, the former was the owner of the land described in the deed. The plaintiff, who is the divorced wife of the defendant White, deraigns title to the same land under a sale subsequently made to he...
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—The appeal here is from the judgment and from an order denying the plaintiff’s motion for a new trial, but the case may be disposed of on the appeal from the judgment. The suit was brought to recover the land described in the complaint (which is- the same as that involved in White v. Wise, ante, p. 613), and damages for detention. The complaint alleges the plaintiff’s ownership of the land, ...
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The defendant was tried upon an information charging him with murder, and convicted of manslaughter, and appeals from the judgment and from an order denying his motion for a new trial. The grounds urged for reversal are error in the exclusion of evidence and in the instructions. On the trial, the testimony of witness Penycock, taken on preliminary examination of the defendant, was read in evide...
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The action is to condemn a strip of land for a ferry-landing, 60 x 145 feet, on the west bank of the Sacramento River, in Yolo County. Judgment went for the plaintiffs, from which and an order denying a motion for a new trial defendant appealed. 1. It is contended on the part of the appellants that the complaint fails to show that the plaintiffs were the owners and holders of a franchise to erect ...
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The petitioner alleges that he is illegally confined in the Napa state hospital and restrained of his liberty by A.M. Gardner, the superintendent thereof, and seeks his discharge. In his return to the writ issued upon the petition, the respondent shows that he holds the petitioner in custody by virtue of an order of commitment issued by the Hon. A.J. Buckles, judge of the superior court for the co...
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Action for damages. The cause was tried before a jury, and the verdict was for plaintiff. He appeals from the judgment, from the order denying new trial, and from the judgment disallowing him his costs. Plaintiff was the owner of a leasehold interest in a certain lot in White's Addition to Riverside, the lease being for three years from November 13, 1895, with privilege of renewal at same rental f...
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[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 643 [EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 644 In the decision in this case rendered in Bank, April 7, 1900, it was held that the finding of the trial court ...
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The petitioner sued for and obtained an alternative writ of prohibition from this court, upon averments in his petition to the effect that he was the grantee of the mortgagor and in possession of the mortgaged premises; that a foreclosure suit had been instituted and a receiver appointed, and that by order of court he was directed to attorn to the receiver and pay a monthly rent of twelve dollars...
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The appellant presented to the superior court an application to have admitted to probate as a last will and testament a certain document annexed to her petition, which she alleged to be a true copy of a will executed by her husband, and fraudulently destroyed in his lifetime. The respondent filed a contest of the petition, and upon the hearing the following facts were shown: The decedent made and...
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Plaintiff is the assignee of James Clulow, an insolvent debtor, and brought the action, under section 55 of the Insolvent Act of 1880, against Alexander, James, and William Irvine, partners as Irvine Brothers, and D.E. Besecker. The object of the action was to recover the value of certain goods attached and sold at the suit of Besecker against Clulow. Mr. Besecker is a practicing attorney and a pr...
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Mandamus. Plaintiff is the owner of warrant No. 222, drawn by the trustees of Reclamation District No. 551, on June 5, 1895, for the sum of $3,851.50, upon the defendant, as county treasurer. Said warrant was, on June 7,1895, presented to the defendant for payment, but there being no funds in the county treasury to the credit of said district with which to pay the warrant, the treasurer indorsed ...
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This action was brought by plaintiff, as a creditor, to set aside a deed made by defendant Louis Helbing to defendant Louise Helbing, his wife, upon the ground that said deed was fraudulent and void as to plaintiff. Judgment was entered in favor of plaintiff against defendant Louis, and against plaintiff in favor of defendant Louise. Plaintiff appeals from the judgment in favor of defendant Louise...
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Defendant was convicted of the crime of unlawfully and maliciously burning and destroying his dwelling-house and certain of its contents, situate in the city of Oakland, with intent to defraud the insurers of said property, and was sentenced to imprisonment for five years in the state prison. It is not claimed that the evidence did not justify the verdict. A new trial is asked on the ground of cer...
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he defendant has been convicted of felony, under an indictment charging him with a violation of section 115 of the Penal Code, wherein it is provided that every person who knowingly procures or offers any false or forged instrument to be filed, registered, or recorded in any public office within this state, which instrument, if genuine, might be filed, or registered, or recorded under any law of ...
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—Defendant has been tried and convicted of the crime of rape, and prosecutes an appeal to this court, contending that the information does not state a public offense, in this, that it is not alleged by the information that at the time of the commission of the alleged crime the prosecutrix was not the wife of the defendant. We do not find it necessary to enter into a consideration of the question ...
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Appeal from judgment in favor of proceeding, condemning certain lands in the city of Alameda for a public street and from an order denying defendant's motion for a new trial. The main contention of appellant is, that the act of March 6, 1889 (Stats. 1889, p. 70), is unconstitutional. The act has heretofore been before this court, and held to be valid (Davies v. Los Angeles,86 Cal. 37); and again i...
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Defendant was convicted of the crime of rape. The superior court granted a motion for a new trial, and the state appeals. The offense is alleged by the information to have been committed upon June 30, 1899, and the prosecutrix was alleged to have been under the age of consent. At the trial, four separate acts of sexual intercourse committed by defendant were sworn to by the prosecutrix. These acts...
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The plaintiff is incorporated under the laws of this state for the purpose of carrying on the business of a building and loan society, and banking incidental to said business, and has been so engaged since its organization. In connection with its business, the firm of J. W. Seligman, bankers, doing business in the city of New York, have been its correspondents, and it has been accustomed, from ti...
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[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 18 The defendant was convicted of rape, charged to have been commited on a girl under the age of consent, and sentenced to a term of forty years in the state prison at *Page 19 San Quentin. He appeals from the judgment of conviction, from an order denying hi...
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Section 20 of article XII of the constitution provides that “ whenever a railroad corporation shall, for the purpose of competing with any other common carrier, lower its rates for transportation of passengers or freight from one point to another, such reduced rates shall not be again raised or increased from such standard without the consent of the governmental authority in which shall be vested...
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This action was brought to recover on a policy of fire insurance insuring plaintiff in the sum of two thousand two hundred dollars "on one-story shingle-roof frame building and its additions adjoining and communicating, while occupied as adwelling-house." The case was tried before a jury, and a verdict rendered for plaintiff. Defendant appeals from the judgment, on the judgment roll and a bill of ...
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The court below sustained defendant's demurrer to the amended complaint. Plaintiff declined to further amend, and judgment was entered for defendant. This appeal is from the judgment, for the purpose of determining the question as to the correctness of the order sustaining the demurrer. The amended complaint was filed May 26, 1898, and states, in substance, that on April 1, 1893, a judgment was du...
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Appeal from an order approving and settling the administrator's account. The only part of the account drawn in question is the following item: "Mrs. P.H. McClelland, pies, cakes, soups, etc., $208.00"; which the court allowed as a proper charge. Letters were issued to the public administrator, and the sole heir at law of the deceased filed written objections to the above item. There is no brief fo...
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Defendant has been convicted of the crime of burglary, and appeals to this court. Some intimations are made to the effect that the evidence is insufficient to support the verdict, but after a careful reading of it, the court is entirely satisfied with the verdict rendered. A witness testified that she saw a man, soon after the burglary, running from the house burglarized. A second witness testi...
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The appeal is taken from the judgment and also from the order denying defendant's motion for a new trial. The action was brought in the superior court of the city and county of San Francisco, by one Joseph E. Shain, for whom the present plaintiff was substituted as plaintiff at the trial. The action is founded upon a promissory note of the defendant, constituting one of the so-called guaranty note...
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A judgment was recovered by the defendant herein, against the plaintiff and others, in the superior court of Tulare County, February 15, 1897, for the foreclosure of a mortgage made by the latter to the former. In the judgment as originally entered, there was no adjudication that the plaintiff was personally liable, or provision for a deficiency judgment against him; but afterwards, March, 13, 189...
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This is an appeal from the judgment, for the purpose of reviewing the order sustaining defendants' demurrer to the amended complaint. It is alleged that one W.R. Hall, being indebted to one Kraft in the sum of three thousand dollars, on or about the twenty-sixth day of January, 1896, caused to be issued to said Kraft, to secure the said indebtedness, a certificate of seventy shares of the capital ...
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Appeal from a judgment for plaintiff in ejectment. The plaintiff and the defendant Joseph Wagner both deraign title from one George Hansen, – the plaintiff, under foreclosure of a mortgage made by him to John Hansen, August 6, 1892; the defendant, under a deed subsequently made by the mortgagor to one Eubanks, and a deed of the latter to him, of date May 10, 1897. The controversy turns upon the ef...
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Defendant was indicted, tried, and convicted of the crime of obtaining money by false pretenses. He appeals from the judgment and from the order denying his motion for a new trial. In a long and studious brief his counsel assails the sufficiency of the indictment under which conviction was had, urging that the demurrer to the indictment should have been sustained and his motion in arrest of judgm...
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The defendant was appointed, by the board of supervisors, city justice of the city of San José, on the death of the incumbent, November 12, 1900, and has since continued in occupation of the office. His predecessor had previously been appointed, on the death of the original incumbent, one Gass, and prior to the appointment of defendant, November 22, 1900, the board had ordered an election to fill ...
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This is an appeal from a judgment in favor of plaintiff and from an order denying the defendant's motion for a new trial. The action was brought for the purpose of quieting plaintiff's title to the lots described in the complaint, situated in *Page 79 the city of Alameda. The plaintiff relied on title by adverse possession. The court found that plaintiff's testate, "ever since the sixteenth day o...
Views: 9
This action was brought to recover of defendant Coschina as constable, and the other defendants as sureties on his official bond, a certain stock of cigars, goods, and fixtures in a cigar-store at No. 116 West Santa Clara *Page 83 Street, in the city of San José, or in case a delivery cannot be had, the value thereof, with damages for the detention. The case was tried with a jury, and a verdict r...
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The plaintiff was the son and is the sole heir at law of the above-named deceased. The defendant was the brother of said deceased. The suit is to have surrendered and canceled as fraudulent and void a certain deed of gift executed by said deceased to her brother during her last illness, and some four or five days before her death. The plaintiff appeals from a judgment in defendant's favor and from...
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Plaintiff brought the action, by a verified complaint filed September 8, 1896, against Hanson Co., an alleged copartnership, for a balance due for labor performed for said copartnership, from June 1, 1890, until October 1, *Page 93 1894, under a written contract alleged to have been entered into May 13, 1890, with said Hanson Co. The cause was tried by a jury, and plaintiff had the verdict, and...
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Marian G. Norton and H.C. Morrill, defendants, appeal from the judgment of the superior court for the foreclosure of a mortgage executed by Marian G. Norton to the plaintiff, and for the foreclosure, on the cross-complaint of defendant Yocco, of a mortgage executed by Marian G. Norton to him. During the progress of the administration upon the estate of Henry B. Norton, deceased, formerly husband o...
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Action to foreclose lien for construction of a sewer in the city of Los Angeles, under the so-called Vrooman Act, passed March 18, 1885, as amended in 1889, 1891, and 1893. The second amended complaint was demurred to for insufficient facts. It was overruled, and the appellant answered. Judgment was for plaintiff, and this appeal is from the judgment and from an order denying a new trial. 1. Most,...
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Appeal from an order refusing motion of defendant to modify an injunction. The injunction affected by the motion was part of the judgment rendered March 10, 1896, in a suit of the people against the defendant corporation, under section 11 of the Bank Commissioners' Act, as amended March 26, 1895. (Stats. 1895, p. 173.) The motion was made on two grounds, namely: the one, "that the judgment, . . . ...
Views: 4
This action is brought by the assignee of the defendants in an attachment suit against the sheriff of the city and county of San Francisco, and the sureties on his official bond, for damages arising out of a failure on the part of said sheriff to safely keep the attached property of the said defendants in said attachment suit and to restore the same to said defendants on demand after judgment rend...
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Action to enforce a lien for street-work, claimed under the mechanic's lien law. Plaintiff had judgment, from which defendants appeal, on bill of exceptions. This is the second appeal of the case. In the first appeal the judgment for plaintiff was affirmed in Department (Santa CruzRock Pav. Co. v. Lyons, 43 Pac. Rep. 599); on rehearing in Bank, the judgment was reversed on the ground that section ...
Views: 3
Appeal from judgment and order denying motion for a new trial. The indictment is in the following language, to wit: – "The said Samuel B. Terrill is accused by the grand jury of the county of Santa Clara, state of California, by this indictment, found this 12th day of June, A.D. one thousand eight hundred and ninety-nine, of the crime of forgery, committed as follows: The said Samuel B. Terrill, o...
Views: 8
This suit was brought to obtain a new trial of the case of the defendant The J.B. Painter Company, against the defendant Colton as receiver of the late firm of Painter Co., in which judgment had been entered for the plaintiff therein for the sum of $11,085.73; and also to enjoin the execution of the judgment against property in the hands of the receiver. The suit referred to had been brought on a...
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A.C. Freese, public administrator of the city and county of San Francisco, filed his petition for letters with the will annexed of Catherine E. Gregory, deceased, praying that it be admitted to probate. In the offered will, Charlotte B. Gregory, adopted daughter of deceased, is named as legatee, and Martha Munson, widow of the late John Munson, as guardian of Charlotte, but no executor was named. ...
Views: 2
Appeal from a judgment against the defendant for the sum of $354,882.70. The appeal is on the judgment roll. The complaint is in the ordinary form, by the assignees of numerous depositors, and other creditors of the defendant, simply alleging the various items of indebtedness and their assignment to the plaintiffs, and praying for judgment for the aggregate amount, with interest at the rate of sev...
Views: 1
This is an appeal from the judgment. No brief has been filed in behalf of any of the respondents, and the entire labor of examining the points made by plaintiff has thus been cast upon this court. The contention is made that certain findings of the court are contrary to the admissions in the pleadings, others outside the issues, and that the judgment is not the legal conclusion from the facts foun...
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Action to foreclose lien for street-work in the town of Berkeley. Plaintiff had judgment, from which and from the order denying their motion for a new trial defendants appeal. The resolution of intention described the work to be done as follows: "That San Pablo Avenue, in said town, . . . . be graded for its full width to the official lines and grade, curbed, guttered, and macadamized, and that cr...
Views: 3
The defendant was tried on a charge of murder, and convicted of manslaughter. He appeals from the judgment and from an order denying him a new trial. A *157 brief summary of the facts of the homicide will facilitate the discussion of such of the numerous assignments of error as require special notice. The defendant and one McGaw had gone to the place of the killing for the purpose of getting ...
Views: 12
This is an appeal taken by one of three executors from a decree of final settlement and an order fixing the value of legal services. The estate was valued at ninety-four thousand dollars. The administration was all fair sailing. There was no dispute or controversy about anything. It was a mere matter of going through the forms and waiting for the lapse of the time required. In the final settlemen...
Views: 1
The defendant was convicted upon a charge of rape upon the person of a child aged thirteen. The appeal is from the judgment and from an order denying a new trial. As I think the judgment must be reversed, many of the points made will not require consideration. Only those will be noticed, other than the one which necessitates a reversal, which may be necessary for the guidance of the court upon a r...
Views: 38
Plaintiff's complaint charged in two counts. By the first, he sued in quantum meruit et valebat for the reasonable value of materials furnished and labor performed by his assignor, which he alleged to be $2,049. Of this sum there remained unpaid $572.25, for which he demanded judgment. By the second, he pleaded an express contract with defendant, under which his assignor was to refloor and repair ...
Views: 11
The decedent left all his estate by will to his ten nephews and nieces, all of whom are non-residents of the state of California, three of them residing in the state of New York and seven in Ireland. Seven of the said nieces and nephews appeal – 1. From that portion of the decree of final distribution herein which deducts five per cent from their respective distributive shares for collateral inher...
Views: 6
After the bank commissioners, acting under the authority given them by section 11 of the Banking Act, as amended in 1895 (Stats. 1895, p. 175), had seized and taken into possession all of the assets of the bank, and had reported the affair to the attorney-general, and he had commenced a suit to enjoin the transaction of further business, but before the court had acted in reference to the matter, t...
Views: 1
This appeal is by the defendant corporation from the judgment and an order denying its motion for a new trial. The facts are substantially as follows: Prior to January 24, 1896, a certain copartnership existed under the name and style of "Francis and Valentine." T.B. Valentine, plaintiff's testate, was, at all times during its existence, a member of said firm. The said copartnership did its bankin...
Views: 9
This is an action instituted by an elector of the city of Sacramento, under the provisions of the Purity of Elections Act (Stats. 1893, p. 15), contesting the right of the defendant, mayor elect of the city, to his office. After trial, judgment passed for the defendant, and from that *Page 199 judgment contestant appeals, the evidence being brought up for review by bill of exceptions. It is charg...
Views: 12
Plaintiffs complaint charged in three counts. The first was a simple action upon a promissory note for $750, executed by defendant to plaintiff; the second was for the value of professional services rendered by plaintiff to defendant as his attorney at law, made up of several items, and aggregating the sum of $800; the third charged that defendant had been in the custody, management, and control ...
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This action was brought to recover damages for injuries sustained by the plaintiff, an infant seven years of age, from falling into a cellar of defendants, situated on a vacant lot in the city of Los Angeles. The cause was tried without a jury, and upon the findings the court gave judgment in favor of plaintiff. Defendants moved for judgment upon the findings. Their motion was denied So, also, was...
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This appeal is taken by defendants Rademacher and Osmont from a decree quieting the title of plaintiff to thirty-two sixtieths and of defendant Middlecoff to eight sixtieths of a certain mining claim. Rademacher was, on the eleventh day of January, 1897, the owner of a certain mine in the Randsburg district, in this state. On that day he conveyed an undivided two-thirds interest in the mine to the...
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Plaintiff sued appellant, Sawday, and others by a complaint containing allegations appropriate both in an action in ejectment and in an action to quiet title. The land was described by government subdivisions as "the southwest quarter of the southeast quarter and the southeast quarter of the southwest quarter," etc. For answer, appellant, Sawday, disclaimed "all right, title, and interest in the l...
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Judgment was entered for the plaintiff upon the findings, and the defendants appeal therefrom and from an order denying a new trial. Defendant John Cameron, being the owner of certain real estate, on September 21, 1895, entered into a contract with one G.A. Clark, whereby he agreed to sell the same to Clark for the sum of $3,550, – $2,000 to be paid December 1, 1897, and $1,550 to be paid December...
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The plaintiff, before and after September 19, 1893, was engaged in the business of canning fruit, and of manufacturing metal cans for its own use and for sale, and owned and operated in its business a machine known as the “ Wheaton header,” used for putting heads on cans. At the date named, in a suit against plaintiff then pending, an injunction was issued, restraining plaintiff from using this m...
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This appeal is from a judgment against appellants, foreclosing a lien for materials furnished for the construction of a building C.A. Conant, the contractor, and certain fictitious persons were made defendants, but no judgment was taken against them. Mrs. E.S. Jones is the owner of the lot upon which the house was built, and E.W. Jones is her husband, and acted as her agent. *Page 243 On August 1...
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Mandamus to compel the respondent, clerk of the county of San Mateo, to issue an execution in a case in which the petitioner is plaintiff, and the Crocker Estate Company, a corporation, and Ernest A. Leigh are defendants. The petition shows that on the trial of said cause, which was an action of forcible entry and detainer, a verdict was rendered in favor of the plaintiff therein, January 5, 1900,...
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Appeal from an order refusing to dissolve an injunction. The plaintiff is a corporation formed for the purpose of supplying the owners of land in the Ontario Colony tract with water, and in fact supplies with water for domestic use, some two thousand five hundred people, and with water for irrigation, some six thousand acres of land, planted in fruit trees and vineyard, and dependent for water on ...
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Action to foreclose certain mortgages. Findings were filed, and judgment entered against appellants. The appeal is from the judgment, on the judgment-roll. 1. It is claimed that the court erred in striking out the demurrer of appellants to the amended complaint. It is not shown that the demurrer was well taken, or that it should have been sustained if it had not been stricken out. The appellants w...
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I dissent both from the views and the conclusion declared by the majority of the court in the above-entitled cause, and adhere to the views and conclusion heretofore declared in the opinion found in 62 Pac. Rep. 459. I cannot agree to the construction given by the court to that portion of section 1578 of the Code of Civil Procedure which provides: "Jurisdiction of the court to administer the estat...
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Henry K. Winchester died testate, February 21, 1895. In his will he provided as follows: "I give to the Santa Barbara Natural History Society, of Santa Barbara, California, the sum of two thousand dollars." At the time of his death, and until June 28, 1898, this society was an unincorporated organization, on which latter date the members of the society duly incorporated under the laws of this stat...
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The defendant appeals from a judgment convicting her of embezzlement and from an order denying her a new trial. The only point urged by appellant is, that the evidence does not show that the crime of embezzlement was committed for the reasons, – 1. That it fails to show that the property was "intrusted" to the defendant; 2. It fails to show that defendant took the money and converted it to her own...
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This action was brought under the provisions of section 8 of the County Government Act of 1893 (Stats. 1893, p. 347), to recover $1,035, alleged to have been illegally paid to defendants for county printing. The plaintiff appeals from a judgment following an order sustaining a demurrer to its amended complaint. The complaint as amended, so far as necessary to be here stated, alleges, in substance,...
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This action was brought to recover an amount claimed as wages for labor performed in mines in the lands of appellant corporation, and to have the said amount declared to be a lien upon the mining lands described in the complaint. Findings were filed, and judgment ordered for plaintiffs. This appeal is from the judgment, upon the judgment-roll and a bill of exceptions. The complaint alleges that th...
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—On motion of plaintiffs a judgment on the pleadings was rendered in their favor, and defendant appeals from the judgment. It is averred in the complaint, in addition to the averments *293 of the partnership of plaintiffs, the incorporation of defendant, and other formal matters, that on and prior to June 1, 1895, defendant and one Percy Easton were partners, under the firm na...
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The defendant was convicted of murder in the second degree, and appeals from the judgment and from an order refusing a new trial. The only question of importance is, whether there was sufficient evidence to warrant the verdict. It is the old case where it is contended that the corpus delicti was not satisfactorily shown. It is a charge of child- *296 murder, and it is contended that there was...
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This is an appeal by defendant Zadock H. Russell, administrator, from a judgment rendered in plaintiff's favor upon a certain note and mortgage for eight hundred dollars and interest. No defense is made on the real merits of the case – that is, it is not pretended that the mortgage was not given to secure a just debt. The attacks on the judgment are based on certain alleged irregularities and fail...
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In this case the original plaintiff, Jacob Rosenberg, having died pending the appeal, Mary Rosenberg, executrix of his last will, was duly substituted as plaintiff and appellant herein. The action is brought to quiet title and compel a conveyance to plaintiff from defendants of certain lands situated in Mono County. The defendants had judgment on a nonsuit granted on their motion on the trial o...
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This is an action in ejectment. Plaintiff obtained judgment in his favor, and defendants appeal from an order denying them a new trial. The plaintiff owned lands adjoining defendants’ lands on the east, their common boundary being a line drawn through the section from north to south, parallel with and 80 rods west of the east line of section 35, in township 4 north, range 15 west, San Bernardin...
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Appeal from a judgment rendered upon demurrer to the third amended complaint. The action is upon an alleged contract between the plaintiff and defendant Knippenberg, and a bond executed by both defendants to the plaintiff to secure the performance of said contract by Knippenberg. The defendants demurred severally, for want of facts sufficient to constitute a cause of action, and for uncertainty an...
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This is an appeal by defendants from a judgment in favor of plaintiff for the foreclosure of a mortgage. On July 12, 1890, the defendants executed the mortgage in question to the plaintiff, to secure their promissory note of even date to plaintiff for three thousand six hundred dollars, due in six month, with stated interest, the whole principal and interest to become due, at plaintiff's option, u...
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Plaintiff brought the action to compel defendants to answer and to cause their respective rights to certain shares of plaintiff company to be determined. The cause was tried on an agreed statement of facts, and defendant Wulff was adjudged to be "the holder and pledgee of certificate No. 61 for one hundred shares of the capital stock of the West Coast Safety Faucet Company, and entitled to have th...
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This appeal is from a judgment rendered upon certiorari by the superior court of Marin County, affirming the judgment of a justice of the peace. A case was tried by the justice, and at the conclusion of the trial was taken under advisement, and the parties were allowed to file briefs. Some months afterwards, the justice rendered judgment in favor of the plaintiff in that action. The defendant subs...
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The appeals in this case are taken from orders or judgments refusing to revoke the probate of a will. A motion is now made by respondent to dismiss those appeals, upon the ground that such orders or judgments are not appealable. Prior to 1901 the Code of Civil Procedure (sec. 963, subd. 3) did not authorize an appeal from an order or judgment refusing to revoke the probate of a will. That question...
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The court below sustained a demurrer to plaintiff's complaint, without leave to amend, and this appeal is from the judgment, for the purpose of reviewing the order sustaining the demurrer. The action was brought to foreclose a lien for money paid out by plaintiff for destroying certain scale and other insects found upon the trees in defendant's orchard, the lien being claimed under the provisions ...
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Defendant was convicted of embezzlement. He moved in arrest of judgment, which motion being denied, he moved for a new trial. This motion was also denied, and hence this appeal. There was no demurrer to the information. It is not contended that the evidence fails to support the verdict. 1. The motion in arrest of judgment is based upon the ground that the information does not charge a public offen...
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Appellant, upon filing his complaint in the court below, obtained an alternative writ of mandate requiring respondent, as county auditor, to draw warrant upon the county treasurer in his favor the sum of $34.50, for services as shorthand reporter in a justice's court upon the examination of a prisoner charged with grand larceny, or show cause why he should not do so. The defendant appeared and dem...
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This is an appeal from an order dissolving an injunction. The plaintiff alleged in his verified complaint that he and the defendant M.L. Vaughn were each owners of an undivided one-half interest in a certain mining claim situated in Kern County; that investigation had demonstrated that the *Page 336 ores in said mine could not be extracted, shipped, and treated in any mill available for that purp...
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Quo warranto. In December, 1898, the city council of the city of Los Angeles received a written petition, under the provisions of the act of 1889 (Stats. 1889, p. 358), praying that certain territory adjacent to said city be annexed thereto and incorporated therewith, pursuant to which certain proceedings were had, which respondent claims effected the annexation of said territory. Appellant conten...
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Appeal from a judgment dismissing the action. The suit was brought against the defendant Madden, county treasurer, and his sureties, to recover the sum of $34,825.35, money of the state and county, fraudulently converted by him. Judgment was entered by stipulation against the sureties, – excepting one, as to whom the action was dismissed, – and, amongst others, against McGahey, now intervener. The...
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In the foregoing opinion much is said about the Great Charter, the Petition of Right, and our own fundamental law, as forbidding the unlawful restraint of the liberty of the citizen; yet it must be borne in mind that every violation of a constitutional right of an imprisoned citizen does not form the basis of a petition for a writ of habeas corpus. If a citizen is to be discharged from custody upo...
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This action was brought to effect the redemption of a tract of land from the lien of a mortgage, alleged to have been given by the Brentwood Coal Company, a corporation, to one James T. Sanford. It is alleged that defendant is in possession of the land as assignee of said mortgage, and is holding the land as security. It is also averred that the corporation became insolvent and was disincorporated...
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Motion to dismiss an appeal. The appeal is taken by defendant, or attempted to be taken, from an order of the superior court of the county of San Mateo changing the place of trial of said cause therefrom to the superior court of the county of Santa Clara. The motion to dismiss the appeal is based upon the ground that the notice of appeal from said order, as well as the bill of exceptions settled b...
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This is an original petition here for a writ of prohibition to arrest all further proceedings upon *Page 365 a certain order of the respondent the superior court appointing a receiver. The apointment of the receiver was made in a certain action brought by one Gillis against one Galvan and others to foreclose a mortgage executed by Galvan and wife to Gillis on a certain tract of farming land. The ...
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This appeal is by the people from an order sustaining defendant's demurrer to the indictment. The indictment attempted to charge the defendant with the crime of perjury, in making a certain affidavit in the matter of the estate of James G. Fair, deceased, in a proceeding entitled "Petition of Nettie R. Fair for a family allowance." The main contention in support of the ruling of the lower court is...
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The defendant was convicted of forgery, and appeals from the judgment and from an order denying a new trial. The writing alleged to have been forged was a certain contract for the exchange of certain land, between *372 John A. McCarty, party of the first part, and Edna E. Nave and her husband, A. G. Nave, parties of the second part. There was ample evidence to warrant the jury in finding that...
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This is an action for damages, against Mrs. Tally, by the assignee of certain persons who had performed labor or furnished materials in the construction of a building, for failing to cause a bond to be filed with the building contract, as required by section 1203 of the Code of Civil Procedure. A bond was in fact filed, and apparently in good faith designed to comply with the statute, but it was f...
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The case was before this court on a former appeal, on a judgment for defendants, rendered on demurrer to the complaint, which was reversed. The decision is reported in Bennett v.Wilson, 122 Cal. 509,1 where the case is thus stated: "The facts alleged which are necessary to illustrate the main question discussed by counsel may be briefly stated. Defendant company is a foreign corporation, and owned...
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Appeal from an order settling the final account of appellant as guardian, and from an order denying his motion for a new trial. The controversy relates to a single item of twelve hundred dollars and accrued interest. On April 4, 1895, appellant had in his hands said sum of money, and on that day, upon his petition, an order was made by the superior court directing the guardian to lend said sum to ...
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Action to condemn right of way for sewer. Defendant Jacobson was a tenant of defendant Gildmacher, and made default. Defendant Gildmacher answered. At the close of the evidence, the jury, on motion of defendant Gildmacher and by direction of the court, rendered a verdict that there was no necessity for taking the property described in the complaint, and judgment was entered accordingly. Plaintiff ...
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Plaintiff, as assignee, brings an action of foreclosure of mortgage against defendants, the mortgagors. He became the purchaser of the property at the sale, and, six months thereafter, receiving his deed, he made an application for a writ of assistance, which writ was ordered issued. The present appeal is now prosecuted by defendants from the order granting the writ of assistance. At the time the ...
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When this case was called for trial, the defendant objected to all evidence offered by plaintiff, upon the ground that the complaint does not state facts sufficient to constitute a cause of action. The court sustained the objection, and, upon defendant's motion, judgment of non-suit was entered. This appeal is from the judgment. The defendant contended, and the court held, that the claim upon whic...
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The plaintiff sued, as assignee, to recover the amount due on a promissory note, of date August 5, 1897, made by Silas Carle, the defendant's testator, to the "Rae Building and Contracting Co." for the sum of one thousand dollars, "said amount to be paid on or before the completion of a certain contract entered into in the month of September, 1896, by and between [the maker] and the board of regen...
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Action to foreclose a mortgage. Defendand Albert F. Kleinsorge made default. Plaintiff had judgment against both defendants from which and from the order denying her motion for a new trial defendant Mamie L. Kleinsorge appeals. The note and mortgage were executed by both defendants, who are husband and wife. The note was dated August 1, 1896, and was drawn payable one year after date, with interes...
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This is an action to foreclose a mortgage given to secure the payment of a note for the principal sum of $48,500, besides interest and attorney's fees. The plaintiff had judgment, and defendants appeal therefrom, and urge three grounds of reversal, which we will notice in their order. 1. The sufficiency of the summons is challenged, and a motion was made to quash the same, on the ground that it di...
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Action to quiet title. The cause was dismissed as to all the defendants except Dorn. James H. Blackburn died testate, and in his will he provided as follows: "I give, devise, and bequeath to Frank Blackburn, Harry Blackburn, Daniel Blackburn, and Frederick Blackburn, children of Daniel and Cecilia Blackburn, my dairy ranches, part of the Rancho San Jeronimo, in San Luis Obispo, state of California...
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This action was brought, in the nature of replevin, to recover certain personal property, consisting of a certificate representing ten shares of water stock. The facts material to the consideration of the case are these: This property came into the possession of Parks as executor of the last will and testament of the aforesaid deceased. Pending administration he borrowed two thousand dollars of d...
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—This is an appeal by C. C. Franklin, administrator of the estate of one Damke, deceased, from an order of the superior court of Sacramento County, made and *431 entered on August 4, 1900, directing general letters of administration upon said estate to be issued to S. B. Smith, public administrator of that county. The facts of this cause are closely connected with the facts of cause “ Sac. No. ...
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The public administrator of the county of Sacramento appeals from an order of the superior court of *Page 434 the county of San Joaquin appointing C.C. Franklin, public administrator of that county, administrator of the estate of Fred W. Damke, deceased. He had theretofore, in said proceeding, filed a written opposition to the appointment of Franklin as administrator of said estate, claiming that...
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Action to recover possession of personal property. The plaintiffs had judgment for certain pipe, hydrants, tools, etc., of the value of $845.20, but their claim for the recovery of certain buildings was denied, and from that portion of the judgment they appeal, upon the judgment roll. The evidence is not brought up by bill of exceptions or otherwise. The only question is, whether the plaintiffs we...
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Action to rescind a certain agreement between plaintiff and defendant for the sale of land. Defendant demurred to the complaint, on several grounds; his demurrer was overruled, and defendant declining to answer, the court gave judgment for plaintiff. Defendant appeals from the judgment, by bill of exceptions. Plaintiff alleged ownership and possession of the land; that on June 30, 1898, plaintiff ...
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This appeal is taken by Clara F. Howes, executrix of the last will and testament of Felix C. Howes, deceased, from a decree settling the account of Fred C. Howes, as guardian of the estate of said Ralph G. Dow. The said guardian, April 15, 1899, filed his account, in which he states, in his affidavit to the same, that it "contains a full, true, and particular account of all my receipts and disburs...
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The action is in equity, to perpetually enjoin the enforcement of a judgment for $446.50 rendered by the superior court of Los Angeles County in a case entitled "I.A. Lothian v. Richardson-Kimball Co. et al.," in favor of plaintiff therein, appellant here, and against respondent here, one of the defendants in said action. The appeal is taken from the judgment in favor of plaintiff and from an orde...
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The defendants, by a grant deed of date November 17, 1890, conveyed to the plaintiff lots 11 and 12 of block 49 of Myers and McComber's addition to Oceanside, and another lot. The suit was brought for breach of the covenant against prior encumbrances, implied in the deed, whereby lots 11 and 12 were lost to the plaintiff. (Civ. Code, sec. 1113) The case was submitted on an agreed statement of the ...
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This appeal is taken from an order setting aside a default judgment. The question presented is, Was the default permaturely taken? Defendant was served with summons by publication. The order for publication provided: "It is ordered that service of the summons *Page 460 in this action be made upon the defendant . . . in the Pacific Bee, a newspaper published in said county of Sacramento; that such...
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The two appeals taken to this court in In the Matter of the Estate of Cudworth, Deceased, may be considered together. Both are prosecuted by the son, a devisee under the will. The one is from that part of the decree settling the final account of the executor, wherein he is allowed full commissions upon the amount of the estate accounted for by him. The other is from that part of the decree of f...
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This is an action upon a promissory note, brought the day before it would have been barred by the statute of limitations. The defense attempted is in the nature of a plea in abatement, that the note was secured by a mortgage, and only a suit to foreclose such mortgage can be maintained. The pleadings are verified, and the amended answer makes no denial sufficient to throw the burden of proof upon ...
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The suit is to recover money alleged to be due on a parol contract, the terms of which are set out in *Page 476 the complaint. The defense is a denial of the material allegations of the complaint, and as an affirmative defense, in effect, that, by a subsequent agreement, the contract was satisfied and discharged. The cause was tried by a jury, who returned a verdict for the plaintiff, and judgmen...
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This action was brought to foreclose liens upon the steamship City of Dawson, which was constructed at San Francisco in 1898, by the appellants, as owners. The complaint contains three causes of action. The first is for two hundred dollars, due plaintiff for services in the construction of the ship. The other two are upon assigned claims. One is a claim of Frank Green for services as chief enginee...
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The facts concerning this action and the law of the case will be found in the opinions of this court upon former appeals, reported in 101 Cal. 238, and 121 Cal. 240. This trial was without jury. The value of the property was stipulated. The court found against the plaintiff, and gave judgment for defendant for the return of the property, or its value, – six hundred dollars. Plaintiff appeals. The ...
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The plaintiff Wallace More is one of the heirs of A.P. More, deceased, his interest in the estate being one twenty-seventh of the whole, and of the value of ten thousand dollars. The plaintiff Louisa is his wife, and by virtue of a deed made to her by him, January 5, 1895, has succeeded to whatever interest he had in the estate at that date. The defendant Thomas More is the grantee in three severa...
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Appeal from judgment in favor of defendant and from order denying motion for a new trial. This action was brought by plaintiff, as assignee of the insolvent estate of Charles Bauer, who was adjudged insolvent under the Insolvent Act of March 26, 1895, for the purpose of recovering damages for the alleged wrongful conversion by defendant of certain counters, mirrors, desk, electric fixtures, kitche...
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This action was brought to forclose a mortgage, dated January 30, 1897, made by the defendant Kaeding to the plaintiff, Spitler, and defendant Kate S. Williams, to secure the payment of a promissory note of even date for the sum of two thousand five hundred dollars. The note was made payable to said Spitler and Kate S. Williams, and the mortgage to secure the same recites that "the interest of sai...
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This is a petition for a writ of mandate to the superior court to proceed to trial of an action by the petitioner against his wife to annul the marriage, upon the ground of fraud. The facts of the case are, that the defendant in the action referred to, after appearing therein, *Page 505 applied to the court for an order allowing her alimony and suit-money, and the court made an order requiring th...
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This action is brought in San Luis Obispo County, and is based upon several certificates of deposit issued by the County Bank of San Luis Obispo County. This bank is alleged to have been located, as to its principal place of business, in the county of San Luis Obispo, and the certificates of deposit are dated at San Luis Obispo, California, and provide for the repayment to plaintiff of the several...
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This action was brought to recover two thousand dollars, balance claimed to be due plaintiff upon a written contract for services in the development of certain mines, upon a contingent contract providing for such payment in case of the said mines being sold. Findings were filed, upon which judgment was entered for plaintiff. Appellants made a motion for a new trial, which was denied, and this a...
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Action to quiet title to a mining claim in Tuolumne County, called the Slap Jack Mine. The court found the following facts: That one Coyle, on January 1, 1896, made a location of the claim in question, posted notice of his claim at one end of the claim, marked out the boundaries, and placed monuments at each of the four corners and at each end of the lode, and caused his notice to be recorded. By ...
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Action to rescind an agreement for the sale of land. Plaintiff had judgment, from which and from the order denying his motion for a new trial defendant appeals. The land in question was part of a much larger tract belonging to one Vaughan, who had mortgaged it to plaintiff. Foreclosure suit was begun September 8, 1896, and the land was sold under decree on March 20, 1897, plaintiff becoming the pu...
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Appeal from order setting aside the whole of the estate to the widow of deceased. There is no question as to the value of the estate being less than fifteen hundred dollars, and that it was the duty of the court to set it aside to the widow. The principal question to be determined is as to which of the contending parties is the widow. A petition was filed by one Lydia, claiming to be Lydia Richard...
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This is an appeal by defendants from a final judgment of condemnation. The action was commenced in June, 1893, and, after a full hearing of the merits of the case, and a verdict of a jury establishing the compensation to be paid defendants, and findings of the court, an interlocutory judgment was rendered and entered on June 2, 1898, which determined all the issues in the case, and provided for a ...
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Defendant carried on a safe-deposit business. Plaintiff rented a safe in its deposit-vaults for the period of one year, and deposited therein a sum of money. Upon a subsequent visit to the vaults he discovered that $560 of his money had been abstracted. He has recovered judgment against defendant for that amount, and this appeal is taken from that judgment. The relation between these parties was t...
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This is an appeal by defendant from a judgment of the superior court of Sacramento County awarding plaintiff a writ of mandate and from an order denying defendant's motion for a new trial. Applications to purchase state lands were made to the register of the state land-office, respectively, by Mrs. Wrinkle and Samuel Levy. These applications were approved, and some two years thereafter, and pendin...
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Injunction. Plaintiff alleges in its complaint that it is, and for six years last past has been, the owner in possession, and entitled to the possession, of certain three quartz-mining claims situated in Siskiyou County, – to wit, The Ada, Flora Blanche, and Ohio; that the mines are contiguous, extending in the same direction, forming one continuous mining claim, four thousand five hundred feet in...
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This is an action for damages for personal injuries alleged to have been received in a collision between two trains. Plaintiff recovered a verdict of fourteen thousand dollars, and the appeal is by defendant from a refusal of a new trial. The collision was on the Coast Division, a little west of San Ardo station, between a pay train and a freight train. The latter was going north, or in railroad v...
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Plaintiffs, husband, and wife, allege that they were the owners of ten acres of land in the Ontario Colony, and the owners of ten shares of water stock of the San Antonio Water Company; that by virtue of their ownership of this water stock they were entitled, for use upon their land, to a certain amount of water, supplied by the San Antonio Water Company. This water was divided amongst the shareho...
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This is an action to quiet plaintiff's title to the right to the use, and a diversion through a ditch called the Mill Creek Zanja, of all the water of a natural stream called Mill Creek, and its tributaries. Judgment went for plaintiffs, and defendant Hannah S. Skinner appeals from an order denying her a motion for a new trial. Under our views of the case, it is not necessary to examine all of the...
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Plaintiff recovered judgment in the sum of four thousand five hundred dollars, damages for a breach of contract of marriage, and defendant has appealed *Page 572 from both the judgment and order denying his motion for a new trial. It is first contended that the evidence tending to show an agreement to marry is insufficient to support the verdict. The statement of the plaintiff was directly to the...
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I concur in the judgment, and in much of the opinion of Mr. Justice Henshaw. I do not, however, assent to that portion of the opinion in which it is held that upon the payment of the note to the bank by Mrs. Blair the obligation of the maker of the note was extinguished, nor to the construction given to section *Page 582 1473 of the Civil Code. That section is as follows: "Full performance of an o...
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This case is before us on a motion of respondent to dismiss the appeal taken by appellants from an order of the superior court, sitting in probate, settling the first annual account of the executrix. The motion is on the ground that no transcript on appeal has been filed within the forty days allowed by the rule of this court. It is admitted by appellants that the transcript has not been filed wit...
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Action to recover damages for personal injuries. At the conclusion of plaintiff's evidence the defendant moved for a nonsuit, its motion was granted, and from the judgment entered thereon the plaintiff has taken this appeal. Upon a former trial the plaintiff had a verdict and judgment, but that judgment was reversed, upon defendant's appeal, upon the ground that the court erred in denying defendan...
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This action was prosecuted to recover against the state a judgment for the amount of certain coupons detached from bonds issued under the act of May 3, 1852 (Stats. 1852, p. 59), and known as "the Indian war bonds." The act is entitled "An act authorizing the treasurer of the state to issue bonds for the payment of the expenses of the Mariposa, Second El Dorado, Utah, Los Angeles, Clear Lake, Klam...
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This is an action to have set aside and declared void two deeds executed by plaintiff to defendant, conveying to the latter a certain lot of land, and to quiet plaintiff's title thereto. Judgment went for defendant, and plaintiff appeals from an order denying his motion for a new trial. He also attempted to appeal from the judgment, but such attempted appeal was taken too late, and cannot be consi...
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This is a proceeding for a writ of mandate to require the respondent to determine the amount of a stay bond on an appeal from a judgment for the possession of land, rendered against the petitioner. The judgment was rendered in an action brought by Julius Baum, now deceased, against petitioner, and Edward Roper and Kate Roper, wife of said Edward Roper. Respondent's answer, which was admitted to be...
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The object of this action is to escheat to the state certain lands in San Joaquin County, alleged to be held by defendant, a corporation. The complaint alleges that the defendant acquired at trustee's sale, made pursuant to the provisions of a certain deed of trust, these lands; that more than five years have elapsed since defendant acquired title thereto, and said lands have not been sold. The su...
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Defendants, who are appellants, prosecute this appeal from the judgment and order denying their motion for a new trial. The plaintiff, as administrator of the estate of Thomas A. Yorba, deceased, brings this action against defendants, who are sureties upon the bond of Felipe *Page 615 Yorba, the former administrator of said estate, to recover money alleged to be due the estate from said former ad...
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Action to quiet title. Plaintiff had judgment, from which and from the order denying motion for new trial defendants appeal. Defendant Mattie S. Rickard claims title under deed of trust from her father, Dr. Richard H. McDonald, to her, June 27, 1891. She was at the time the wife of John C. Spencer, and had four children living, and they are still living. She had no other child. These children were...
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The defendant was convicted of the crime of burglary in the second degree, and appeals from the judgment. A motion was made in arrest of judgment, on the grounds that the information fails to show that the offense charged was committed in the county of Solano (where the information was filed) or in the state of California, and that the facts alleged do not constitute a public offense. The motion w...
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Appeal from judgment, on judgment roll. The sole question is as to whether or not the judgment is the legal conclusion from the facts found. The complaint alleges that defendant is indebted to plaintiff in the sum of five thousand dollars for legal services performed for defendant at its request, and that such services were reasonably worth said amount. The court found that in the month of August,...
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Appeal by the defendants from a judgment for plaintiff on demurrer to the complaint. The complaint alleges the ownership of certain land by the plaintiff, December 8, 1882, and the execution by him of a deed, of that date, to the defendants, and others now deceased, conveying to them, "as joint tenants, with right of survivorship as such, and not as tenants in common," etc., the land mentioned, "u...
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Appeal from a judgment for the defendants and from an order denying the plaintiff's motion for a new trial. The suit was brought for the conversion of certain gold and gold-bearing rock, of which, it is alleged in the complaint, the plaintiff was, on the day named, the "owner . . . and lawfully possessed," and which, it is alleged, the defendants "wrongfully and unlawfully, and against the will of...
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By stipulation of the parties, a motion to dismiss the appeal and the hearing on the merits of the appeal have been submitted together. The motion to dismiss the appeal is based upon the ground that the appellant's attorney is not the attorney of record in the case, but a member of the firm of attorneys who appeared in the court below as attorneys of record. There is nothing in the motion and no a...
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On June 6, 1897, three members of the fire department of the city and county of San Francisco were killed in the discharge of their duties. The defendant Hearst, proprietor of the San Francisco Examiner, contributed money to relieve the necessities and to support the dependent families and relatives of the dead firemen, and made appeal, through the columns of his paper, to the public of San Franc...
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The appeal is from a judgment for the defendants on demurrer to the complaint, the plaintiffs declining to amend. The suit was to quiet plaintiff's title to the west half of the northwest quarter of section 34, township 2 south, range 5 east, Mount Diablo base and meridian, situate in the county of San Joaquin; and to recover possession of the same. The plaintiffs deraign title, as to two thirds o...
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Plaintiff was the owner of a tract of land, and as security for the payment of a debt owing to the Sacramento Bank, she transferred the title thereof by deed of trust to Coleman and Hamilton as trustees. Having failed to satisfy the debt when due, the trustees sold the property to the bank, and a deed to it followed. The present action is brought to set aside the sale and cancel the deed, upon the...
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By petition for rehearing, defendants have vigorously attacked the soundness of the construction given by the court to the provisions of the promissory note here involved, wherein it was concluded that the note was due when the sale of the premises took place. Whether or not that con *667 struction be the true one, seems to be wholly immaterial. For, clearly, the interest provided for by the no...
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This action was brought to quiet plaintiff's title to a lot in the town of Auburn, 148 feet 10 inches long and 40 feet wide, being on the south side of Railroad Street, and fronting thereon 40 feet. The case was tried before the court, findings filed, and judgment entered thereon in favor of plaintiff. Defendant brings this appeal from the judgment and from an order denying his motion for a new tr...
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This is a suit in ejectment to recover a strip of land extending from Ninth to Eighteenth streets, in the city of San Francisco, covering a part of what was formerly the bed of Mission Creek. Judgment was entered in favor of the city, against numerous defendants holding or claiming different parcels of the tract, but this appeal is prosecuted by only two of them, – Eugene and Georges Le Roy, – fro...
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The Woodbridge Canal and Irrigation Company, a corporation, being indebted to the plaintiff in the sum of $3,280, on July 28, 1894, executed to the plaintiff its promissory note for that amount, and, to secure the same, at the same time executed its mortgage upon a tract of land in San Joaquin County, and also, at the same time, as further security, indorsed and assigned to the plaintiff the note ...
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Action by the widow of Louis N. Marshall to recover from defendant a sum claimed to be due upon a certificate issued by defendant to said Marshall in his lifetime, in which his wife, Emily, was named as beneficiary. The defense set up is, that, at the time of his death, Marshall was not a member of the defendant, in good standing, and was not entitled to participate in its beneficiary fund, out of...
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The action is in the nature of ejectment, brought to recover a portion of the south half of the northwest *Page 3 quarter of section 25, township 13 north, range 6 east, Mount Diablo base and meridan, the land being situate in Placer County. The plaintiff deraigns title to the land in question under a deed dated July 26, 1887, from the Central Pacific Railroad Company, which company, it was admit...
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On the fifth day of February, 1890, the North Riverside Land and Water Company was the owner of the portion of the canal in question here, from the source of the same in the Rancho San Bernardino down to the west line of the Rubidoux Rancho, and on that day conveyed the same to the Stearns Ranchos Company. The deed of conveyance contained the following reservation: "Hereby specially reserving, how...
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Defendant has been convicted of the crime of arson, and prosecutes this appeal from the judgment, order denying his motion for a new trial, and order refusing an arrest of judgment. The case has been before the court upon a previous occasion.(People v. Mooney, 127 Cal. 339.) At that time this court declared the information fatally defective, and reversed the judgment and orders appealed from, and ...
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Action upon a policy of fire insurance. The plaintiff's right of recovery depends upon the construction to be given to the following clause in the policy: "This entire policy, unless otherwise provided by agreement indorsed hereon or added hereto, shall be void, . . . . if, with the knowledge of the insured, foreclosure proceedings be commenced, or notice given of sale of any property covered by t...
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Plaintiff brings the action to compel defendants to convey to plaintiff certain real estate, title to which is alleged to be held by them as trustees of the persons interested in the estate of John Carey, deceased. The court gave judgment for plaintiff, that defendants pay to plaintiff the sum of $3,509.25, failing in which, that the land described in the complaint be sold and said amount be paid ...
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Defendant was charged with the murder of one Charles McLaughlin, and was convicted of murder in the second degree, and appeals from the judgment and from an order denying his motion for a new trial. The principal features of the case are these: At about 6:30 o'clock of the morning of December 26, 1899, the appellant, the deceased, and one Gleason were engaged in playing poker in a card-room adjoin...
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—In the memorandum of costs filed by interveners is the item, “To reporter’s fees, $114.87.” Defendants made a motion to strike, from this item $92.37, upon the ground that the amount was for reporter’s fees for transcribing the evidence for the use of interveners, and that no order was ever made by the court authorizing the evidence to be transcribed. The court made an order denying the motion, ...
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Defendant has been convicted of the crime of extortion, and appeals to this court. By the indictment it was alleged that defendant obtained thirty dollars from one Greenwald under fear induced by threats upon the part of defendant to accuse him (Greenwald) of the "crime of having, in violation of the laws of the United States of America, sold and delivered cigars in a form other than in a new box ...
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The petitioner, having been convicted of the crime of perjury in the superior court of Butte County, took an appeal to this court, where the judgment was affirmed. Pending his appeal he remained in the custody of the sheriff of Butte County, confined in the county jail, *Page 41 in pursuance of the order of the superior judge certifying that there was probable cause for his appeal. After the affi...
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This is an action in ejectment; the case was tried before the court without a jury; the plaintiff had judgment, from which, and from an order denying them *Page 44 a new trial, the defendants appeal. The subject of the suit is a lot on the southeast corner of Turk Street and Van Ness Avenue, in the city of San Francisco, and fronting 50 feet on said avenue and 109 feet on said street. 1. The appe...
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This is an action to recover $26,160.92, alleged to have been deposited with defendants by plaintiffs' testate, Horace Gasquet. Defendants answered, that they had for two years preceding the death of Mr. Gasquet been acting as his banker, under an agreement "to receive deposits from him, to pay out moneys to him or upon his order, and to allow him interest upon deposits at the rate of four per cen...
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Action to quiet title to certain four mining claims, and for an injunction. Plaintiff had judgment. The appeal is from an order denying defendant's motion for a new trial. The verified complaint alleged ownership and right of possession of the mining locations in question for more than five years prior thereto; that defendants entered upon the property on January 1, 1899, and thereafter extracted ...
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Plaintiff, assignee of Charles J. Simon, brought the action against defendants for services rendered and commisisons earned by said Simon under the following contract: – SAN FRANCISCO, June 16, 1894. "In consideration of Mr. Charles J. Simon assisting our distributing agents, Messrs. Adelsdorfer and Brandenstein, to make a success of our line of cigars in San Francisco and other territories allowe...
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The above cause was tried by the court without a jury, and upon the findings of fact made by it, judgment was rendered in favor of the plaintiff. The defendant *Page 74 afterwards moved for and obtained an order granting a new trial. From this order the plaintiff has appealed. In defendant's notice of motion it designated as the grounds upon which the motion would be made, "insufficiency of the e...
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—This action was brought to recover taxes paid by plaintiffs under protest. The county of Mariposa appeals from the judgment rendered. These taxes were paid upon an arbitrary assessment made by the assessor; and it is conceded by plaintiffs that the only point involved in this appeal rests upon the fact as to whether or not they neglected or refused to furnish the assessor the statement of re...
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The action is in ejectment, and was begun September 28, 1897. On the trial before the court without a jury, plaintiff had judgment, from which and from an order denying him a new trial the defendant appeals. The plaintiffs claims ownership, subject to the paramount title of the government, in the whole of the south half of the northwest quarter and lots 2 and 3 of section 33, township 44 north, ra...
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Appeal from an order and judgment dismissing the action, and from an order denying appellant's motion to vacate the judgment of dismissal. Appellant, the Siskiyou County Bank, commenced an action against Perry Hoyt and Elizabeth Hoyt on October 5, 1895, to foreclose a mortgage executed by them to the bank on October 6, 1891. A summons was issued one day before the expiration of a year after the fi...
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Action on a life insurance policy. Judgment was for plaintiff in the court below, and from the judgment defendant appealed. The respondent is a resident of California, where this action was commenced, and the appellant is a resident of the state of New York. The defense is rather a remarkable one; it rests upon a decree of divorce rendered by a court of the Republic of Hawaii in an action brought ...
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An information was filed against the defendant, charging him with the crime of burglary, and also including a prior conviction of the crime of murder in the second degree. Upon this information he was tried, and, after conviction, sentenced to imprisonment in the state prison for the term of his natural life. At the trial, the defendant, having exercised ten peremptory challenges, claimed the righ...
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The suit was brought by the plaintiff, as assignee of Gonsales, to recover the sum of $14,066.91 and interest, alleged to be due on a promissory note made to the latter *Page 97 by the defendant. The answer denies the execution of the note, and also alleges a lack or failure of consideration to the extent of four thousand dollars. The judgment was in favor of the plaintiff for the balance due on ...
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This appeal is taken from an order allowing a guardian to sell real estate which formerly belonged to the ward. Prior to the application for the order the ward had died, being at the time over the age of majority. After her death the guardian filed her accounts, and upon the settlement thereof it was found and decreed by the court that the estate of the ward was indebted to her in a considerable s...
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Defendants were the owners of a certain tract of marsh and tide land under patents from the state of California. A navigable stream known as Salt River bordered this land upon one side. Certain tributaries of this river, designated as sloughs, penetrated these lands of defendants in various directions. The water in these sloughs came from the ocean by way of Salt River, and rose and fell with the ...
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This action was brought to recover judgment for the cancellation of certain promissory notes made by plaintiff to defendant Kehl, and for the delivery by said defendant to plaintiff of certain shares of stock given to secure said notes, and for damages for certain alleged wrongs. The action is founded on alleged false representations made to plaintiff by defendant Kehl as to certain water rights ...
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This appeal is taken by the executor from an order settling his account. He was a joint executor with one Hardin, and upon the settlement of their final account he was allowed one half of the commissions to which executors are entitled by the law. He now claims that he did *Page 114 nearly all of the work in the administration of the estate, and for that reason was entitled to a greater share of ...
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Action to quiet title. The case was tried before the court, findings filed, and judgment entered for defendants. Plaintiff made a motion for a new trial, and this appeal is from the order denying the motion. The complaint alleges that the plaintiff is the owner, and seised in fee, and entitled to the possession, of lots numbered 1 and 2, the southwest quarter of the northwest quarter and the north...
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Action by plaintiff against the sheriff of Los Angeles County, and his official bondsmen, for neglect of duty in refusing to serve a writ of attachment in an action by the present plaintiff against one Thomas. Plaintiff had judgment, from which defendants appeal. In the action – Ayres v. Thomas – which was commenced October 24, 1894, a writ of attachment was duly issued by the clerk on proper affi...
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Action for the foreclosure of a mortgage. The appellants executed a mortgage upon certain real property, to secure the payment of certain promissory notes which were set forth therein, and thereafter the mortgagee executed to the plaintiffs herein an instrument by which he assigned to them "those certain mortgages and credits more particularly described as follows, to wit, . . .; also, a mortgage ...
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Action in unlawful detainer. The cause was tried before a jury, and a verdict rendered for plaintiff. Upon this verdict judgment was entered, and defendant Lambie brings this appeal from the judgment and from an order denying his motion for a new trial. No point is urged against the judgment. No error is claimed as to the instructions of the court to the jury, but certain alleged errors of law are...
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The defendant, having been convicted of the crime of embezzlement, appeals from the judgment of the superior court and from five separate orders made after judgment. The several notices of appeal were served more than a year after the rendition of the judgment, and the question arises, whether we have any jurisdiction of the appeal therefrom. In civil cases it seems to have been settled that this ...
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—This is a proceeding by habeas corpus, in behalf of the defendant in the case of The People v. George Walker, just decided. The facts developed at the hearing in this case differ in some particulars from those shown by the record in the appeal. In his petition the prisoner alleged that he was unlawfully detained in the custody of the sheriff of San Francisco, upon the sole authority of a...
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On the second day of October, 1885, the defendant Moulton, who was then the owner of and in possession of the real property in controversy, executed and delivered to the plaintiff a certain instrument in writing, purporting on its face to be a deed of grant, bargain, and sale. The consideration expressed was $1,500, and the instrument recited that it was made subject to a deed of trust executed by...
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Action to foreclose a street-assessment lien. Defendants had judgment, from which and from the order denying motion for new trial they appeal. It was admitted at the trial that the assessment, warrant, diagram, and certificate were all in due form, and that they constituted a prima facie case for plaintiffs, who are assignees of one C.F. Cormack, the contractor. The work ordered was for paving and...
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[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 156 This appeal is from the judgment. The findings are not attacked, and the only question that need be decided is as to whether or not appellant is entitled to judgment for the amount found to be due from the plaintiff. The case has been here before(McDougal...
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— Suit to revoke a gift causa mortis. The plaintiff appeals from the judgment upon the judgment rolL *165 The property which is involved in the action, and which was the subject oí the gift, consisted of a note and mortgage of the value of nine hundred dollars, and household furniture, and some jewelry, watches, wearing-apparel, etc., of the value of four hundred dollars, constituting togethe...
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Action for the value of certain bridge piers and abutments, alleged to have been taken from plaintiff by defendant and used in the construction of a new bridge thereon. Defendant had judgment on motion for nonsuit, from which plaintiff appeals. On March 9, 1879, the board of supervisors of Tuolumne County authorized one Starbird, one Smith, and plaintiff to maintain a toll-bridge for the period of...
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—Appeal from the decree of final distribu-, tion. In the ninth paragraph of her will, executed in 1892, the testatrix disposed of. the residue of her estate to her six children (naming them), share and share alike, and at the close of this paragraph made the following statement: — “ I declare that I have heretofore loaned to my son Albert Tompkins the sum and amount of four thousand d...
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—This was a suit for an injunction to restrain the defendants from stopping the flow of plaintiffs’ water in the North Riverside and Jurupa Canal, or depriving the plaintiffs of the enjoyment of their easement therein. A temporary injunction was granted as prayed for, and after the trial the injunction was made permanent, “ provided, however, that said defendant I. D. Rogers may, at any time he m...
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[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 184 [EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 185 The last will and testament of the above-named decedent, bearing date October 17, 1897, and a codicil thereto ...
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This is an appeal from a judgment foreclosing a mortgage. The appeal is by the defendant Sinsheimer, to whom, subsequently to the execution of the mortgage, and before the commencement of the suit, an undivided half of the mortgaged premises was conveyed by the mortgagors, *Page 196 the defendants Keeton. The mortgage and the note secured by it were executed January 1, 1891, and became due two ye...
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Respondent asks that the appeal herein be dismissed because the transcript fail to show that an undertaking on appeal in due form was properly filed. Respondent's brief was served and filed in September, 1899. Appellant has not suggested any diminution of the record nor offered to supply any proof as to the filing of an undertaking. The Code of Civil Procedure provides (sec. 940) that "the appeal ...
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The appellant was convicted of murder in the first degree, and sentenced to life imprisonment; and he appeals from the judgment and from an order denying a motion for a new trial. 1. The main point made by appellant for a reversal is, that the court erred in denying his motion to set aside the indictment, made under section 995 of the Penal Code, upon the ground that a person not mentioned in sect...
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—The plaintiff and the interveners appeal from an order denying them a new trial. The plaintiff Yarwood and three several intervening plaintiffs, each in a several complaint, allege ownership of one or more lots of the “ Rancho Providencia and Scott tract as resurveyed,” etc., situated in Los Angeles County. In their several complaints, said plaintiffs further allege that a certain stream or wa...
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The suit was brought to recover of the defendant liquidated damages – amounting to thirteen hundred dollars – alleged to be due under the provisions of section 629 of the Civil Code, for refusal to furnish gas to the plaintiff. The judgment was for the defendant, and the plaintiff appeals. The provision of the code in question is, that, "upon the application, in writing, of the owner or occupant o...
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The estate of P.C. Lynch, an intestate, was distributed, – to the widow, Mary Lynch, appellant here, fifteen twentieths as survivor of the community, and statutory heir at law, and remaining five twentieths to certain collateral distributees, – to wit, two brothers and one sister, all *Page 215 of the half blood, and to two sets of children, being the children of a deceased brother of the full bl...
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Ejectment to recover possession of certain lands alleged to be tide-lands of the Bay of San Deigo, and for damages for withholding possession thereof. The defendant demurred to the complaint, and the demurrer was overruled. Defendant failed to answer, and judgment was entered for plaintiff for possession of the land, and from that judgment the defendant appeals. *Page 219 In addition to the demur...
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Appeal from a judgment for the defendant and from an order denying a new trial. The suit was for libel, published in the defendant's newspaper, reflecting on the plaintiff as one of the board of trustees of the town of Los Gatos. The article complained of is as follows: – "RING, RING, RING. "Mr. Editor, – With permission to encroach on your valuable space, I would state to t...
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Defendant has been convicted of the crime of murder, and prosecutes this appeal. The charge of the court given to the jury upon the law contained declarations which were held to be unsound in People v. Vereneseneckockockhoff, 129 Cal. 497. In view of the decision in that case, the attorney-general concedes that the judgment should be reversed and the cause remanded to the trial court for further p...
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Action to condemn a strip of land as and for an alley. Certain issues were tried by a jury, and plaintiff had the verdict, and judgment was rendered accordingly. The appeal is from the judgment, from an order striking out certain portions of defendant's answer, and from the final order of condemnation, and from the order denying defendant's motion for a new trial. A general demurrer to the complai...
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The questions involved in this appeal are, – 1. Whether a railroad right of way is such a public use as to prevent the running of the statute of limitations, or the acquisition of an adverse title thereto by prescription; 2. In case of intrusion upon such right of way, is ejectment the proper remedy? *Page 241 Respondent Hyatt entered upon, and occupied for more than five years prior to the comme...
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Action to restrain the sale of certain land under decree of foreclosure. Defendant had judgment, from which and from the order denying motion for new trial this appeal is taken. Plaintiffs are husband and wife. J.M. McNamara, being the owner of the land in question, executed a mortgage thereof to defendant's assignor, in which his wife did not join, and McNamara failing to pay the debt secured the...
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Motion to dismiss the appeal of the intervener for failure to serve all of the adverse parties. The plaintiff brought this action to recover from the defendant Kate C. Byrne the amount due upon certain promissory notes executed by her, and that the defendant Florence Blythe Hinckley be directed to pay the said judgment out of certain moneys owing by her to said Byrne. Issues were joined upon this ...
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—Motion to dismiss the appeal, upon the ground that it was taken after the time allowed by law. The judgment appealed from was entered February 26,1900. and the order denying a new trial was entered in the minutes of the court, November 16,1900. The notice of appeal therefrom was filed January 16, 1901, more than six months after the entry of the judgment, and more than sixty days after the ent...
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On September 2, 1895, George N. Green was struck by a locomotive of the defendant and instantly killed. His widow and children have brought the present *Page 255 action to recover damages therefor, alleging that his death was caused by reason of the negligence of the defendant. The case was tried by a jury, and a verdict given in favor of the plaintiff for the sum of nine thousand dollars. The de...
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—This is a motion to dismiss the appeal of Bridget Degnan, based upon her own affidavit and the supporting affidavits of others, and pressed before the court by respondent’s attorneys. It -may be conceded that the regular, orderly, and courteous method of procedure would have been for the client to give notice to her own attorney of her desire that her appeal should be dismissed, and in the event...
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This is an appeal from a judgment of conviction upon a charge of forgery. The facts sufficient for an understanding of the matters of law here presented for consideration will be found in the former appeal of People v. Bird, 124 Cal. 33. Upon the trial of this cause, a witness, – Grove, the teller of the bank, – who had paid the money on the check presented by defendant, was admitted to be dead. H...
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When this case was in Department an opinion was prepared and submitted by the Commissioners, and after oral argument in Bank, and full consideration of the case, we are satisfied with that opinion and the conclusion therein reached. The opinion is as follows –...
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The action is for the balance of the unpaid purchase price for certain tracts of land in San Bernardino County, and to foreclose the right of the defendant *Page 279 therein. The complaint contains two counts, each declaring upon a separate contract for a separate tract of land. Judgment went for the plaintiff as to the first count, and in favor of the defendant as to the second. The appeal is ta...
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Appeal from a judgment for the defendant on demurrer to the complaint. The suit was brought to determine the right of the defendant to the office of sheriff of Santa Barbara County, which it is alleged he had usurped, and to establish the right of the relator to the same office. (Code Civ. Proc., sec. 805.) Briefly stated, the case as alleged *Page 284 is as follows: The relator and the defendant...
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— Foreclosure. Plaintiff had judgment on the verified pleadings, from which defendant Etchepare alone appeals. The complaint is in the ordinary form, for foreclosure of a certain mortgage executed by defendant Etchepare, on February 12,1895, to secure the payment of a certain promissory note made by him to plaintiff on that date. Mrs. Leonis and Wilkerson were made parties defendant, as claiming ...
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The present action was brought against the defendant by the attorney-general, under section 803 of the Code of Civil Procedure, charging it with the usurpation and unlawful exercise of the powers of a legally organized irrigation district, and asking a judgment declaring that the proceedings under which it claimed to have been organized were illegal and void, and that its powers and franchise be f...
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This is an action to recover from a subordinate lodge of the Knights of Pythias an amount represented by an accrual of weekly sick-benefits. The action is brought by the administratrix of the estate of William A. Berlin, deceased. Berlin was a member of the order, and entitled to weekly sick-benefits by reason of certain by-laws. For a great many months he had been paid these sick-benefits. Therea...
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This action was brought to have the defendant move off a pipe-line which he had laid in an old ditch extending across the mining claim belonging to plaintiff. The Tuolumne County Water Company for many years past has been the owner of the water-ditch crossing said plaintiff's mining claim, conveying water therein for sale for mining and irrigation purposes. Defendant is the owner of a tract of agr...
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[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 303 The defendant was convicted of embezzling eight thousand dollars, public money in his hands as tax-collector of San Luis Obispo County, and sentenced to eight years in the state prison. He appeals from the judgment of conviction. We will consider the poin...
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Appeal from order appointing administrator. William Dow died intestate, in San Mateo County, in 1882, being a resident of said county at the time of his death, and leaving estate therein. He left, surviving him, his wife, Maggie J. Dow, and a son, James J. Dow. Before any steps were taken to administer upon the estate, the widow married one Sullivan. Petitions were filed for letters by the son, Ja...
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This action was brought by plaintiffs for the purpose of having it adjudged that they are the owners of the right to take and divert, at the point described in the complaint, the waters of the Mojave River to the extent of six hundred inches, measured under a four-inch pressure, and that defendants have no right, title, or interest to said six hundred inches. The defendants, by their different ans...
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The plaintiffs had judgment in the court below for the recovery of the possession of the personal property described in the complaint, or for the sum of $350, the value thereof, and $100 as damages and costs. The defendants appeal from the judgment and from an order denying a new trial. The grounds urged for reversal are, insufficiency of the complaint; misjoinder of causes of action; insufficienc...
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Action for neglect of professional duty as attorney for plaintiff. Defendant had judgment on motion for nonsuit, from which and from the order denying his motion for a new trial plaintiff appeals. Defendant was the attorney for plaintiff in an action against one Robert Thompson, against whom plaintiff recovered *Page 321 judgment for $879.99, on May 18, 1891. The lien of this judgment expired May...
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—Motion to dismiss the appeal. The superior court granted an injunction in the above-entitled cause, January 8, 1900, restraining the defendant from doing certain acts therein specified, and on January 12, 1901, the Hon. F. J. Murasky, judge of said court, signed a written instrument, wherein, after reciting the granting of the injunction, and that more than twelve months had elapsed since it was...
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This appeal is from a judgment declaring the relator, Murphy, county auditor of Santa Clara County. At the general election held in November, 1898, one Veuve was elected county auditor of Santa Clara County for the ensuing term. On August 6, 1900, Veuve having died, and the office being vacant, the defendant was duly appointed by the board of supervisors to fill such vacancy, and qualified and ent...
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The plaintiff brought this action to condemn the lands described in the complaint for the purpose of constructing head-works for its domestic water-supply. Such proceedings were had that a judgment of condemnation was made and entered in April, 1896, in favor of plaintiffs, and awarding defendants the sum of twenty-five thousand dollars as damages for the land. Upon the appeal this judgment was af...
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— The parties hereto entered into a written agreement, July 21,1897, wherein, after reciting, among other matters, that the plaintiff was the owner of the right to use certain patents in the state of California, and was also the owner of a one-half interest in a dredging-machine, the defendant agreed that if it should secure from the United States government a certain contract for dredging at Mar...
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—The prisoner was convicted of the crime of assault with intent to commit murder, and on the 19th of July, 1890, was sentenced to be imprisoned at' Folsom for a term of ten years. Subsequently, on the seventh day of August, 1890, he was found guilty of burglary in the second degree, and on the ninth day of the same month was sentenced to be imprisoned at Folsom for a term of five years, “ to comm...
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This appeal is from an order denying a motion made by plaintiff to dismiss the defendant's motion for a new trial. On the 16th of January, 1895, the court made and caused to be entered a final judgment dissolving the bonds of matrimony existing between plaintiff and defendant, upon the ground of defendant's extreme cruelty. This judgment awarded defendant $250 for alimony and $200 for attorney's f...
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The plaintiffs, taxpayers of National City, brought this action against said city, and Samuel W. Smith *Page 355 as city marshal, and also against the city clerk and treasurer, to enjoin them from paying said city marshal the sum of twenty-five dollars per month, that being the salary fixed by a certain ordinance which plaintiffs contend increased the salary of the marshal after his term of offic...
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This appeal is taken from an order granting plaintiff a new trial. The case has once been before the court. (Hearne v. DeYoung, 119 Cal. 670.) It is an action for damages, based upon an alleged libelous publication in defendant. De Young's newspaper. Upon the return of the case to the lower court for a second trial, the complaint was amended, thereby counting alone upon that portion of the publish...
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This is an action for damages by the parents, based upon the death of a son, alleged to have been caused by the negligence of defendant. The facts of the case are of the most meager character. Upon a dark and foggy morning, about half-past five o'clock, the mutilated dead body of this young man a total stranger in the village, was found lying upon a side-track in the railroad yards of defendant at...
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The defendant appeals from a judgment convicting him of the crime of seduction under promise of marriage and from an order denying his motion for a new trial. 1. In a case of this kind, it is worse than useless for counsel to address long arguments to this court on mere questions of fact. The prosecutrix testified to every fact necessary to establish defendant's guilt as charged. The jurors were t...
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This is an appeal from a judgment of the superior court in and for the city and county of San Francisco sustaining the demurrer to a complaint filed by a taxpayer in a proceeding to enjoin the board of supervisors and the mayor of said city and county from taking any further action, in pursuance of certain proceedings previously inaugurated, and having for their object the issuance of bonds of sai...
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This case, in all essential particulars, is the same as Fritzv. San Francisco, ante, p. 373. By the facts disclosed upon this appeal there is no question whatever but that the bonded indebtedness is to be created for the purpose of acquiring "permanent municipal buildings *Page 382 and improvements." Schoolhouses, sewers, etc., come directly within that classification. This being so, the act term...
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Action to recover damages for personal injuries. Plaintiff recovered a verdict, and judgment was entered thereon. Appellants made a motion for a new trial, which was denied, and this appeal is from the judgment and order denying the motion. The appellants were the owners of a three-story brick building on the east side of Sutter Street in the city of Stockton. The sidewalk in front of said buildin...
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Plaintiff recovered judgment on a promissory note. This is an appeal from the judgment and from an order denying appellant's motion for a new trial. The principal contention of appellant is, that the finding that the promissory note was signed by her for a sufficient consideration is not supported by the evidence. The facts in connection with the matter are substantially as follows: In 1889 the de...
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This is an appeal by the contestants of the will of Mary A. Black, deceased, from a judgment probating said will and from an order denying their motion for a new trial. As to the contention that the evidence did not justify the verdict, waiving the technical point made by respondent, it is enough to say that the evidence largely preponderates in favor of the findings of the jury. Appellants' main ...
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This is an appeal from an order denying defendant’s motion for a new trial. A separate appeal from the judgment was considered by this court, and the judgment affirmed, February 7, 1900. The first point made by the appellant is that the complaint states no cause of action; but in the opinion on affirmance of the judgment it is held that the complaint does state a cause of action sufficient to s...
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This action is, in a measure, a companion of Wolfskill v.Douglas, ante, p. 397, and much of the testimony taken was used in both actions. The appeal is from the judgment in favor of the plaintiff, and also from an order denying defendant's motion for a new trial. The judgment was rendered July 19, 1895, and the order denying a new trial, July 6, 1899; the notice of appeal was filed July 17, 1899. ...
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At her death, deceased was a resident of Pennsylvania, and left a will, in which she appointed "Adam Keller, of Carlisle, Pa.," as executor. This will was duly probated in said state. As shown by the findings in this matter, J.W. Coan was the son and Mrs. Catherine Eubank was the daughter of deceased. Both of them were residents of California, and both entitled to succeed to a portion of the perso...
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Action to quiet title to a mining claim. The defendant is in possession of the property, and the plaintiff alleges ownership and right of possession in himself. *Page 405 The defendant denies the plaintiff's allegations, and alleges his own ownership, setting forth, also, his location of the claim under the laws of the United States. The cause was tried by the court, and findings of fact made by ...
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This action was brought to restrain the appellants from prosecuting about five hundred suits, which it was alleged in the complaint they had already commenced, and also from bringing any other actions based on claims for penalties of two hundred dollars each, which they claimed were due them by reason of alleged violations by the respondent of the provisions of section 490 of the Civil Code. It is...
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Appeal from a judgment for foreclosure of mortgaged premises and from an order denying defendant's motion for a new trial. The original complaint counted on a promissory note made *Page 423 by the defendant to one Speyer, March 14, 1894, payable six months after date, and assigned to plaintiff. It was filed September 12, 1898, two days before the lapse of four years from the maturity of the note....
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— Appellant was convicted of grand larceny, and appeals from the judgment and from an order of the court denying a motion for a new trial. The position that the evidence did not justify the verdict is untenable. The evidence was circumstantial, but it tended *431 strongly to show appellant’s guilt, and there is no ground for holding that as matter of law it was insufficient to support the ver...
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dissenting.—I am unable to concur with my associates in the conclusion they have reached. If the issues tendered by the plaintiff had been tried, and found in favor of the defendant, and judgment entered accordingly, defendant would have had all the relief which he could get under the allegations of his answer. The judgment in either case would have been only an estoppel, and would, as a matter, ...
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The only question presented in this case is, whether the consolidated municipal government called the city and county of San Francisco can, through its civil service commission, prescribe the qualifications of deputies of certain county officers, such as sheriff, county clerk, recorder, etc., and compel those officers to select their deputies from persons named by said commission. The court below ...
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—This case differs materially from the case of Crowley v. Freud, ante, p. 440, although, the two cases were argued and submitted at the same time, and both involve powers of the civil service commission created by the present charter of the city and county of San Francisco. This action was brought to enjoin the defendant, Wells, who is auditor of said city and county, from drawing any warra...
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Appeal from a judgment foreclosing the mortgage of the defendant's testatrix. The action was commenced August 13, 1896, and summons was issued therein June 25, 1897. The mortgagor died September 27, 1897, before any service of the summons was made. The defendant herein was appointed executrix of the last will and testament of said mortgagor, and on December 1, 1897, letters testamentary thereon we...
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This appeal is taken from a judgment rendered upon the pleadings. Plaintiff and E.L.G. Steele entered into a contract pertaining to the care and proceeds of certain live-stock, which contract was to be continued in force for the period of four years. Two years thereafter, Steele died, and the contract was presented to the executrix of his estate as a contingent claim. The claim was rejected, where...
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Action to quiet title. Sheehy alone answered, and is the sole defendant. The court adjudged that plaintiff Mary D. Chalmers and defendant James Sheehy were owners, as tenants in common, of an equal undivided one-half interest in and to the premises in controversy, and that plaintiff Ella T. Chalmers had no interest therein. Plaintiffs appeal from the order denying their motion for a new trial on a...
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This was an action to quiet title. Defendant answered, denying the title of plaintiff to the property in controversy, and then, "for a further and separate answer and defense to said cause of action set out in plaintiff's complaint," alleged fraud in the procurement of plaintiff's deed. At the conclusion of the evidence offered by plaintiff upon the trial, defendant moved for a nonsuit, urging, as...
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Defendant has been convicted of the crime of murder in the first degree, with the death penalty affixed. He now appeals from the judgment and order denying his motion for a new trial. The evidence showing that defendant fired the fatal shot is uncontradicted, and insanity is relied upon as a defense. Some claim is made by counsel that the evidence on the subject of defendant's insanity is such as ...
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Action for divorce on the ground of extreme cruelty. The court found that defendant "treated the plaintiff in a cruel and inhuman manner, inflicting on her great bodily injury and mental suffering, striking her and otherwise physically abusing her." The fourth finding is, "that, after the commission of the said acts of cruelty, the *Page 474 plaintiff forgave the said defendant, and condoned the ...
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—Plaintiff sues to recover damages for personal injuries received through the alleged negligence of defendant in employing an unfit fellow-servant. The cause was tried by a jury, and at the close of plaintiff’s evidence upon the issue of defendant’s liability, the court granted defendant’s motion for a nonsuit, and entered judgment accordingly, from which plaintiff appeals. The complaint allege...
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An instrument dated February 16, 1894, purporting to be the promissory note of the Boyle Mining Company (a corporation) for three thousand dollars, besides interest, payable ninety days after date, to the order of G.W. Osborn and Alfred Gonzalez, was by the said payees, on the date of said note, duly indorsed to Wells, Fargo Co.'s Bank (a corporation). After the said note was due, by its terms, G...
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Defendant appeals from a judgment and order denying his motion for a new trial. His principal contention is, that the jury which convicted him was improperly selected; and with this contention the court agrees. For present purposes it will be assumed that there was a regular panel of jurors present in department 2 of the court for the purpose of trying the defendant. When the impanelment of the ju...
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Appeal from order denying motion to set aside sale under a decree of foreclosure. The mortgage to plaintiff described as part of the premises mortgaged the following: "The northeast quarter of the southwest quarter of section 33, in township 13 south, of range 21 east, Mount Diablo base and meridian, together with one fourth of one cubic foot of water from the Fresno Canal and Irrigation Company's...
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Action to foreclose mechanic's liens in favor of the several plaintiffs, who had judgment foreclosing each of their several liens, and defendants Esther Attell and Seymour Attell appeal from the judgment and from an order denying a new trial. Hayes did not answer. Esther Attell is, and was, the owner of a house and lot in the city of San Francisco, and on November 21, 1896, entered into a written ...
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This is an appeal by the people from an order of the court directing the jury to find a verdict for defendant. The indictment charged the defendant with the crime of forgery, in uttering and passing a certain false and fictitious note, dated April 28, 1897, purporting to have been made by one R.J. McIntyre to one Eddie Bunney for $260, gold coin, payable one year after date. In proof the prosecuti...
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Upon the hearing of this case in Department One, the following opinion was therein rendered, to wit: – *Page 503 "This is an action in ejectment. In addition to the answers of defendants, the defendant Manuel S. De Cambra filed a cross-complaint. A demurrer to this cross-complaint having been sustained, the action was tried upon the complaint and the answers thereto in the nature of denials. The ...
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This is an appeal from an order dismissing the action as to respondent. The summons was issued October 26, 1895, but was not served until February 6th, nor returned until February 17, 1900. On the last-named day the respondent not having appeared or answered, her default was entered. On March 12, 1900, upon motion of respondent's counsel, the court made an order dismissing the action as to her, up...
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In February, 1895, S.L. Vance was appointed administrator of the estate of his deceased wife, Eliza M. Vance, but died before any accounting had. For the purpose of having his account as administrator of the said estate settled, the plaintiff, as administratrix on his estate, brought this action, in the nature of a suit in equity, against Bertha A. Smith, the daughter of his deceased wife, Eliza M...
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Ejectment. Defendants had judgment, from which and from the order denying motion for new trial plaintiff appeals. 1. Plaintiff claims title to the lot in question by virtue of a deed from the tax-collector of the city and county of San Francisco for delinquent taxes, under the act for the widening of Dupont Street, in San Francisco, approved March 23, 1876. (Stats. 1876, p. 433.) The deed was admi...
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This action was brought by plaintiff, as a stockholder of the Porter Land and Water Company, a corporation, for the purpose of annulling a certain resolution passed by the board of directors of said corporation, and of recovering of defendant Porter $46,650 and interest thereon, the said sum having been paid to Porter under the authority of the board of directors and by virtue of said resolution. ...
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[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 525 This is an appeal from a decree of partial distribution. Upon the former decision of this case, Mr. Justice McFarland rendered the following opinion, which is now adopted as the opinion of the court upon the questions therein discussed: – "It seems to be ...
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—The appeals in this case are taken in an action brought by Charles L. Fair prior to the admission of the will of James G. Fair to probate, against Angus, Crothers, and Goo dfellow individually, and as trustees named in the will, to determine an adverse claim by them to the Lick House property, in San Francisco. Plaintiff made his sisters defendants, under an allegation that he could not obtain t...
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The action was brought to foreclose a mortgage executed by the defendant company to one Peter H. Taylor, to secure the payment of two promissory notes of even date, for ten thousand dollars each. The notes were made by the defendant company to said Taylor, in part payment of the purchase price of certain lands and water rights in the San Dimas Canon, Los Angeles County. The notes were non-negotiab...
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In the decisions of these causes in Department, the case ofPlacer County v. Dickerson, 45 Cal. 14, was not considered. It contains a declaration contrary to the views expressed in Department, and for that reason a rehearing of the question was was ordered. After such rehearing, and full consideration of the cases relied on by the petitioner, the court adheres to the reasonings and decisions contai...
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This action was brought to recover the amount of certain taxes for the fiscal year 1896-97, paid by the plaintiff corporation under protest. There were due to the plaintiff in May, 1896, upon outstanding solvent loans theretofore made by it, and secured by pledge of divers stocks and bonds, the sum of $578,200, and the further sum of $30,000, evidenced only by the promissory note of the borrower. ...
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This appeal is from the judgment. The court below ordered judgment dismissing the case upon the ground that it had no jurisdiction. The findings show that the note upon which suit was brought was for the sum of two hundred dollars principal, with interest from date. The demand, exclusive of interest, did not amount to three hundred dollars, and hence the superior court had no jurisdiction. (Const....
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The complaint alleges that the plaintiff and defendant entered into a parol contract – no writing or note or memorandum of the same having ever been made – by which the defendant agreed to sell and the plaintiff agreed to purchase a certain tract of land in the state of Nevada, consisting of 2,445 acres, being a cattle-ranch, with a certain band of horses and cattle thereon, for the sum of $60,000...
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—Suit by vendee of real property in possession, against the vendor, for accounting and for specific performance. The judgment was, that there was due on the contract the sum of $3,869.54, and that, on default of payment for thirty days, plaintiff should be foreclosed of his interest, and defendant have restitution of the premises. It is claimed by the appellant that the amount adjudged against hi...
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Appeal from an order denying a petition for distribution. December 29, 1865, Adam Fath was the owner of certain real property in Alameda County, and on that day he filed in *Page 611 the office of the county recorder a declaration, properly executed and acknowledged by him, of his intention to claim and use the same as a homestead. The property so claimed was his separate estate, and of less than...
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The defendant was convicted of an assault with a deadly weapon, and was sentenced to two years' imprisonment in the state prison; and an appeal appears to have been regularly taken on his behalf from the judgment and from an order denying a motion for a new trial. We have examined the record and see no prejudicial error; and as we have recently received a written communication from the defendant, ...
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Action to set aside a judgment and to restrain its enforcement. Defendants' demurrer to the complaint was sustained, and plaintiff having failed to amend, judgment was entered against him, and he appeals. Pending the action, William F. March, the principal defendant, died, and the administratrix of his estate was substituted. The complain is very long, but a statement of the facts, so far as requi...
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—Plaintiff brought this suit on his own behalf and for forty-five others, whose assignee he claims to have been. Judgment was rendered in favor of the corporate defendant, but plaintiff recovered the amount of his personal demand against the defendant Rikert. He failed to recover the amount of the assigned claims, the court holding that they had not been assigned to him. Except some objections to...
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Both of these actions were actions to foreclose mortgages executed by the defendants to secure their promissory notes. The notes and the securities passed by sundry transfers and assignments to the plaintiff. The questions involved upon these appeals are identical, and the cases may therefore be considered and decided together. *Page 628 The defendants executed their promissory notes, secured by ...
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The defendant was tried and convicted of murder in the first degree and sentenced to be hanged, and has appealed from the judgment and from an order refusing a new trial. The principal point relied upon for a reversal is the refusal of the court to grant the change of venue upon the showing made by the defendant. Section 1033 of the Penal Code directs the trial court to grant the change when it is...
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The following parts of the opinion delivered in this case in Department Two, July 2, 1900, are hereby adopted: – "It is averred in the complaint that each of the plaintiffs is the owner of at least five shares of the capital stock of the corporation defendant, the Bitumen Consolidated Mining Company, the capital stock being three hundred thousand dollars, divided into shares of one hundred dollars...
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Upon the argument following the rehearing in this case, it was urged, first, that the evidence showed beyond a conflict that plaintiff was guilty of contributory negligence. This matter is considered in the opinion heretofore rendered in Department, and the conclusion was there expressed, that the question of the contributory negligence of the plaintiff was one which, under the facts, was proper f...
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The appeal herein was originally heard in Department One, and an opinion filed therein, upon which an order was made reversing the judgment of the superior court. Upon the petition of the respondents, a rehearing was granted, and the cause was afterwards argued before the court in Bank. The opinion rendered in Department is now adopted by the court in Bank, and for the reasons therein stated the j...
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—Defendant was elected to the office of mayor of the city of Sacramento, and plaintiff was his predecessor in office. When the time arrived for defendant to take possession of his office, plaintiff refused to give him possession, and this litigation thereupon arose. The action is in the nature of a proceeding in injunction, and many questions of law are raised upon this appeal. The court only fin...
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This is an application by the board of railroad commissioners of the state of California for a writ of mandate to compel the defendant corporation to produce to the plaintiffs, and to permit plaintiffs to examine, the books, records, and papers of said corporation. The court below refused the writ and ordered the action dismissed, and judgment was accordingly entered. This appeal is from the *Page...
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This is an appeal by the defendant Nettie R. Craven, from a judgment in favor of plaintiffs and the intervener. Appellant made a demand for a jury for the trial of "said cause," which was refused; and the only question presented on this appeal is, whether she was entitled to have "said cause" tried before a jury. Persons other than appellant were originally made defendants; but by defaults, discla...
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Plaintiff brought an action in the justice's court for the sum of $250, being the principal of a promissory note, and he also asked judgment for the sum of $100 as an attorney's fee in the litigation, the note providing for a reasonable attorney's fee in case suit was brought. Defendant filed a demurrer, one of the grounds of demurrer being that the court had no jurisdiction of the subject-matter ...
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Appeal from order making allowance to widow of deceased of forty dollars per month for maintenance pending administration. The application was contested by the daughters, and the children of a deceased son of a former marriage. The grounds of opposition were: 1. That the widow had separate property sufficient for her maintenance; 2. That there was no property in the estate from which the allowance...
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Plaintiffs brought this action, as taxpayers of the city of San Diego, to set aside a contract of lease between the said city and defendant water company. The case was tried on the cross-complaint of the water company and the answer of the defendant city thereto, the plaintiffs having withdrawn from the action. The court found that the lease in question was void, and that the company was not entit...
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By the information the appellant Brooks and one Tony Bice were jointly charged with the murder of Don Donelly. Brooks was tried separately and convicted of murder in the second degree. He appeals from the judgment and from an order denying a motion for a new trial. The record is in a very loose and unsatisfactory condition. The hill of exceptions, after showing that certain witnesses were ...
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The defendants appeal from a judgment against them and from an order denying their motion for a new trial in a suit brought by plaintiff on a promissory note for four hundred dollars, besides interest, and to foreclose a mortgage given to secure said note. There is also an appeal from an order denying one Charles Orendorff the right to intervene. 1. Appellants contend that the description of the p...
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Plaintiff brings the action to recover from defendant bank twelve thousand seven hundred and seventy-eight dollars and five cents alleged to have been deposited with the hank by plaintiff on September 19, 1894, with instructions “to pay the same to Thomas Cunningham, sheriff of San Joaquin county, provided the said sheriff called for the same and left with the bank for plaintiff a certificate of ...
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[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 328 The appellant, Lena B. Mattern, executed to the respondent a mortgage bearing date March 1, 1895, upon certain land in the county of Los Angeles, to secure payment of the sum of three thousand five hundred dollars, according to the terms of a promissory n...
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The plaintiff charges the defendants with the conversion of certain shares of stock belonging to him, and seeks by this action to recover damages therefor. His cause of action is based upon the following facts: At some time in the early part of 1896 he owned and had in his possession two certificates representing, respectively, fifty and one hundred shares of the capital stock of the Consolidat...
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[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 338 Plaintiff's action is to cancel a mortgage given by plaintiff to defendant's assignor, Oakland Building, Savings and Loan Association, upon certain real property in *Page 339 the mortgage described, and for the recovery of three fully paid-up shares in s...
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Respondents have moved to dismiss the appeals in this case. One of the grounds relied upon to secure a dismissal is based upon the claim that the undertaking upon appeal is substantially defective. This undertaking *Page 351 recites that whereas the appellants have appealed to this court from the judgment entered in the action, and also from the order denying plaintiff's motion to set aside the j...
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The appellant was charged with the crime of murder in the killing of Thomas Kehoe, and upon his trial *353 therefor was convicted of manslaughter. He has appealed from the judgment entered thereon, upon the ground that the verdict is not sustained by the evidence. The evidence established that Kehoe died from Bright’s disease of the kidneys, superinduced by an excessive use of alcoholic drinks....
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Action to recover certain taxes which were paid under protest. In response to a demand made by the assessor of the city and county of San Francisco, plaintiff, between the first Monday of March and the first Monday of July, 1896, returned a verified statement purporting to contain a complete list of all its property, subject to taxation for that fiscal year. Without requesting a corrected statemen...
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This is a proceeding to review the action of the board of supervisors of San Luis Obispo county in the matter of the alleged creation of Templeton sanitary district in said county. The plaintiff based his application for the writ upon an affidavit as required by section 1069 of the Code of Civil Procedure. The writ was issued and served and a return thereto was made, setting out the petition for t...
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Action, for services as attorney at law rendered defendant by Joseph Bothschild, Esq., plaintiff’s assignor. Defendant denied the alleged indebtedness, and as a separata answer alleged that the firm of Christy & Wise, composed of John H. Wise (defendant) and Harry E. Wise, was the owner of a promissory note for nine thousand seven hundred and sixty dollars, made by one James Murphy and one E. S...
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The complaint in this action prayed damages for injuries occasioned to plaintiff's property and person by reason of blasting operations negligently conducted by the defendant. It charged that the blasts showered a rain of rocks upon plaintiff's house and premises, "killing chickens and breaking boards of house, stable, woodshed, chicken-house, and fence." That upon one occasion "two immense bowlde...
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The plaintiff recovered judgment in the court below for the sum of thirteen thousand three hundred and ten dollars, with interest and attorney's fee, alleged to be due on seven promissory notes made to the plaintiff by the defendants. The complaint is in the ordinary form. The defense was fraud in the procurement of the contract. The questions involved relate exclusively to the sufficiency of the ...
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This action was brought by plantiff, as assignee of Field, to recover ten thousand dollars alleged to be due on four promissory notes, executed in pursuance of the *Page 386 contract involved in Field v. Austin, ante, p. 379, just decided, and belonging to the same series as the notes sued on in that case. The notes all contain stipulations for attorneys' fees in case of suit, and are, therefore,...
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This is an application for a writ of mandate to compel the defendant, who is auditor of Fresno county, to draw a warrant in favor of the petitioner for certain installments of salary alleged to be due him as assistant district attorney of said county. In the County Government Act of 1893 (Stats. 1893, p. 346), in section 25, it is provided as follows: "The boards of supervisors, in their respectiv...
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[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 392 Action for personal injury. The trial was by a jury, and plaintiff had the verdict. Defendant appeals from the judgment and from an order denying its motion for a new trial. The injury was caused by one of defendant's cars leaving the rails and colliding ...
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The judgment appealed from was affirmed in Department, June 15, 1900 (61 Pac. Rep. 935), upon the authority of Carpenter v. SanFrancisco Sav. Union, 128 Cal. 516. A rehearing was granted upon the representation that the question upon which the Carpenter case was decided had not been presented by the plaintiff or by the defendant either at the trial in the court below or in the briefs here upon the...
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Motion by defendants to dismiss for neglect to prosecute with diligence. In 1882 plaintiffs brought the action to determine their right to the possession of certain mining ground as against defendants' right to possession. The action was brought under section 2326 of the Revised Statutes of the United States. Defendants had judgment on demurrer in January, 1882. An appeal was taken to this court a...
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This is an agreed case submitted under section 1138 of the Code of Civil Procedure. The defendant had judgment and the plaintiff appeals. The plaintiff is a constable in Stanislaus county, and performed services as such in criminal cases, for which he is entitled to compensation; and the question is whether such compensation is fixed by the act of 1895, establishing fees of county, township, and o...
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Elizabeth Adams, the executrix of the will of deceased, filed her final account, asking for its settlement and allowance. The Bank of Woodland, a creditor of said estate, filed a written contest as to certain items of the account. Findings were filed and a decree entered allowing the account and the contested items. This appeal is from the decree and an order denying a new trial. It is claimed tha...
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The appellant executed his promissory note, June 21, 1889, for the sum of three thousand seven hundred and fifty dollars, payable ninety days after date, to the order of Frank C. De Long. De Long placed the note with the First National Bank of San Francisco for collection, and on the day of its maturity the plaintiff paid to the bank the sum of three thousand eight hundred and twenty-five dollars ...
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The transcript presents two appeals by the executor; one from an order entered March 23, 1899, settling his third annual account, and the other from an order entered at the same time directing him to pay the claim against the estate of Peter A. Kearney, amounting with interest to $613. The main question involved in the appeal first above mentioned is whether the court erred in disregarding a forme...
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Plaintiffs, who are the surviving wife and children of Thomas Habishaw, deceased, sued the defendant to recover damages for the death of Thomas Habishaw, the husband and father, alleging that he was killed in defendant's mine through the negligence of the defendant and its servants and employees. The negligence pleaded consisted of the failure by the defendant to provide a flooring or lagging over...
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This is an appeal from a decree of distribution. The deceased, who died intestate, inherited the property distributed from her father. She left surviving her, her husband, and two half-sisters on the mother's side, the appellants. The whole of the property was distributed by the decree to the respondent and the appellants excluded. The case turns upon the construction of the provisions of the Civi...
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In 1889 the defendant, the Supreme Council of the Catholic Knights of America, a beneficial order incorporated under the laws of Kentucky, issued its benefit certificate to one John M. Conway, by which, upon the death of John M. Conway at a time when he was in good standing in the order, there should be paid to his nephew, Thomas J. Conway, the sum of two thousand dollars. The defendants Noonan, S...
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This action was brought to compel defendant to set forth the nature and extent of his claim on a certain promissory note purporting to have been executed by plaintiff to defendant, and to have the same determined by the court to be of no force and validity. Plaintiff and defendant were partners in the lumber business in West Berkeley, and defendant sold his interest in the business and property of...
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Winifred Fennell, deceased, was the wife of the plaintiff William Fennell. She died in the city and county of San Francisco, November 28, 1899, leaving estate therein, and the defendant Drinkhouse was duly appointed special administrator of her estate. On February 15, 1900, as such special administrator, he took possession of the sum of four thousand two hundred and twenty-three dollars and fifty-...
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Appeal from an order confirming the sale of real estate. The respondent made a sale of certain real estate of the above-named decedent under an order of the superior court authorizing him thereto, and thereafter made his return to the court setting forth that he had sold the same to the appellant herein. At the hearing upon this return the appellant filed objections to a confirmation of the sale, ...
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This action was brought by the surviving wife and minor children, for damages occasioned by the death of Joseph A. Hedge, the husband and father. Defendant appeals from the judgment and order denying his motion for a new trial. The material facts in the case are as follows: Defendant was the owner of a large fruit farm near the town of Porterville. One A.H. Schultz was the superintendent of defend...
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This action was brought in a justice's court to recover the sum of twenty-six dollars license tax for carrying on the retail liquor business in the city of Los Angeles during the months of June and July, 1899. Defendant in his answer raised the question of the legality of the ordinance under which it was sought to collect the license, and the case was transferred by the justice to the superior cou...
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Applications for letters of administration upon the estate of the above-named decedent were presented to the superior court of Kings county by the public administrator of that county, the respondent herein, and also by the appellant, a brother of the deceased. Upon the hearing thereon the court made an order appointing the respondent as such administrator, and directing letters of administration t...
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[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 474 The wife is contesting the probate of the will of her deceased husband, Tolman N. Benton. The proponent of the will is Herbert A. Benton, a son by a previous wife. At the trial before a jury, the issues were limited to incompetency, and also fraud practic...
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That portion of the judgment decreeing a lien against the lands of the defendant in the sum of two hundred and thirty-eight dollars and seventy-six cents and directing a sale of said lands in satisfaction thereof is affirmed. The judgment against the defendant for the sum of eleven hundred and forty-six dollars, with interest thereon, for the paving and curbing of Laguna street is reversed, and a ...
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Appeal from an order setting aside a sale of land under a foreclosure decree. The appellants are the defendants C. Bunnell and the Germania Building and Loan Association, and Elizabeth Bunnell, who is not a party to the suit. The defendant Bunnell derived his title from the plaintiff under a deed reserving a lien for certain moneys, part of the consideration, which is the lien foreclosed. The buil...
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This case has been before the court in the past. (Carpy v.Dowdell, 115 Cal. 677.) The facts involved in the litigation are set out in detail in the decision rendered at that time, and we will now only state those which are necessary to a consideration of the questions presented upon this appeal. Defendants are appealing from a judgment of foreclosure rendered against them upon two certain notes an...
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Appeal from a judgment in favor of the plaintiff for the abatement of a nuisance and for damages, and from an order denying a new trial. The plaintiffs are owners of a tract of land in the city of Modesto, on which, until a short time before the commencement of the suit, they resided with their families. The nuisance complained of is an open wooden trough, passing about three hundred yards from th...
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This is an action against a notary public and his sureties for damages charged to have resulted from the negligence of the notary. *Page 506 As appears from the record, in April, 1891, one Fisher, who was a real estate broker in San Francisco, as such broker offered to sell to plaintiff ten lots of land situate in San Mateo county, then standing in the name of Charles A. Anderson. The lots were p...
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The defendant was charged in the information of the crime of an assault with intent to commit rape, and upon trial was convicted. He appeals from the judgment and order denying his motion for a new trial. *Page 513 1. It is contended that the evidence fails to show that defendant made the assault with the intent to commit rape, but that his intention was to gratify an unnatural desire, which is n...
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This action was tried before the court, findings filed, and judgment entered for plaintiff. Appellant Ganahl has appealed from the judgment on the judgment-roll. The only question necessary to be determined is as to whether the findings entitled the plaintiff to judgment against appellant. It appears from the findings that plaintiff's assignor entered into a written contract with defendant Parsons...
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On the 11th of January, A. D. 1897, the corporate defendant, the railway company, owned and was operating a street railway on Page street, in San Francisco, between Broderick and Devisadero streets. On this block the street is sixty-eight feet nine inches wide, and the sidewalks twelve feet each. From the curb on the southerly side to the nearest rail is eleven feet and four inches. The grade fro...
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Appeal from an order granting the defendant a new trial. The suit was brought to quiet title to lands described in the complaint. The defendant Reid claimed title in himself. Both parties deraigned title from one Thomas O'Donnell, the husband of plaintiff – the plaintiff, by deed of conveyance of date of July 14, 1891; the defendant Reid by a sheriff's sale under an execution against Thomas O'Donn...
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[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 532 [EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 533 This is an action by the vendee of certain land and of certain shares of stock in an irrigation company to can...
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The defendant Fay was the district attorney of Kern county from the first Monday of January, 1895, to the first Monday of January, 1899, and the other defendants were sureties on his official bond as required by law. The action is to recover the sum of six hundred and thirty dollars, moneys alleged to have been collected by the defendant Fay as such district attorney, and to have been unlawfully r...
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Suit to quiet title. Each party to the action claims title to the land in controversy under the Eagle Lake Land and Irrigation Company, a corporation – the plaintiff by virtue of a sheriff's deed under two judgments rendered against the corporation, and the defendant by virtue of a sheriff's sale under a judgment foreclosing a mortgage executed by the corporation. Judgment was rendered in favor of...
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An appeal from a judgment against the defendants and from an order denying a new trial. The suit was to quiet title to two mining claims particularly described, and known as the Luella Quartz Mining Claim – and the *Page 563 Extension of the same. The former claim was located January 1, 1896, by the plaintiff; the latter by his wife, who conveyed to him prior to the beginning of the suit – he con...
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This action was brought to foreclose a contractor's lien for work and labor done and materials furnished in supplying all of the concrete and artificial stone work for the building of the defendant known as the "French Hospital" in the city and county of San Francisco. The case was tried before the court, and findings filed upon which judgment was entered for defendants. Plaintiff made a motion fo...
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The plaintiffs seek by these actions to condemn a right of way over a strip of land belonging to the defendants, for the purpose of constructing thereon a levee and canal. The two actions were tried together as a single cause, and have been presented here in a single record and upon the same argument. Certain issues were submitted to a jury and its verdict thereon adopted by the court, and additio...
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Appeal from the the judgment of the Superior court in favor of the defendant, and dismissing the action. The action involves the title to a tract of land in San Francisco held by the defendant for public purposes. The complaint was filed in 1872, and the answer thereto was filed in 1873. In December, 1875, upon the petition of the plaintiff, the cause was removed to the United States circuit court...
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Defendant was convicted on an information charging him with the crime of arson. He appeals from the judgment and from an order denying his motion for a new trial. 1. When brought into court to plead defendant moved to set aside the information, on the ground that no complaint was ever filed against him and that the warrant of arrest was issued without authority of law and the magistrate had no ...
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Emily C. Yoell petitioned for and obtained her discharge in insolvency. Written opposition to her discharge was filed by certain creditors, who had proved their debts, upon the sole ground that the insolvent had concealed a part of her estate. At the hearing no testimony was offered in support of this ground of opposition, but the attorney for one of the contesting creditors opposed the discharge ...
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This action is brought by plaintiff, assignee of his wife, to recover from the defendant, a common carrier, damages for its failure to deliver a trunk and its contents. In its answer defendant denied that the loss of the trunk was occasioned through its negligence, and further as a special defense pleaded a contract for the carriage of the trunk by which the limitation of liability for its loss wa...
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Upon January 22, 1896, A. Anderson, defendant and appellant herein, commenced an action in the *Page 592 superior court of the county of Alameda against one William Schmidt to recover a money judgment. Thereafter, on the twenty-fourth day of January, at the hour of 12:30 P.M., he caused an attachment to be levied upon certain real estate of William Schmidt, a member of the copartnership of George...
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[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 599 Action in foreclosure. The appellant, John S. Reed, executed to the plaintiff July 23, 1892, his promissory note for fifteen thousand four hundred and ninety-one dollars, and at the same time, to secure its payment, executed a mortgage upon certain real e...
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Appeal from judgment and order denying a new trial. On the thirteenth day of March, 1896, one *Page 606 Helen M. Atwater was the owner and in the possession of a certain lot in Tiburon, Marin county, and a lease thereof for the term of eleven years from the fifteenth day of February, 1896, at a monthly rental of fifteen dollars per month, with a two-story frame building thereon known as the El Do...
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This is an action in partition in which the complaint alleges that the plaintiff Holt and the defendant Frances M. Holt are tenants in common, each having an estate of inheritance to the extent of one undivided half of the whole of the fee in a certain described lot in the city of Los Angeles; and that defendant Frances Bacon has a mortgage lien on the said interest of Frances M. Holt to the exten...
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This is an action to recover five thousand eight hundred and fifty-one dollars and sixty cents alleged to be due to plaintiff from defendant as taxes for the fiscal year ending June 30, 1897, on solvent credits, admitted to be owned by defendant, aggregating three hundred and forty-eight thousand seven hundred and twenty-one dollars and secured by nontaxable stocks and bonds. Plaintiff had judgmen...
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The defendants in this case appeal from an order denying a new trial. The respondent makes a preliminary motion to correct the record of the proceedings in the superior court. The facts are that the defendants, in support of their application for a new trial, served a draft of their proposed bill of exceptions, which showed that the trial judge, of his own motion, had given a certain instruction, ...
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Action for slander of plaintiffs’ title to certain real estate. The complaint, besides stating in detail the facts constituting the slander, alleges the plaintiffs’ ownership of the property described. The answer of defendant Duvall denies all the allegations of the complaint and alleges ownership in her. The prayer of the answer is for costs and that plaintiff “take nothing by reason of his comp...
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Application of a writ of certiorari to review certain orders of said court, Department Nine thereof, adjuding petitioner guilty of contempt. The petitioner was the attorney of one Dora Levy, the executrix of the will of Michael L. Levy, deceased, whose estate was being administered in said court, and also of said Dora Levy, as guardian of the estate of one Marcus Levy, a minor, which was also pend...
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This action was brought by Martha J. Tuers, divorced wife of William J. Tuers, against William G. Tuers, Grace Patterson, his daughter, and her husband, to obtain a judgment declaring null and void a deed and transfer of his property made by defendant William G. Tuers to his daughter. The consideration for the transfer was love and affection, "and that the said Grace Patterson shall afford and giv...
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This case is before us on a motion of respondent to dismiss three appeals of appellant – from the judgment, from an order denying a motion for a new trial, and from an order made subsequently to the judgment modifying the decree as to the care and custody of the minor children of the parties. The action is for divorce brought by the wife against the husband, and was commenced in the superior court...
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Application for a restraining order. The superior court rendered its judgment in this action August 1, 1900, and it was entered of record August 6th. By the judgment the rights of the several parties to the action in certain lands described therein, and in certain waters held to be appurtenant to said lands, were defined and determined. It was also adjudged that no party to the action has any righ...
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Action upon a promissory note for the principal sum of eight hundred and thirty-two dollars, alleged to have been made and executed by James Mack to plaintiff on December 28, 1894. It is also alleged in the complaint "that on or about the twentieth day of June, 1895, the defendant Davis wrote his name upon the back of said note to give it credit, and delivered the same to plaintiff." Judgment is s...
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The respondent moves to dismiss the appeal upon the ground "that after the taking of said appeal the appellant, Tiny Freud, administratrix with the will annexed of the estate of Morris Freud, deceased, voluntarily paid to the respondent, and the respondent accepted, the whole sum of money specified in the decree appealed from, thus effecting a satisfaction of said decree." The motion is made upon ...
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The defendant was convicted of murder in the first degree, and sentenced to life imprisonment. He appeals from the judgment and from the order denying a motion for a new trial. The appellant is an Indian, evidently unlettered and ignorant. He was charged with the murder of one Jacob *Page 649 J. Veitinger, who was a somewhat elderly man, and lived alone in a small house in the country. On July 28...
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The complaint in this case contains two counts. The first declares upon a contract in writing alleged to have been entered into between Harvey J. Lewelling and Stephen W. Van Syckel, partners in business under the name and style of Lewelling Van Syckel, and the defendant gas company, August 20, 1896. It is alleged that by the terms of said contract Lewelling and Van Syckel agreed to build and ere...
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The defendant was, at all times named in the complaint, the owner of lands in Reclamation District No. 536. The assessment list, properly made and certified, was filed with the county treasurer of the county of Solano on December 4, 1891, where it remained for more than thirty days, and the assessments not having been paid, the treasurer of said county returned the same on the eleventh day of Jan...
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Appeals from an order of sale of real estate, an order settling annual account of administratrix, and an order for mortgage of real property. The several appeals will be considered in the order stated. The deceased died seised of two lots of land, described in the petition, which he devised to his widow, Tiny Freud (now administratrix), "to hold the same during her lifetime in trust for (testator'...
Views: 1
The suit was brought for the foreclosure of an assessment lien on a lot of the defendants in the city of Los Angeles for sewer work. The proceedings for the assessment are set out in detail in the findings. The judgment was for the defendants and the plaintiff appeals. The ordinance for the work requires it to be done "in accordance with the plans and specifications on file in the clerk's office o...
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[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 683 This is an action by the assignee of an insolvent corporation to recover from the defendants the unpaid balance of the sum bid by the defendant Ambrose for certain real property of the corporation which was sold under execution by the defendant Saunders. ...
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This is a petition for a writ of mandate to the judge of the superior court, requiring him to settle a bill of exceptions. Judgment having been given against the petitioner in an action of ejectment, he in due time served his proposed bill of exceptions, to which the defendants in the action proposed and served amendments on June 3, 1901. On June 5th, petitioner served notice that he rejected t...
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[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 484 Carl Richard Schneider was killed, in this city, at the junction of East and Pacific streets, by one of the defendant's street-cars, and this suit was brought by the plaintiff, his mother and sole heir, to recover damages for the killing. The case was tri...
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The suit was brought to quiet title to the lands described in the complaint. Judgment was rendered for the defendant. The appeal is from the judgment, and on the judgment-roll. Both parties deraign title from one George E. White, plaintiff’s divorced husband. White had mortgaged the lands in controversy and other lands to one Fairbanks, and afterward some of the same lands, but not the lands in co...
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This is a contest for letters of administration of the estate of William Goodman, deceased, between Georgina Gamer, a niece of defendant, and A. R. Judd, who claims under a written request of one Maggie Goodman-Phillips, an illegitimate daughter of decedent. Judgment *676went for Gamer, and from the judgment and an order denying a motion for a new trial Judd appealed. The only question in the case...
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Action to recover an unpaid balance due on a judgment rendered in an action of unlawful detainer. Defendants had judgment on demurrer to the complaint, from which plaintiff appeals. The complaint showed that on August 22, 1891, plaintiff recovered judgment for possession of certain real property, and for $1,50-0 damages and $20.30 costs, and under a writ issued thereon September 1, 1891, and retur...
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Appeals from a judgment for the plaintiff in a suit for unlawful detainer, and from an order refusing to set aside the judgment. One of the grounds of the motion *661to set aside the judgment is mistake and excusable neglect, etc.; but as there is no affidavit of merits, this ground cannot be considered. The other grounds, which are equally involved in the appeal from the judgment, are (1) the ins...
Views: 7
This action was brought to rescind a contract of purchase and sale of a certain fruit ranch of about fifty-three acres, situated in Ventura county, together with fifty-five shares of water stock, and to compel defendant to give up for cancellation a note and mortgage for $12,000, given to secure the balance due under said contract, and to recover $3,000 and interest paid on said contract, and also...
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In this case the superior court made an order for the payment of an attorney’s fee out of the estate of the plaintiff. After payment by the guardian, the appellant, Townsend, made a motion to vacate the order allowing the attorney’s fee, and requiring its repayment by the attorney, with interest. In due time the superior court made an order which expressly vacated the previous order allowing the a...
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Appeal from a judgment for the plaintiffs and from an order denying the defendants’ motion form new trial. The suit was for the specific performance of a contract to the plaintiffs by the defendant Frost for the sale of land. The facts, as alleged in the complaint and found by the court, are as follows: By the terms of the contract, which was executed May 26, 1898, the defendant Frost agreed to se...
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The defendant was charged with and convicted of the crime of assault with intent to commit murder, and appeals from the judgment given against him. The court instructed the jury as follows: “Murder is the unlawful killing of a human being with malice aforethought. Such *632malice may be express or implied. It is express when there is manifested a deliberate intention unlawfully to take away the li...
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Action to recover damages for loss from sixty-four barrels of spirits deposited in defendant’s warehouse. The case was tried before a jury. Plaintiffs recovered a verdict. Defendant made a motion for a new trial, which was denied, and this appeal is from the judgment and order denying the defendant’s said motion. It is claimed by defendant, and we think correctly, that the evidence is insufficient...
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The defendant was charged with murder, and appeals from a judgment convicting him of manslaughter and from an order denying him a new trial. It appears that on the twentieth day of July, 1899, at 4 or 5 o’clock in the afternoon, the defendant and Caleb Greenwood, with several other persons, were in the saloon of Charles Lockhart,. near Monroe postoffice, in Mendocino county. Greenwood and defendan...
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It appears from the complaint herein that both the parties to the suit are corporations having their principal places of business in the city and county of San Francisco. The action was brought in said city and county to recover $25,000 on account of injuries to real estate situated in the county of Kern. It is alleged in the complaint that the plaintiff owns certain lands and an interest in the B...
Views: 0
Action on contract for sale and purchase . of certain raisins. The cause was tried by a jury, and plaintiff had the verdict. Defendant appeals from the order denying its motion for a new trial. Defendant interposed a general demurrer to the complaint, which was overruled, and it objected to any evidence in support of the complaint, on the ground that it failed to state a cause of action, and on th...
Views: 1
The appellant, Silas Shirley, was guardian of the person and estate of Clark Averill, an incompetent, now deceased, and appeals from an order of the court settling his final account. The account was contested by the respondent, H. F. Dusing, who was executor of the will of the deceased incompetent, and the point is made that he had no right to contest. But this is manifestly untenable: Code Civ. P...
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I concur in the denial of a hearing in bank, but I think that the expression in the opinion that “in case of a substantial conflict in the evidence the finding of the court below is conclusive here” should be stricken out. That rule does not apply to a case where an absolute deed is sought to be declared to be something else. I concur: Beatty, C. J....
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The plaintiff recovered damages against the defendant in the sum of $750 for personal injuries suffered by her while a passenger on one of the defendant’s street railway cars. The car in which she was riding ran off the track at a point on Eighth street in the city of Los Angeles, and she jvas thereby thrown to the floor of the car and suffered the injuries complained of. The derailment, which too...
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This action was brought by Mark Strouse, a director, and twelve others, stockholders in the Gold Ridge Consolidated Mining and Milling Company, against said corporation and Henry Sylvester, Albert J. Sylvester, William F. McLaughlin and Ira H. Chapman, who, with plaintiff Strouse, constituted the board of directors of said corporation. Said Mark Strouse having died, after judgment his executrix wa...
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The appellant was charged with burglary in having entered a freight-car of the Southern Pacific Company in San Francisco with intent to commit larceny therein. There was also a charge of a prior conviction of petit larceny against appellant. The prior conviction was confessed, and on a trial the defendant was convicted of burglary in the second degree, and sentenced to five years in the state pris...
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By reason of the complicated facts disclosed by the record in this proceeding, possibly some erroneous statements have crept into the opinion heretofore rendered; but, as to any of those statements, they do not appear to materially affect the soundness of the conclusion to which the court arrived. In answer to the petition for a rehearing it *767may be further suggested that it appears, first, by ...
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Plaintiff recovered judgment for $4,500 damages f-or breach of promise of marriage. Defendant made a motion for a new trial, which was denied, and this appeal is from the judgment and order. Plaintiff testified fully as to all the facts and circumstances connected with thé alleged contract of marriage. Her counsel then asked her this question: “Did you ever tell anybody about your contemplated mar...
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Action on contract for the sale and purchase of certain raisins. Plaintiff had judgment, from which, and from the order denying his motion for a new trial, defendant appeals. The court found the following facts: (l) That on or about July 30, 1898, the plaintiff agreed to buy from defendant, and defendant agreed to sell to plaintiff, the entire crop of muscat raisins of defendant, produced in the y...
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Plaintiffs were the owners of certain land situated in San Diego county, and defendants, or some of them, were owners of certain improved lots in the city of Lincoln, Nebraska. An exchange, after much negotiation, was finally agreed upon between the parties, and deeds made September 10, 1897. Defendants had formerly resided in Lincoln, but had removed to San Diego in 1895. Plaintiffs resided in Sa...
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Action for work, labor and services. The plaintiff had findings and judgment, and defendant appeals from the judgment and from an order denying a new trial. In April, 1899, the defendant entered into a contract with the South Mountain Water Company to construct for it a pipe-line near Eedland's. On June 1st he entered into a contract with one George Nolan, in writing, to haul the pipe and cement n...
Views: 1
Plaintiff Betsey Warren and her daughter, Mary Green, a woman of mature age, were returning to their home in a small market wagon, drawn by one horse, and when crossing the railroad track over C street, in the city of San Bernardino, a collision occurred with an engine attached to a moving train of cars of defendant, and as the result plaintiff was injured and Mary Green was killed. The present ac...
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Jeanie A. Coursen died testate in 1877, naming William P. Stout and G. A. Coursen as executors, and her will was shortly after duly probated, and letters issued to the executors. An inventory was filed and notice to creditors published. No claims have been presented *758against the estate. The property consisted of $180 in money and certain real property on Fulton street, in San Francisco, which w...
Views: 2
The defendant has been convicted of the crime of embezzlement, and appeals from the judgment and order denying his motion for a new trial. The main proposition advanced by him upon his appeal is to the effect that the evidence is insufficient to support the verdict. The court has examined the evidence with care, and is satisfied that the claim made is without merit. It is insisted that the evidenc...
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It appearing that two appeals have been taken from the same judgment by the plaintiff, and that no question is raised as to the validity of the first appeal, it is, therefore, on motion, ordered that the second appeal, taken October 20, 1900, be dismissed. It is further ordered, on motion of appellant, that said appellant may complete the record of the first appeal by supplying a properly certifie...
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The plaintiffs are the vendors in a contract for the sale of land to defendants Grider and Dow. The suit is against the latter, and purchasers from them, to foreclose their interests under the contract. Judgment went against the vendees and some other defendants by default—and as to the former by stipulation also—and against the other defendants after answer and trial. The last-named defendants ap...
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Action to quiet title. Plaintiff recovered judgment and defendant appeals therefrom and from an order denying his motion for a new trial. The premises are described in the complaint as “lying and being in the Rancho Santiago de Santa Ana, county of Orange, state of California, bounded and particularly described as follows, to wit: Beginning at a point 15.825 *737chains east from the corner of sect...
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This action was brought in the county of Los Angeles; in which defendants Bowker and Chandler reside. The defendant the San Diego Union Company, a corporation, has its legal residence and. place of business in the county of San Diego, and in due time moved the court for an order changing the place of trial to that county. Said motion *704was denied, and said corporation appeals from the order deny...
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The defendant was convicted of forgery, and sentenced to nine years in the state prison. He appeals from the judgment and from an order denying his motion for a new trial. 1. Appellant contends that the information is insufficient, and that the demurrer thereto should have been sustained. The information charged defendant with forging an instrument in writing consisting of a promissory note for $8...
Views: 0
Appeal from judgment on a bill of exceptions. The action was brought to foreclose a lien for materials furnished by plaintiff, to be used, and which were used, in the construction of a building upon the premises described in the complaint. By the terms of the contract between the parties the plaintiff agreed to furnish to defendant certain moldings, turning, brackets and material for inside finish...
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This action is brought to recover damages for the death of Mary Green, who, in attempting to cross the railroad track in a wagon at C street, in the city of San Bernardino, was killed by a locomotive of defendant. Her mother, Mrs. Betsey Warren, who was with her at the time, was also injured in the accident. She brought an action for damages against defendant and recovered. An appeal was taken to ...
Views: 0
This is an action for damages for maltreatment of the plaintiff on one of the defendant’s steamers. The jury returned a verdict for $1,500, and judgment was entered accordingly. The defendant appeals from the judgment, and from an order denying a new trial. The case was before this court on a former appeal, and is reported 121 Cal. 137, 53 Pac. 644, where the facts are more fully stated. The groun...
Views: 0
Deceased died intestate in September, 1897, and J. W. Hosselkus was appointed administrator of the estate, and since has continued such administrator. In September, 1899, Annie McCabe Thomas, one of the heirs, *782filed a verified petition, containing allegations upon which she asked to have the letters of the administrator revoked, and some other competent person appointed in his place. The admin...
Views: 2
The appeal is from a judgment for the plaintiffs against the defendants Bauer and Whelan for the sum of $350 for forcibly breaking and entering the plaintiffs’ dwelling-house, and for carrying away goods of the plaintiffs, and from an order denying the defendant Whelan’s motion for a new trial. The case was tried by a jury, who rendered a verdict for the amount named. The defendant Whelan alone ap...
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Defendants were jointly accused of the crime of burglary, were tried together and convicted, the *721jury returning the following verdict: “We, the jury in the above-entitled cause, find Walter Brady and George Helms, defendants, guilty in the first degree for burgulary.” Defendants moved for their discharge, and also for a new trial, and both motions were denied, and they appeal from the judgment...
Views: 1
Action to have certain deeds declared void and canceled, and for the reconveyance of the property to plaintiff. Defendants had judgment, from which and from an order denying her motion for new trial plaintiff appeals. 1. Plaintiff contends that the evidence does not support the finding that she was of sound mind when she executed the deed sought to he set aside, and that she knew that she was maki...
Views: 0
This action was brought by plaintiff, as administrator with the will annexed, to recover from defendants possession of lot 22, block 12, in the town of Red Bluff. The case was tried before the .court, findings filed and judgment entered for plaintiff. Defendants made a motion for a new trial, which was denied, and this appeal is from the judgment and order denying the motion. There is practically ...
Views: 0
This appeal is from an order denying appellant’s motion to change the place of trial of said action from Los Angeles county, where it was brought to the county of San Diego, in which said corporation has its place of business. Two prior motions to change the place of trial had been made by the defendant corporation, and denied by the court below, and appeals were taken from each order. The first o...
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Action to recover $2,500 upon a policy of life insurance. The case was tried with a jury, and verdict rendered for plaintiff for the amount claimed. Judgment was accordingly entered, and from the judgment and order denying a new trial the defendant appeals. On January 21, 1893, the defendant, in consideration of a premium of $43.70, issued its policy of insurance by which it promised to pay Mathil...
Views: 2
There are three appeals in this case: First, from an order denying defendants’ motion “to set aside and vacate the sale of the mortgaged premises de*727scribed in plaintiffs’ complaint” (this motion is made on the ground that on a former appeal of the case to this court [128 Cal. 411, 60 Pac. 1034] the judgment of foreclosure was modified by directing a different sale from that provided in the ori...
Views: 0
This is an action against a physician to recover damages for the alleged injuries occasioned by his negligent and unskillful treatment of his patient, and for injuries resulting from the violation of his contract of em*638ployment in abandoning her case, and leaving her, in a critical period, without proper or any medical attendance. The case was tried by a jury, which rendered a verdict for plain...
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This is an action to recover $1,200 damages for alleged official misconduct by defendant McKernzie, as treasurer of the city of Fresno. The defendant James is sued as a surety on McKenzie’s official bond. Judgment went for defendants in the court below, and plaintiff appeals from the judgment and from an order denying a new trial. The alleged misconduct consists in the refusal by McKenzie to pay a...
Views: 0
The petitioner prays for a writ of mandate against the superior court of the city and county of San Francisco, asking that an order be made directing that court to try him upon a certain criminal charge therein alleged to be pending against him. The petitioner further asks that, if such relief be not granted, then that the court be ordered to hear and determine an alleged pending appeal taken by h...
Views: 0
This is an action to determine the ownership of two hundred and twenty-five shares of the capital stock of defendant trust company. Plaintiff claims the property as a gift from Priscilla Wilson in her lifetime. The cause was tried by the court, and judgment passed for defendant Pierce, as administrator, the trial court finding that there was no gift. The sufficiency of the evidence to support that...
Views: 1

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