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All Reporters → cal-lexis → Volume 1928

Opinions in cal-lexis Volume 1928

This is an appeal from an order directing the plaintiff, as father of his two minor sons, to pay forty dollars per month for their support. On October 7, 1912, the plaintiff was granted an interlocutory decree of divorce from the defendant on the ground of extreme cruelty. At that time the sons were about two and three years of age, respectively. No provision was made in the decree for the cust...
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This appeal was submitted upon an order to show cause, the respondent having presented and filed no brief. The action was one for damages for trespass, based upon two causes of action set forth in the plaintiff’s amended complaint. By the first cause of action the plaintiff complained of a trespass on the part of the defendant upon property of which the plaintiff was in peaceable possession, cons...
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THE COURT. This appeal was submitted upon an order to show cause, the respondent having failed to present or file a brief herein. The order appealed from was an order denying a motion for change of place of trial from the county of Los Angeles to the county of Fresno, the motion therefor having been based upon the ground that the action had been commenced in the wrong county and having been duly m...
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This appeal was submitted upon an order to show cause, no respondent’s brief being on file and none having been presented or filed pursuant to said order. The action was for divorce. The cause was tried upon its merits. At the conclusion of the trial the court made its findings of fact and conclusions of law in the plaintiff’s favor, wherein it awarded her the custody of the minor children, and i...
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This appeal was submitted upon an order to show cause, no respondent’s brief having been filed. The action was one for the establishment in this state of a judgment for alimony in an action for divorce in the superior court of the county of Okanogan, state of Washington. The defendant filed a general demurrer, which was overruled, and upon his failure to further answer judgment in the plaintiff’s...
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This appeal is from an order of the superior court in and for the county of Los Angeles by the terms of which a receivership applied for and granted ex parte to the defendant was set aside and annulled upon the application of the plaintiffs, made promptly upon being advised of the making and entry thereof. The plaintiffs, as appears from the record, made two such applications, the first of whic...
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This appeal was submitted upon an order to show cause, the respondents having presented and filed no brief. The appeal is on the judgment-roll. The action was instituted by the plaintiff to determine the ownership of 150 shares of the capital stock of the defendant Imperial Water Company Number Three, as represented by stock certificate No. 423. The plaintiff alleged that the Imperial Water Compa...
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This appeal was submitted upon an order to show cause, the respondents having presented and filed no brief herein. The action was one to foreclose a chattel mortgage upon certain furnishings of an apartment house building which had been leased by plaintiffs to certain lessees named Brown, who had executed a chattel mortgage to secure the payment of rent. The Browns sold the furnishings and assign...
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THE COURT. This appeal was submitted upon an order to show cause, the respondent having presented and filed no brief herein. This action was one to quiet title to certain real property. One of the defendants named therein was the Los Angeles Realty Syndicate, a defunct corporation, jurisdiction over which was obtained by service of process upon one of the former directors and then existing trustee...
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THE COURT. A hearing in bank was ordered in this cause after a decision thereof by department one of this court. Upon a further consideration of the cause upon such hearing we are satisfied with the decision of the department, and hereby adopt the same as the decision of the court in bank. Said decision reads as follows: "This appeal is from an order denying the demand of appellants for the change...
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This is an appeal by defendant from a judgment of conviction for the crime of embezzlement. Persuasive testimony offered by the prosecution in support of the charges filed against him showed the facts to be substantially as follows: *Page 31 In December, 1919, one James E. Fisher bought from Robert Marsh Company of Los Angeles four $1,000 bonds. In October, 1921, he made an unsuccessful attempt 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 37 [EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 38 The appellant was charged with the murder of Mary Lorenzo, the killing occurring upon a trip to Nevada, where, a...
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This appeal is from a judgment of conviction of the defendant upon a charge of murder and from an order denying his motion for a new trial. Upon the arraignment of the defendant upon such charge, had upon March 28, 1928, he waived time to plead and entered his pleas as follows: "(a) Not guilty as charged in the information; (b) Not guilty as charged in the information by reason of insanity." The c...
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The defendant was convicted on three counts of an information charging the crime of rape. The sufficiency of the evidence to sustain the verdict is not questioned. In fact, it could not be, for, as defendant in the court below, appellant voluntarily took the stand and admitted, without equivocation, the commission of each of the acts charged. The only point we deem it necessary to consider on this...
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THE COURT. This appeal was submitted upon an order to show cause, the respondents having failed to present or file a brief. The action was one to set aside certain conveyances of real property alleged to have been made by the defendant Francis D. Adams to his wife and co-defendant Gertrude B. Adams, upon the ground that such conveyances were in fraud of the rights of the decedent, William E. Tobia...
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This appeal questions the validity of a reassessment made by the City of Pasadena under a street proceeding authorized by the 1903 Street Opening Act (Stats. 1903, p. 376, amended; Stats. 1913, p. 429). The regularity of the proceeding in every respect other than as to the power of the city to order this reassessment is conceded. The facts are undisputed, but the parties draw opposite deductions t...
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The complaint in this action is in two counts. In the first the plaintiff sought to recover the balance due upon an open book account for goods, wares and merchandise sold by plaintiff to defendant in an amount of $1,427.78; the second count was for damages sustained by *96 plaintiff by reason of the negligent care given by the defendant to a consignment of wire bed-springs, shipped by the plai...
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This is an appeal by the defendant from a judgment against it for $10,473.25, in an action brought by plaintiff to rescind a contract for the purchase and sale of certain shares of stock in the defendant company. The evidence presents some conflicts, but the findings of the trial court are supported by the evidence and are to the following effect: That on or about the twenty-fifth day of August, 1...
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THE COURT. The petition of the respondent Pacific Gas and Electric Company for a rehearing in this cause was granted solely for the purpose of elaborating upon that portion of our opinion (269 P. 641) wherein it is determined that the application of the dependents of Harlan Fogarty for adjustment of claim was timely filed. In the petition for rehearing it is urged that we overlooked the "vital fea...
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THE COURT. In this case a hearing was granted after decision by the district court of appeal because of the earnest insistence of the attorney-general that the statute defining burglary in this state had been misconstrued. After a careful consideration of the authorities relied upon by *Page 113 petitioner, we are satisfied with the opinion of the district court of appeal, second district, hereto...
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This is an appeal by the defendant from a judgment against it in an action brought by Walter F. Lewis and Claire Lewis, his wife, to recover damages suffered by them by reason of injuries to the wife, sustained while she was swimming in the swimming pool of the defendant. The answer of defendant denied negligence in the particulars alleged in the complaint, and alleged that defendant was organized...
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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 120 On the twenty-first day of April, 1927, the appellants Philip Fenech, Sam Borg and Antonio Ciapparro entered into a contract with the city of Sacramento whereby they undertook and agreed to collect all wet garbage from the hotels, restaurants, hospitals a...
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An extended opinion does not seem to be required in the determination of this appeal as the plea of res judicata must be sustained and the action dismissed. [1] Plaintiffs, as the owners of certain real property, executed a note and deed of trust thereon to the defendant, who thereafter, upon due and regular proceedings had, caused the said trust to be foreclosed and the premises sold, defendant *...
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THE COURT. This appeal was submitted upon an order to show cause issued herein, no respondents' brief having been filed. The appeal is by the defendant from an order of the superior court in and for the county of Riverside denying the defendant's motion to change the place of trial of the action from the county of Riverside to the county of Los Angeles. The motion was based upon the notice, demand...
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THE COURT. By reason of an oversight this cause was prematurely submitted for decision and decided, in disregard of a stipulation of the parties allowing time for the *Page 132 filing of further briefs. Upon petition for rehearing this fact was brought to our attention and the decision (269 P. 925) was promptly set aside to permit of further briefing and particularly to allow respondent to urge a...
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This proceeding was brought by Frank Edson, as employer, and by State Compensation Insurance Fund, as his insurance carrier, to review and annul an award of the Industrial Accident Commission. Julio Landlin was a laborer and the employee in whose favor the award was made. On September 6, 1926, Landlin suffered an injury by being struck in his left eye by a flying nail. That the injury arose out of...
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This is an appeal by the plaintiff from a judgment against her, after a general demurrer to her complaint had been sustained without leave to amend. [1] The complaint seeks recovery of $4,000 upon a policy of life insurance issued upon the life of plaintiff's deceased husband. The question involved in the case is whether the defendant is liable for $2,000, the face of the policy, or for double tha...
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This is an appeal from a judgment in favor of plaintiff in an action to revive and foreclose a first mortgage on personal property. The defendant Ora T. Medlin was the owner of the personal property, which consisted of a tractor, farming implements, a harvested crop of hay and other personal property on his ranch in Stanislaus County. The mortgage referred to was executed on September 21, 1920, by...
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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 150 [EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 151 [EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE T...
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MEMORANDUM CASES. THE COURT. [1] The questions presented by the petition herein were fully considered in our discussion of cases S.F. No. 12707 to No. 12766, both inclusive, ante, p. 148 [273 P. 797], all of which were considered together in one opinion, this day filed. Upon the authority of what we said in our consideration of said cases considered in one opinion, and more...
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THE COURT. [1] For similar reasons as assigned in Boone v. Kingsbury,Surveyor-General of the State of California, etc., S.F. No. 12707, ante, p. 148 [273 P. 797], this day filed, the surveyor-general of the state is commanded to issue to petitioner, H.E. Shudde, a permit to prospect for oil and gas upon the tide and submerged lands described in his petition. The writ will therefore issue. Rehearin...
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THE COURT. [1] For the reason assigned and upon the grounds stated in our opinion this day filed, in which *Page 794 we considered together cases S.F. Nos. 12707 to 12766, both inclusive, ante, p. 148 [273 P. 797], the application of Charles M. Workman for a writ of mandamus commanding the surveyor-general of the state of California and ex-officio register of the state land office to issue to him...
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THE COURT. [1] For similar reasons and upon similar grounds as stated in the case of Charles M. Workman v. W.S. Kingsbury,Surveyor-General of the State of California, etc., S.F. No. 12728, ante, p. 148 [273 P. 797], this day filed, the application for the writ is denied and the petition is dismissed. Rehearing denied. Shenk, J., and Curtis, J., voted for a rehearing....
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THE COURT. [1] For similar reasons and upon similar grounds as stated in the case of Charles M. Workman v. W.S. Kingsbury,Surveyor-General of the State of California, etc., S.F. No. 12728, ante, p. 148 [273 P. 797], *Page 796 this day filed, the application for the writ is denied and the petition is dismissed. Rehearing denied. Shenk, J., and Curtis, J., voted for a rehearing....
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THE COURT. [1] For similar reasons and upon similar grounds as stated in the case of Charles M. Workman v. W.S. Kingsbury,Surveyor-General of the State of California, etc., S.F. No. 12728, ante, p. 148 [273 P. 797], this day filed, the application for the writ is denied and the petition is dismissed. Rehearing denied. Shenk, J., and Curtis, J., voted for a rehearing. *Page 797 ...
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THE COURT. [1] Upon the grounds and for the reasons stated in the opinion this day filed in cases S.F. Nos. 12707 to 12766, both inclusive,ante, p. 148 [273 P. 797], the application of petitioners herein is denied and the petition is dismissed. This order is made without prejudice to commence a proceeding in a court of competent jurisdiction for the purpose of determining such rights as petitioner...
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This appeal was submitted to the court upon a hearing to show cause, the respondents having presented and filed no brief. The appeal is from an order denying a motion to vacate and set aside a judgment rendered and entered by the trial court upon the failure of the defendant and her counsel to appear at the time fixed for the trial thereof. The facts as disclosed by the record show that on August...
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This is an appeal by the plaintiff from a judgment in favor of the defendant, C. S. Mead, on his cross-complaint in an action in claim and delivery. The defendant and cross-complainant was a distributor of Chevrolet automobiles in Pasadena. One I. H. Weaver was a retail automobile dealer located at San Gabriel. The plaintiff was engaged, among other activities, in purchasing and financing contr...
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This is an appeal by the plaintiffs from an order taxing costs. *Page 7 The main action is one to determine conflicting claims to water rights. It was commenced on July 15, 1916. Upon issue joined two trials were had. The first trial was commenced on October 16, 1917, before the Honorable W.B. Wallace, since deceased. After the cause was submitted for decision the court indicated that judgment wo...
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THE COURT. This appeal was decided in department and thereafter a motion to hear the same in bank was granted. At the time of the granting of said motion we were in doubt as to the correctness of that portion of the department opinion which held that the judgment was valid, notwithstanding it exceeded the amount alleged in the complaint to be due from the defendants. [1] By the complaint the plain...
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This appeal is from a judgment in favor of plaintiff and against defendants. The defendant Doolittle alone has appealed, and filed a brief in support of his contention that the judgment is erroneous. No appearance herein has been made by the respondent, and we have not been favored by any brief or points and authorities in her behalf. [1] The sole contention of appellant is that the evidence is no...
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Action brought to recover the amount due on a promissory note, given as part payment of certain real property sold by the plaintiff to the defendant E.H. Miller, who will be referred to hereafter as the defendant. Alice A. Miller, the other defendant, is his wife, and her only interest in said real property is by reason of this relationship. *Page 23 By an amended answer and cross-complaint defen...
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Action to quiet title to real property. W.G. Logan and Elsie M. Logan were at all of the times herein mentioned husband and wife. On the twenty-seventh day of January, 1919, as such husband and wife, they entered into an agreement with Elmer and Georgia M. Smith, whereby they contracted to purchase said real property from the *Page 27 Smiths. This agreement was somewhat complicated, but it is not...
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This appeal is from a judgment of conviction of the defendant upon a charge of murder in the first degree, based upon the verdict of the jury finding him guilty of that offense without recommendation, and from an order denying the defendant a new trial. The undisputed evidence in the case showed that the defendant and his victim were husband and wife and that they had been separated some time befo...
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Grant MeOartney was, on the twenty-eighth day of December, 1923, and for some years prior thereto had been, a licensed real estate broker under the provisions of an act of the legislature of this state (Stats. 1919, p. 1252). On that day the plaintiff deposited with him the sum of two thousand dollars, which sum of money he was to use in making the first payment on a piece of real *35 property ...
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Appeal by defendant Addie I. Tryon from an order refusing to change the place of trial from the county of Sacramento to the city and county of San Francisco. She supports her demand by an affidavit of merits containing the averment that she is a resident of the city and county of San Francisco. Defendant E.H. Tryon consented to the making of said application by his co-defendant. The defendant Brow...
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[1] This appeal is from an order of the superior court of the city and county of San Francisco granting the motion of the plaintiff and cross-defendant to set aside an order of said court entering the default of said plaintiff and cross-defendant for failure to answer the cross-complaint, and from the further order of said court dismissing the action on the ground of failure on the part of the pla...
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This appeal is from a judgment in favor of the defendants after motion for nonsuit granted. The plaintiff was employed as an agricultural laborer by the defendants, and during and in the course of his employment was directed to assist others who were engaged in clearing out chicken manure from a chicken-house and placing the same in boxes, which boxes, having been placed upon a wheelbarrow, the p...
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The Crestmore tract is a real estate subdivision situated in the city of Los Angeles, containing a large number of lots, the exact number of which is not shown by the record, but it is apparent that they exceed sixty in number. All the lots in said tract had been originally sold subject to restrictions against subsequent sale to or occupancy by persons other than those of the Caucasian race. These...
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This action was commenced by the plaintiffs, eighteen in number, to quiet the title of themselves *Page 56 and each of them in and to the use of the waters of the Kaweah River, located mainly in the county of Tulare, and to restrain a threatened diversion of such waters to the injury of said plaintiffs and each of them. The plaintiffs sought and obtained from the superior court in and for the cou...
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This is an action to recover damages for detriment to a shipment of dried fish. The complaint pleads a contract between the parties whereby defendant agreed to carry said shipment under refrigeration from Boston to San Francisco and its failure through negligence so to do, as a result of which plaintiff sustained damages in the sum of $1,738.51. The answer denies these averments and sets up as a d...
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THE COURT. [1] The respondents move to affirm the judgment appealed from upon the ground that the appellant has failed to print in her opening brief or any supplement thereto, in accordance with the requirements of section 953c of the Code of Civil Procedure, any part of the record herein sufficient to justify a reversal of said judgment. At the time of the filing of respondents' notice of motion ...
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THE COURT. Respondents move to dismiss the appeal and to affirm the judgment and order appealed from. The motions are identical, except as to the relief requested, and respectively specify as grounds therefor that the several points urged upon the appeal have heretofore been determined by this court adversely to the appellants' contentions, that the appeal is frivolous and prosecuted for purposes ...
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THE COURT. After a further and more complete consideration of the opinion herein rendered by the district court of appeal, we are of the opinion that it correctly states the views of this court upon the questions therein determined. This opinion, written by Justicepro tem. Wood and concurred in by Presiding Justice Conrey and Justice York, we hereby adopt as the opinion of this court, and it is as...
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This is an appeal by the defendant from a judgment against him for five thousand dollars, damages for personal injuries sustained by plaintiff while riding an "unbroken" mule upon a stock ranch owned by the defendant. [1] J.M. Streshley, the defendant, was engaged in the business of conducting a ranch, upon which he raised hay and cattle, in Willow Creek Valley, Lassen County, and employed a numbe...
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The defendants were the owners as tenants in common of an improved lot in St. Francis Wood, San Francisco. The plaintiff desired to purchase the property, and, under date of October 19, 1926, signed and delivered to the defendant Felix H. Spitzer a written offer, as follows: “$16,000, payable $1,000 down, $1,000 January 1st, 1927, balance payable at $100 or more per month. ... I will deposit $1,0...
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This action was commenced by the plaintiff Conradine Ritterbusch and her two children on February 23, 1921, against the defendant, City of Pittsburg, a municipal corporation of the sixth class, to recover damages for the death of Carl D. E. Ritterbusch, husband and father respectively of the plaintiffs, alleged to have been caused through typhoid fever contracted by reason of the negligence of th...
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This action was one for personal injuries as a result of a collision between an automobile owned by the plaintiff and in which she was riding, according to her contention, as a guest, and one owned and operated by the defendant, John Volfi. The collision occurred at the intersection of 36th Street and 4th Avenue, in the city of Sacramento, which cross each other at right angles. Sacramento Boul...
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THE COURT. In this action, the trial court gave judgment upon the pleadings in favor of the plaintiffs and the defendant appealed from the judgment. The judgment was affirmed by the district court of appeal, third appellate district, Plummer, J., writing the opinion. Because of the *Page 104 earnest insistence of appellant in her petition for a hearing by this court, that the district court of ap...
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This appeal was taken from that part of a judgment entered in the superior court of the county of Fresno, to which court the questions involved in this appeal had been transferred by the superior court of the County of Tulare for decision, wherein said superior court of the county of Fresno refused to tax as costs of suit an attorney fee in favor of W.W. Middlecoff, Esq., in the sum of $11,980.47 ...
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This is an appeal by the plaintiff from a judgment against it in an action to recover upon two promissory notes executed and delivered by the defendant in the sum of $4,020, each, due in six months from the date thereof (September 13, 1923), with interest at the rate of eight per cent per annum. The action was tried upon the complaint and the answer and counterclaim of defendant, which set up the ...
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This is an appeal by plaintiff from a judgment denying recovery upon a promissory note signed by the defendants. The complaint is the usual one upon a promissory note and sets forth the note, dated Hanford, California, January 30, 1924, payable one year from date, in the sum of $5,550, with interest at the rate of seven per cent per annum and providing for the payment of attorney's fees in the eve...
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The plaintiff herein brought an action against the executrix of the estate of Robert E.L. Goode to recover upon a rejected claim upon an account for legal services of various sorts alleged to have been performed for and on account of the decedent during the years from 1914 to 1923, and aggregating the sum of $2,962.82, and which the plaintiff in his complaint alleges to have been an open, mutual, ...
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This is an appeal from a judgment for $5,000 in favor of the plaintiff in an action for damages for the breach of a contract to sell certain scrap or salvage material. Prior to June, 1925, the defendant maintained and operated a meat packing plant in South San Francisco. The plant was destroyed by fire during that month. At that time the plaintiff was a dealer in scrap-iron and metals, with off...
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In this action the plaintiff sought to recover certain sums alleged to be due to it from the defendants upon the stockholders' liability of said defendants and each of them as stockholders of The Luthy Company, a California corporation, which had been organized for the purpose of manufacturing a certain automobile storage battery, and which had entered into certain agreements with the plaintiff, a...
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In this action to recover damages for personal injuries received by plaintiff as the result of collision between an automobile in which she was riding and a street-car operated by defendant transit company, defendant has appealed from judgment in her favor upon three grounds, to wit: Insufficiency of the evidence to justify the verdict and judgment, errors in instructions and prejudicial misconduc...
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Petitioner seeks through this proceeding the issuance of a peremptory writ of mandamus directing that respondent Superior Court amend the findings of fact, conclusions of law, and interlocutory judgment entered in a certain condemnation suit in which petitioner was a defendant. The complaint in said condemnation action was filed in September, 1925. In October, 1926, the referees appointed to make ...
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Application for writ of prohibition. By this proceeding the petitioner, United Security Bank and *Page 168 Trust Company, seeks to restrain and prohibit the respondent Superior Court and the Honorable James L. Allen, as judge thereof, from further proceeding with the trial of that certain action entitled Security Trust Savings Bank v. Security Bank Trust Company and United Security Bank and Trus...
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Appeal by defendants Benjamin and Helen Fireman from judgment for plaintiff in an action to foreclose, on certain real property owned by them, a mechanic's lien for building materials furnished to defendant Sexton, the general contractor employed by his said co-defendants to repair, alter, and add to the building situate on said premises. The facts as shown by the evidence and found by the court a...
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This matter having come on regularly for hearing before this court upon the petition of the appellants for a writ of mandate to be directed to the Superior Court and the Judge thereof, respondents herein, requiring the respondents to settle and approve the bill of exceptions of the appellants and petitioners herein in the case of TJna Margaret Locke Paddon v. William Locke Paddon et al., now ...
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This appeal is from a judgment in the plaintiff’s favor in an action for damages for injuries received by him through a collision between the delivery truck of the defendants and the bicycle upon which the plaintiff was riding, upon one of the public streets of the city of Eureka. The defendants in their answer denied any negligence on the part of the driver of their truck, and alleged contributo...
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This cause was placed upon a special calendar upon order to show cause, it appearing that no respondents' brief has been filed herein, and was thereafter ordered submitted. An examination of the appellant's brief convinces us that the appeal is without merit. The action was one instituted in the superior court in and for the county of Monterey by one tenant in common of a piece of real estate, aga...
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This was an action for divorce. The defendant being served with process failed to appear. His default being entered the cause was tried on September 17, 1926, and an interlocutory decree entered in plaintiff's favor to the effect that she was entitled to a divorce and the custody of the minor child of the parties, and further entitled to an award of a monthly sum of thirty dollars to be paid by th...
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In this case the defendants made a motion for a directed verdict, which motion was denied and the case was thereupon submitted to the jury. Thereafter the jury rendered a verdict in favor of the plaintiff, and the court of its own motion set aside the verdict and ordered judgment in favor of the defendants. From this order this appeal was taken. [1] By section 629 of the Code of Civil Procedure, e...
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Appeal by plaintiffs and cross-defendants from a judgment against them, ordering them to remove a eucalyptus tree which is growing on the boundary line between the property of the plaintiffs and the property of the defendants. The action was commenced by plaintiffs, who alleged that the tree in question was a large eucalyptus tree, having a circumference of approximately eight feet; that it was pl...
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This action was instituted for the purpose of partitioning certain ranch property and determining the respective interests of the parties in and to the growing crops thereon. Upon submission of the cause after trial and with consent of all parties expressed in open court, an interlocutory decree was entered by which said property was duly partitioned and divided, 82/100ths thereof to appellant and...
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THE COURT. This is an appeal from an order denying plaintiffs' motion for a change of trial of said action, made upon the ground of the convenience of witnesses. Plaintiffs brought the action in the county of Sonoma, the county in which the defendants reside. By their motion they sought to have the place of trial changed to the county of Alameda, in which county plaintiffs reside. [1] A motion for...
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This is an appeal by plaintiff from an order setting aside, upon motion of defendants, a default *Page 203 judgment entered in plaintiff's favor. The action was one whereby plaintiff sought to recover an unpaid balance of ten thousand three hundred dollars alleged to be due him on a contract made with defendants for the alteration of an apartment house owned by defendants, and to foreclose a mech...
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The petition for an order transferring this cause after decision by the district court of appeal, second appellate district, division one, to this court was granted May 3, 1928. At that time we had before us a petition requesting the transfer of the cause entitled O.E. Vaughn v. Pine Creek Tungsten Co., aCorporation, to this court after decision by said district court of appeal, 89 Cal. App. 759 [...
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Defendant, Petroleum Midway Company, appeals from a judgment for plaintiffs in the sum of $7,79-9.01 entered upon a complaint in the form of a count for money had and received by defendant for the use and benefit of plaintiffs. The case was tried upon an agreed statement of facts, from which it appears that the sum sued for was claimed by plaintiffs as due and owing to them as royalty under the t...
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THE COURT. At the time this action was before the district court of appeal, second district, second division, each of the three justices thereof prepared and filed separate opinions, in one of which the justice writing the same dissented from the conclusion reached by his two associates in the respective opinions prepared by them. It was largely due to this diversity of sentiment among the members...
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[1] Plaintiff Samuel D. McIntyre and some sixty-eight others have joined as plaintiffs to obtain an injunction and declaratory relief concerning certain water rights secured to them by contract. The proceeding is brought under section 1060 et seq. of the Code of Civil Procedure. That section provides, in substance, that any person interested under a deed, will, or other written instrument, or unde...
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The question presented by this appeal is whether the action brought against the stockholders of a corporation upon the personal liability provision of section 322 of the Civil Code for compensation for services rendered said corporation under a contract entered into by said corporation and the claimant is barred by the provisions of section 359 of the Code of Civil Procedure. The trial court held ...
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This is an appeal from a judgment in the plaintiff's favor in an action for claim and delivery whereby he was awarded possession of a motor-truck or its value if delivery could not be had in the sum of $3,000, together with damages for the alleged unlawful detention thereof in the sum of $2,000. On September 14, 1923, the evidence herein shows the plaintiff to have been the owner of a certain moto...
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Suit to impress a trust upon personal property consisting of shares of stock in various companies, distributed to respondents in an estate. Certain phases of this matter have been before this court on former appeals. (Estate of Simonton, 183 Cal. 53 [190 P. 442]; Simonton v. Los Angeles Trust Savings Bank,192 Cal. 658 [221 P. 368].) The essential facts are not in dispute and are as follows: Georg...
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This is an application for an alternative writ of mandate to compel the respondent Superior Court to set for trial a cause pending in said court entitled, “Herbert M. Baruch Corporation v. Hartford Accident and Indemnity Co. et al.,” on the asserted ground that the cause is at issue and has not proceeded to a valid judgment. The cause had theretofore been set for trial on March 23, 1928, and ...
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This is a second application to this court for a writ of mandate to compel the Board of Supervisors of Contra Costa County to submit to the electors of said county, pursuant to the initiative provisions of the constitution and section 4058 of the Political Code, a proposed ordinance, the purpose of which is to grant to the Northern California Development Company, a corporation, a franchise to cons...
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Appeal from order settling the accounts of respondent as executrix. Otho S. Houston died May 8, 1917. *Page 278 He left surviving him four minor children, the oldest of whom was eighteen years of age and the youngest eight years, and his widow, respondent herein, whom he named in his will as the sole beneficiary and executrix of his estate. Proceedings for the probate of his estate were duly inst...
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This is an appeal from a judgment of nonsuit in an action on a claim against the estate of Ernest L. Hueter, deceased. The plaintiffs alleged that on or about the seventeenth day of October, 1903, Ernest L. Hueter borrowed from Ellen Bass the sum of $18,000 and agreed in writing to repay the same, as evidenced by a promissory note of which the following is a copy: "18,000. ...
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This appeal was taken by the contestants of the will of John Luckenbach, deceased, from a judgment of nonsuit entered against them in a contest instituted after the admission of said will to probate. Contestants are two brothers and two sisters of the decedent. As grounds for revoking the probate of said will, which devised and bequeathed the testator's entire estate to his wife, Lena Luckenbach, ...
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THE COURT. A petition for a hearing herein of this appeal was granted after a decision thereof by the district court of appeal, second district, second division. It was granted mainly for the reason that a similar petition was granted on the same day in the case of Security Trust Savings Bank v. Carlsen et al., post, p. 309 [271 P. 100], a case which arose out of the same controversy as is involv...
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An opinion in this proceeding was rendered by the district court of appeal, second district, second division. Thereafter we granted a motion for a hearing thereof in this court. The following portion of said opinion rendered by the district court of appeal we hereby adopt as the opinion of this court: "This action is one in interpleader. The appeal is from an order granting a motion for nonsuit ma...
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THE COURT. The above-entitled actions, consolidated for purposes of trial and appeal, were brought to recover money alleged to have been misappropriated by the defendant Edwards while serving simultaneously as tax collector and treasurer, respectively, of the plaintiff irrigation district. That there existed a shortage of $18,612.58, the amount sued for in each complaint, in Edwards' accounts at 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 330 Plaintiffs instituted an action to recover damages for injuries to their property occasioned by the "blowing-out" of an oil-well during drilling operations by defendant. The trial court, sitting without a jury, gave judgment in favor of plaintiffs, and de...
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Action brought to recover the sum of $601.02 from the defendant bank, which amount plaintiffs allege they had deposited with said bank to their credit. [1] The defense by the bank is that it paid out said sum upon two checks drawn by the plaintiffs. The evidence shows that the plaintiffs had a checking account with defendant at least in an amount equal to the amount sued for. The plaintiffs were e...
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This appeal presents a question respecting community property rights between a husband and wife and third persons. Appellants argue strenuously for their position, but admit their inability to find authority to support it. Respondent, of course, does not aid them in this difficulty, but contends that the appeal must be dismissed "without hesitation." However, notwithstanding this situation, we are...
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This action was instituted to foreclose a materialman's lien and to recover on a statutory bond given by the contractors. The appeal is taken on the judgment-roll alone. It appears from the findings that the defendants Longshore, as owners, entered into a contract with the defendants Thompson and Stowell, as contractors, for the erection of a building on the owners' lot in the city of Redondo *Pag...
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The petitioners herein applied for a writ of review to be directed to the Superior Court in and for the city and county of San Francisco, requiring said court to certify the record and proceedings thereof in the matter of the estate of John T. Brophy, deceased, pending in said court, with a view to having it determined whether or not the action and orders of said court in certain matters and proce...
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The plaintiff instituted this proceeding in the Superior Court in and for the county of Los Angeles, seeking the issuance of a writ of mandate directed to the department of building and safety of the City of Los Angeles through the superintendent of said department, named with the said City of Los Angeles as the respondents in his petition for said writ, to compel said respondents to restore him t...
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The plaintiff, a judgment creditor of the Elkhorn Oil Company, a corporation, organized, existing, and doing business under the laws of this state, filed this *Page 375 creditor's action against the defendants as stockholders of said corporation to recover the amount of a judgment rendered against said corporation and in favor of plaintiff's assignor. In the main the facts out of which this contr...
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THE COURT. Plaintiff instituted this action to recover the residue or balance of a loan fund remaining in defendant's hands, the loan having been theretofore arranged for and negotiated by one George Phillips and wife to meet progress payments on certain improvement work undertaken by them. Plaintiff's claim to this balance is founded upon what is described in the complaint as a "draft" drawn by P...
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The plaintiff herein instituted an action for divorce against the defendant, charging cruelty and praying for a decree of divorce, for the custody of the three minor children of the marriage, for the assignment to the plaintiff of her equitable share of the community property, and for the payment of reasonable alimony, counsel fee, and costs. The complaint is sufficient in form and substance to j...
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This action was instituted by the plaintiff for the rescission of a certain agreement between the *Page 388 plaintiff and the defendant upon the ground of fraud and deceit on the part of the latter in procuring such agreement and the payment of certain moneys thereunder, which the plaintiff seeks also to recover in the form of damages for such fraud and deceit. The cause proceeded to trial upon t...
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This appeal is prosecuted by the plaintiff from a judgment in favor of the defendants in an action instituted by the plaintiff for the purpose of procuring an injunction preventing the respondents from proceeding with the sale of certain property of which the plaintiff *391 was the owner at the time of entering into certain transactions with one Paul G. Moorhead relating to the erection of a bu...
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The plaintiff and appellant herein commenced this action on his own behalf and also in his capacity as guardian of the person and estate of William H. Conrad, his minor son, for the purpose of having it declared that a certain sum of money which constituted the estate of one La Nita Conrad, deceased, who had formerly been the wife of the plaintiff, had been held by her, and was being held by her ...
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Action for personal injuries sustained by plaintiff, a minor, as the result of explosion of a toy cannon. Plaintiff, a fifteen year old normal boy, in the last term of junior high school, purchased thirty-five cents worth of black gunpowder at defendant's hardware store in Oakland, *Page 397 California, stating after purchase that he intended to use it in a toy cannon, although the evidence is in...
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This action for malicious prosecution was instituted by the plaintiff and respondent against the defendants who are the appellants herein, and certain other persons as to whom the action was subsequently, on motion of the plaintiff, dismissed. The plaintiff in his complaint alleged that the defendants entered into a conspiracy to wrongly and falsely charge the plaintiff with the crime of petit lar...
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Petition for habeas corpus. Petitioner is held in restraint under and by virtue of commitments based on three several judgments rendered by the municipal court of the city of Los Angeles, certified copies of which, together with certified copies of the complaint in each referred to, are attached to the return to the writ. (Other than treating the petition for the writ as a traverse, the petitioner...
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Complaints were filed against the petitioner in the municipal court of the city of Los Angeles, charging him with the unlawful possession of intoxicating liquor and the unlawful sale of intoxicating liquor, after prior convictions of similar offenses, all in violation of the provisions of the Wright Act (Stats. 1921, p. 79). Upon arraignment, the defendant pleaded guilty to the offense of the sale...
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This is an appeal from an order of the superior court, state of California, in and for the county of San Bernardino, denying plaintiff’s motion to set aside a judgment rendered in said cause in 1920, in favor of defendants, quieting their title to certain mining land and enjoining plaintiff from interfering therewith. The motion also sought to set aside certain contempt proceedings against the at...
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This is an appeal by the plaintiff from a judgment against it in an action to recover seven thousand two hundred dollars, the sum of installment payments alleged to be due under a contract entered into between the parties. In 1920, the contract, which forms the subject of this action, was entered into. It recited that the defendant was engaged in the general hotel business in the county of Santa B...
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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 428 The petitioners are asking for a writ of mandamus against the Board of Public Works of the City and County of San Francisco requiring said board to grant the application of petitioners for a permit to construct upon certain real property belonging to peti...
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The defendants, Chester C. Kempley and Guy Selleck, district attorney and assistant district attorney, respectively, of the county of San Diego, were charged and convicted of the crime of soliciting and accepting a bribe. They appeal from the judgment of conviction and from an order denying their motion for a new trial. *Page 443 On October 7, 1926, the grand jury of said county returned an indic...
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This appeal is by Edgar Lapierre from judgment of conviction and order denying his motion for a new trial. Appellant and one Leo Archambault are brothers-in-law, Gabrielle Lapierre, the wife of appellant, being the sister of Archambault. These three persons were jointly charged on the thirteenth day of January, 1928, in the superior court of Alameda County by the district attorney with the crime o...
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This is an appeal by the defendant Gabrielle Lapierre from an order denying a new trial, and from the judgment convicting her of manslaughter for her participation in the murder of William J. Davis, a police officer who was shot and killed on January 3, 1928, by her husband, Edgar Lapierre. Appellant, her husband, and one Leo Archambault, were jointly tried on one indictment and duly convicted on ...
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THE COURT. The appellants and cross-complainants herein have moved this court for an order which would have the effect of extending the lien of an attachment issued and levied upon the real property of the plaintiff and respondent herein at the time of the filing of the cross-complaint in this action and the lien of which attachment is about to expire under the provisions of section 542a of the Co...
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THE COURT. [1] This is a motion to dismiss an appeal prosecuted by the defendant surety company from a judgment entered in accordance with the provisions of sections 1305 and 1306 of the Penal Code as amended in 1927 (Stats. 1927, pp. 1385, 1386), following upon the forfeiture of certain bail bonds furnished by the appellant under the provisions of section 1278 of the same code (Stats. 1927, p. 13...
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There is presented herein a motion by the plaintiff to dismiss an appeal from an order granting a new trial. The motion is made under Rule Y of this court which provides, in part, for the dismissal of an appeal if the transcript to be used in support thereof be not filed within time. Defendants’ inability to procure a transcript is due to the trial court’s refusal on May 17, 1928, to certify to t...
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Mandamus against the Railroad Commission to compel it to issue its permit for the issuance of certain stock. Petitioner, a Wyoming corporation, is now, and since November, 1911, has been engaged in generating, transmitting, and distributing electrical energy in this state. It is a public utility electrical corporation as defined by section 23 of article XII of the constitution and section 2 of the...
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Defendants appeal from judgment in favor of plaintiff in an action involving an alleged fraud on their part in accepting from plaintiff certain real property in exchange for a sum of money and some practically worthless stock. The complaint, with its amendment, alleges that on February 4, 1925, plaintiff, the owner of said real property, which was of the reasonable value of $6,500, subject to a $1...
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The question of the sufficiency of the evidence to support the findings and judgment presents the *Page 493 sole issue for our determination. The appeal is by the interveners from judgment for plaintiffs in an action to recover upon a promissory note secured by a second chattel mortgage on furniture in a court dwelling-house. Both note and mortgage were executed by defendants L.B. Beldt and Rena ...
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THE COURT. This is an appeal by certain of the above-named defendants from a judgment entered for the plaintiff *Page 498 in an action instituted to recover the sum of $4,090 from the defendant Anglo-California Securities Company. The action was tried upon an agreed statement of facts and upon the testimony of but one witness. It appears that Calvin M. Smith, now deceased, had entered into an agr...
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This appeal involves the right to letters of administration upon the estate of Anna B. Mercer, deceased, and, as a necessary consequence, the right of succession to that portion of her estate which was formerly the community property of herself and her predeceased husband, William L. Mercer. The facts are not in dispute. On and prior to June 9, 1873, and for thirty-five years thereafter, the above...
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This is an action to enforce specific performance of the option clause contained in a written agreement of lease and option entered into by defendant as lessor with plaintiff as lessee, which provided, in part, as follows: "That the said Lessor has letten . . . and the said Lessee has hired and taken . . . Lots (describing lots 11-18, inc., Los Angeles county) . . . for a period of two years . . ....
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This is an appeal by the defendant from a judgment in favor of the plaintiff in the sum of $6,000 for the death of the infant son of plaintiff, who was drowned in a syphon at the bottom of an irrigation ditch belonging to the defendant. The defendant owned certain irrigation canals and ditches in Contra Costa County. One of its canals was approximately ten miles long and crossed under various road...
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This is an appeal by defendants from a judgment against them for $20,000 in an action for personal injuries suffered by the plaintiff as the result of an automobile collision at the intersection of Third Avenue and East Eleventh Street, in the city of Oakland, California. The plaintiff was riding in a Ford coupe driven by her chauffeur. This automobile was proceeding south on the west side of Thir...
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Petitioner seeks a writ of mandate to compel the respondent court and judge to grant a motion, duly made in the court below, for substitution of attorneys in proceedings relating to the probate of the last will and testament of Leon Morrison, deceased. [1] An alternative writ was granted, and the respondents interposed a general and special demurrer to the petition and, at the same time, filed an ...
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The petitioner is held in custody by the warden of the state prison at San Quentin under and by virtue of a commitment issued out of the superior court of the county of Alameda. This commitment was issued upon a judgment of conviction of petitioner of the crime of fraudulently making and uttering a check upon a bank without sufficient funds to meet the same, a felony, as defined by section 476a of...
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This action was commenced by the plaintiff for the recovery from the defendant of the sum of $300,000, with interest thereon at the rate of seven per cent per annum from the twelfth day of January, 1923, and for her costs of suit. The plaintiff's cause of action is based upon certain written agreements made and entered into between herself and the defendant and which are attached as exhibits to he...
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This is an appeal by the defendant Wilson from a judgment against him in an action brought to recover $3,000 alleged to be due for money paid to defendant Cokely, a realtor, as agent for defendant Wilson, on account of the purchase of real property. Defendant Wilson, the owner of the real property, refused to execute a deed conveying the same to plaintiffs. Wilson offered the sum of $600 to plaint...
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In this action judgment was rendered and entered upon a directed verdict by a jury in defendant’s favor. The action was one commenced by the plaintiff for the recovery of a sum of money alleged to be due from the defendant to the plaintiff as the result of a transaction for the sale and delivery by plaintiff to defendant of 3,903 sheep, for which it was alleged the defendant agreed to pay the sum...
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The plaintiff, as special administrator of the estate of Marianna B. Latronica, deceased, commenced this action against the defendant for the purpose of having it established that a partnership existed between the deceased and the defendant, commencing in January, 1911, and continuing to the time of the death of said deceased, on or about February 19, 1925, and for an accounting between the defen...
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This is an appeal from a judgment in the plaintiff’s favor in an action for damages against the defendant for alleged negligence in the maintenance and operation of a certain ditch across the lands of the plaintiff, causing a seepage of water from said ditch, resulting in the killing of certain cherry trees growing upon the plaintiff’s land in the vicinity of the ditch. The cause was tried before...
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Plaintiff sued to recover damages for personal injuries sustained by him on July 3, 1925, when a motorcycle upon which he was riding as the guest of one Raymond Flores, who was driving said motorcycle, collided with an automobile driven by defendant at the intersection of Fulton and Buchanan Streets in the city of San Francisco. The jury returned a verdict for plaintiff for fifteen hundred dollars...
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This appeal was taken by defendant Clara Huene from a judgment for plaintiffs in an action brought by them to recover a commission as real estate brokers for securing a lessee for an apartment house building which was being constructed upon premises in the city of Los Angeles owned by said defendant. The transaction was never consummated because of the refusal of the prospective lessee to accept a...
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This appeal is from a judgment in favor of the plaintiff and against the defendant, a physician and surgeon, in an action wherein the plaintiff sought to recover damages from the defendant for an alleged unskilful surgical operation, said judgment having been rendered and entered after a trial before a jury, which returned a verdict in favor of the plaintiff for the sum of ten thousand dollars, a...
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This appeal is from an order of the superior court of the county of Sonoma, sitting as a probate court, admitting to probate the purported will and codicil of Eliza Cook, deceased, and also from the order of said court granting the motion of proponents to strike out and dismiss the contest to said will filed by contestants. A petition for the probate of said purported will and codicil by responden...
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Action to foreclose mortgage. Judgment in favor of plaintiffs from which two of the defendants, John A. and Clara H. Gordon, appeal. Said defendants, the appellants herein, appeared in said action and filed an answer to the complaint. The plaintiffs thereupon moved to strike out portions of said answer on the ground that the same were sham, irrelevant, and immaterial, and also filed a demurrer to ...
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The defendant was charged with the murder of Rose Lewis on April 29, 1928, in the county of Alameda. The jury found him guilty as charged and fixed the extreme penalty. He appeals from the judgment and from an order denying his motion for a new trial. The case is submitted for decision on the transcript alone. On and prior to the day of the homicide the deceased was residing at the home of a Mr...
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The defendant and appellant herein was charged by information with the crime of murder, alleged to have been committed on the fourth day of December, 1927. The information was in two counts, in the first of which the defendant was charged with the murder of one Edna Artist, and in the second count of which he was charged with the murder of George Mace Artist, the two decedents being husband and w...
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This is an appeal from an order settling the sixth account of W.F. Chipman, trustee, in the matter of the estate of Josephine A. Phelps, deceased, and particularly from those portions of the order directing the transfer of trustee's fees and attorney's fees from charges against income to charges against principal and directing the trustee to make the payment of $12,950.27, as income, to Eugenie H....
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This appeal was taken from a judgment of nonsuit entered at the close of plaintiff's testimony upon motion of defendant. Plaintiff sued to recover damages for personal injuries received when she was struck by defendant's automobile while she was crossing from the sidewalk on the northerly side of Hermann Street, a few feet west of the point where the lines of Market and Hermann Streets meet, to a ...
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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 631 Plaintiff appeals from a judgment for defendants entered after defendants' demurrer to plaintiff's amended complaint has been sustained without leave to amend. The complaint which the court below held did not state a cause of action sets forth the followi...
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On January 5, 1923, when this action was commenced, the plaintiff was the owner of lot 15, block 1, Hillcrest, in Daly City, San Mateo County. At the same time the defendant was the owner of the adjoining lot 16. In 1914 a two-story building was constructed on the defendant's lot. Subsequently and prior to May 1, 1917, this building was reconstructed and added to on the side of and adjoining the p...
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THE COURT. Upon the very earnest insistence of appellants that the decision of this case by the district court of appeal, affirming the judgment of the trial court, did not correctly state the law and had done an injustice to the appellants, a hearing was granted by this court to enable it to carefully study the record upon appeal and the contentions of the parties with reference thereto. After ca...
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[1] This appeal is by the defendant from an order of the trial court granting a new trial in an *Page 653 action instituted by the plaintiff for the condemnation of certain property owned by the defendant and sought to be taken for a public use. The complaint was framed upon the model provided for in section 1244 of the Code of Civil Procedure, which does not require an averment in such complaint...
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This appeal is taken from a judgment for plaintiff in an action of ejectment to recover the possession of certain real property in the city of Watts, county of Los Angeles, this state. Plaintiff sued as executrix of the estate of Jennie C. Hurd, deceased. Defendant purchased said real property from said Jennie C. Hurd in 1912, and as a part of the purchase price thereof executed a promissory note ...
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We are called upon to determine whether the findings and judgment in this case have support in the evidence. Having thoroughly examined the record, we find that testimony upon the disputed questions of fact is about as acutely conflicting as it could be. This conflict the trial court resolved in favor of defendants, and its action will be upheld. [1] Plaintiffs sued to enforce their contractors' l...
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This is an appeal from an order denying the defendant's motion to discharge an attachment. Three *Page 671 causes of action are set forth in the complaint. The first seeks to recover the sum of $4,110 as the reasonable value of services alleged to have been rendered by the plaintiff in preparing and drafting certain plans and specifications ordered and accepted by the defendant. The second is for...
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This is an appeal by the defendant from an order denying his application to have the care, custody, and control of Frank Strawn, aged ten, and Mary Jane, aged eight, the minor children of the parties, transferred from the plaintiff, their mother, to the defendant. [1] The appeal is based upon the contention of the defendant that the evidence is insufficient to support the conclusion of the trial c...
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This appeal is controlled by the proper interpretation to be given a renewal provision in a lease of real property. The action is in unlawful detainer. The prayer is for restitution of the premises and for triple rental. The court directed a verdict for restitution of the premises to plaintiff and submitted to the jury the sole issue of damages for the alleged unlawful withholding thereof. Judgmen...
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The plaintiff, Pacific Ready-Cut Homes, Inc., brought two actions against the defendants Peter Peterson, Nora Peterson, and L. L. Law to foreclose mechanics’ liens. The defendants Peterson answered and also filed a cross-complaint wherein they sought to recover from the plaintiff and its bondsman, Standard Accident Insurance Company, certain damages alleged to have been sustained by them by reaso...
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Pacific Ready-Cut Homes, Inc., brought five actions to foreclose mechanics' liens for lumber and materials furnished by it to the defendants C.W. Seeber, Williston Meyfarth, Cora Zumwalt, Alice M. Brown, and C.W. Brown as owners, respectively, in said actions. H.O. *Page 692 Ehlen, a plumbing contractor, was plaintiff in six actions brought to foreclose mechanics' liens for plumbing labor and ma...
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Plaintiff, claiming to have performed services for defendant as a mining engineer, mine manager, and superintendent, filed his complaint setting forth three causes of action. By the first and third counts he sought to recover under a contract in writing the sum of $6,000 for *Page 699 his said services. Said contract was found to be void by reason of a mutual mistake of law and relief on those tw...
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This action to foreclose a mechanic's lien terminated in the court below with the entry of a judgment of dismissal, from which the plaintiffs have appealed. Defendant Glick in her answer admits those allegations of the complaint wherein it is set forth that the plaintiffs Harry W. Andrews and Frank Cordano have been transacting business as copartners under the name of "Andrews-Cordano Plumbing Com...
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This is an appeal from a judgment of the superior court in and for the county of Tuolumne in favor of defendant in an action for specific performance and for damages resulting from the failure of defendant to perform under a certain agreement set forth in the complaint. The description of the property in the agreement between the parties was: "All that portion of the East one-half of Northwest one...
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The plaintiff prosecutes this appeal from a judgment in the defendants' favor after the sustaining of a demurrer to her amended complaint, the plaintiff declining to further amend. The plaintiff was the holder of a mortgage upon certain real property in Stanislaus County, owned by one Blanche B. Morton, who prior to the making of said mortgage had made, executed, and delivered to the defendant Wes...
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Petition for writ of mandate requiring the Superior Court in and for the County of Marin and Honorable E.I. Butler, Judge thereof, to certify an engrossed bill of exceptions for use upon appeal in the case of Hannon et al. v. Madden et al., which was an action brought by forty-five owners of property within one assessment district against the city of Sausalito, its then board of trustees and its c...
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This is an appeal from an order denying a motion to set aside an interlocutory and final decree of divorce on the ground that the trial court never acquired jurisdiction of the defendant. The appeal is upon the judgment-roll alone, which shows that summons was issued on April 1, 1920. It was delivered to the sheriff on April 3, 1920, and, on the same day, he made return that defendant could not be...
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This is an action to remove a cloud from the title to real property claimed by the plaintiff and to that end to enjoin the defendant bank, as judgment creditor, and the sheriff, respectively, from proceeding with an execution sale of said property upon a judgment obtained by defendant bank against one O.E. Squier. We find no merit in the appeal and the judgment must be affirmed. The court was warr...
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George Adam Arnold De Caccia, at the time of his death, was a resident of the county of Alameda. He had been a resident of Oakland, in said county, but at the time of his death, and at the time he made and signed the document hereinafter referred to, and claimed to be his last will and testament, he was a resident of Alameda, in said county. He died on the fifteenth day of February, 1927, and left...
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This matter comes before us upon a petition for a writ to review a judgment of the Industrial Accident Commission, denying compensation to the petitioner. The facts of the case appear from the findings of said Commission, as follows: Tom Collins was employed as a painter on the second day of July, 1926, at Sacramento, California, by defendants Brown and McGrew. The other defendant is the insurance...
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Plaintiff brought this action to establish his prescriptive rights to the use for nonriparian purposes of a certain quantity of the waters of Poso Creek, Tulare County, and he named as defendants some twenty or more persons who either owned riparian lands or claimed as appropriators, both above and below his property. A number of the defendants defaulted. The rights of all parties who appeared we...
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This proceeding was instituted to require the respondents Marius and Adrienne Moynier, husband and wife, and appellants Emile and Marie Moynier, husband and wife, and Abel and Jerondine Moynier, husband and wife, to interplead as to their respective rights in certain royalties received from the operation of oil-wells drilled upon lands beyonging to said respondent Marius Moynier. Both the appellan...
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Is Long Beach Junior College a "college" within the meaning of paragraph eight of the last will of Amanda T. Whitson, deceased? This is the sole question presented by this appeal. In 1921 (Stats. 1921, pp. 756, 761) the legislature of California provided for the organization, management, control, and financing of institutions to be known as junior colleges, by a statute reading in part as follows:...
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Plaintiff corporation sued defendant to quiet title to certain real property upon which is situated a plant to manufacture the by-products of milk. Ownership, possession, and right of possession were alleged, to which the defendant replied by admitting ownership and possession but denying the right of possession in plaintiff and setting up a written indenture of lease between the parties as the ba...
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This is an appeal from an order granting, in part, the petition of Richard T. Pomeroy, individually and as executor of the will of Mathew Kelleher, deceased, for partial distribution of said estate. Said petition was opposed by certain persons claiming to be the next of kin and heirs at law of said decedent. *Page 759 All parties, the petitioner and the various persons who opposed his petition, h...
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This is an appeal from a judgment of nonsuit in an action for a real estate commission. On April 17, 1923, the defendant was the owner of certain real property on South Flower Street in the city of Los Angeles. On that day he signed what is called an "Exclusive Agency Contract," wherein he listed said property with the plaintiffs and employed them as his exclusive agents for a period of thirty day...
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Plaintiff prosecutes this appeal from an adverse judgment entered in an action brought to *Page 773 recover $600 broker's commissions alleged to be due him for his services in attempting to effect an exchange of properties between defendants and W.S. and Lillian M. Little. On August 19, 1924, the defendants in writing authorized the plaintiff to negotiate an exchange of their property for that of...
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This action was brought to recover damages for an alleged eviction of the plaintiff from 190 acres of land owned by defendant and held by plaintiff under lease from defendant. The lease was in writing and covered a term of one year beginning November 1, 1923, and ending with the cropping season of the following year. It provided that defendant was to receive as rental of the leased premises one-th...
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The plaintiff brought this action to recover possession of certain real property and for an accounting involving the conduct of a merchandise business on the property. The issue of the right to the possession of real property was submitted to a jury, which returned a verdict for the plaintiff. The court made a general order of reference as to the issues involved in the accounting. Thereafter the r...
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This is an appeal from a judgment for the plaintiff in an action for the foreclosure of a mechanic’s lien. At the time mentioned herein the plaintiff was in the plumbing supply business. The defendant Bremser was the owner of the real property located at 2908 G Street in the city of Sacramento. Shortly prior to January, 1926, Bremser entered into a contract with one Pattiani for certain repairs...
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THE COURT. [1] The motion of the plaintiff heretofore made and submitted herein for an order releasing the property of the plaintiff and respondent herein from the attachment of the cross-complainant and appellant herein, under the provisions of section 554 of the Code of Civil Procedure, is denied upon the authority of Palmer v. Fix (L.A. 10254), ante, p. 472 [271 P. 749]....
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THE COURT. [1] This case does not materially differ from People v. Hodges (L.A. 10777), ante, p. 476 [271 P. 897], and upon the authority of that case the purported appeal herein must be dismissed. The appeal is dismissed....
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[1] The plaintiff commenced this action against the defendant to recover judgment upon a promissory note for the sum of $75,000 executed by the defendant *Page 789 to one J.F. Carlston and by the latter assigned and transferred to the Anglo London Paris National Bank and by said corporation transferred to the plaintiff herein for collection, and upon which it is alleged that the sum of $66,754.1...
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THE COURT. [1] Upon a careful examination of the record herein, we are satisfied that the plaintiff's complaint failed to state a cause of action; that the demurrer thereto was properly sustained, and that the judgment in favor of the defendants thereon was correctly given and made, and that this appeal is without merit. The judgment is affirmed....
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plaintiff commenced this action to recover a judgment for damages for personal injuries and *3 for damages to his automobile and for the loss sustained by reason of his deprivation of it in his business, occurring as a result of a collision between the defendant’s and plaintiff’s automobiles at a street intersection in the city of Fresno, alleged to have occurred through the defend...
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On the evening of August 2, 1925, respondent, Frank Cooney, his wife and child and William Aspe and wife, respondent’s stepfather and mother, respectively, and Mr. and Mrs. William Schnorr, father-in-law and mother-in-law, respectively, of respondent, were occupants of a Stephens seven-passenger automobile returning from a trip to Stanislaus County to San Francisco. When near Livermore, Alameda C...
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This case and Cooney v. Pirrelli, S.F. No. 12274, ante, p. 4 [266 P. 273], and Aspe v. Pirrelli, S.F. No. 12274a,post, p. 14 [266 P. 275], are companion cases as to the cause of and the circumstances attending the accident which, it is claimed, resulted in inflicting injuries upon respondent. The facts are fully set out in the first of said cited cases. One or two important propositions of law ari...
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This case, by reason of having been tried with case No. S.F. 12274, was not given a number. For purposes of identification it will be numbered S.F. No. 12274a. William Aspe, respondent herein, was an occupant of the automobile driven by Frank Cooney, on August 2, 1925, which was struck from the rear by a Moon sedan driven by said A.O. Pirrelli. The facts are described in the case of Cooney v.Pirre...
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The plaintiffs commenced this action for damages for the death of their minor son, a boy of a little over twelve years of age, caused by his coming in contact with a high-voltage cable located upon and passing through an electric tower within the limits of the city of Oakland, which cable and tower were being maintained by the defendant for the purpose of the transmission of an electric current of...
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This is an action to enforce a mechanic's lien for a balance claimed for extras due upon the construction of a building. The complaint alleges the furnishing of materials and the performance of labor in connection therewith under a contract for the construction by plaintiffs for defendants of a combined residence and garage. It also alleges the completion of the work, the filing of a notice of com...
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This is an appeal from an order made after final judgment discharging a receiver and directing the payment of the balance of moneys in his hands to the defendants. The action was brought to foreclose a mortgage on real property given to secure a promissory note in the sum of $8,750 executed by defendant Mrs. H. Benneyan, in favor of the plaintiffs. The mortgage by its terms also covered the rents,...
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This is an appeal by defendant from a judgment against it in an action to recover for personal injuries alleged to have been caused by the negligence of the agent of the defendant copartnership, in driving an automobile. The driver is also made a defendant. Plaintiff was crossing Green Street, in the city and county of San Francisco, from the north to the south side, about fifty feet east of its i...
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THE COURT. This action was instituted to establish as county charges several claims theretofore rejected either in whole or in part, by the board of supervisors of the defendant county. From the judgment entered upon a directed verdict the defendant appeals. The complaint consists of six separate causes of action, each for personal services alleged to have been performed and expenses incurred duri...
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This record presents but two questions: (1) May the People appeal under the facts here shown? and (2) if they may so appeal, does the information state a public offense over which the court below had jurisdiction? As we have been led to the firm conclusion that both questions must be answered in the affirmative, they will be considered in the order stated. On January 24, 1927, the district attorne...
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Prior to October 20, 1920, the plaintiff was a partner to the extent of a one-eighth interest in the partnership of Otis, McAllister & Co. The other partners, to wit, the defendants Otis and Bee, desired the plaintiff to retire from the partnership, to which the plaintiff consented. To that end the plaintiff entered into an assignment and retirement agreement with the defendants under date of ...
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Petitioner herein seeks by writ of mandate to compel the respondents, Superior Court and the judge thereof, to hear and determine an application filed by her as executrix of the estate of the above-named decedent, for an order authorizing the execution of a deed of trust, which is to serve as security for a promissory note sought to be executed to pay off and discharge a certain note, and mortgage...
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Respondent, as a subcontractor, furnished material and performed labor which was utilized in the construction of a portion of the state highway in San Mateo County. The item here in dispute relates to what is known as an "overhaul charge" – a charge of so much per cubic yard for hauling material for "shoulders" or elevated borders along said highway when finished, such hauling being from a place w...
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THE COURT. In this action the respondent's petition for a hearing in this court after decision by the district court of appeal, first appellate district, division one, was granted and the appeal was considered by this court. The case is unique in this jurisdiction and we have given careful attention to the matters urged by respondent for an affirmance of the judgment of the trial court in favor of...
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Appeal from judgment in favor of plaintiff in an action in unlawful detainer. The sole question is whether, under the circumstances shown by the evidence, defendants held possession of plaintiff's property under a month to month tenancy after surrender of lease by operation of law, as found by the court, or whether they held under an assignment of lease by operation of law, as contended by said de...
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Action to quiet title to lot 93 in tract number 909, situated in the city of Los Angeles. The statement *Page 80 of the case, as here quoted, is taken from the decision of the first district court of appeal, division one, rendered prior to the order for hearing in this court, and is adopted as part of this decision. "The complaint alleged title in the plaintiff with right to possession. The averm...
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In the county of Riverside the defendant was charged by information with having intoxicating liquor unlawfully in his possession. He pleaded guilty to conviction of a similar prior offense, and pleaded not guilty to the offense charged in the information. On the trial the jury returned a verdict of guilty as charged. The trial court pronounced judgment that defendant pay a fine of $1,000 or be con...
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On November 30, 1923, Thomas Frazier, while engaged as a miner in the employ of Visalia Masonic Mining Company, operating in Mono County, this state, suffered injuries from a blast unintentionally set off, which resulted in the permanent destruction of the sight of his right eye and a sixty per cent loss of hearing of the right ear. Said Frazier had, about 35 years prior to sustaining the injuries...
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This is an appeal from a judgment for ,defendants based upon an order sustaining both general and special demurrers to the amended complaint, plaintiff having declined the opportunity offered by the court to amend his pleading a second time. The so-called amended complaint is an anomaly, being in reality but a jumble of conclusions. No one word or phrase would properly characterize or serve to ...
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Defendants appeal from a judgment rendered for plaintiff in an action to recover damages for personal injuries received when an automobile in which she was riding, and which was being driven by her husband, was struck by an automobile operated by defendant E.C. Kellogg. Defendant Chanslor Lyon Company, a corporation, was the owner of the automobile operated by defendant E.C. Kellogg, whom it empl...
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The plaintiff commenced this action for damages for the death of his minor daughter of the age of eight years, who was killed at the intersection of Guerrero and Seventeenth Streets in the city of San Francisco hy being struck by an automobile driven by the defendant De-Mandel while in the act of crossing the street at said intersection, and in so doing in going around a laundry truck owned by th...
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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 111 Defendant and one Eugene Gentile were jointly charged by information with the murder of John J. Driscoll, a police officer of the city and county of San Francisco. A joint trial was had which resulted in a verdict convicting defendant of murder in the fir...
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This proceeding had its inception in an application filed in the superior court, in and for the county of Los Angeles, by one Herbert O. Reed and ten other applicants, among whom was the respondent herein, Frederick S. Shooter, to have their and each of their respective titles to certain lots or parcels of land registered and certified under the provisions of the initiative law adopted by the peop...
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This is an action by plaintiffs, owners of certain lands lying at the mouth of a watercourse situated in Yolo County known as Willow slough, seeking to enjoin defendant Yolo Water Power Company, a corporation, and about 80 other defendants, from unlawfully draining into said watercourse after use for irrigation water theretofore conducted into this watershed from Cache Creek. Appellants have pres...
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This is an appeal by the defendant from a judgment on a verdict in favor of the plaintiff in an action for damages for personal injuries resulting from an automobile accident. On the evening of September 26, 1922, the defendant was driving his six-passenger Haynes automobile from San Jose to San Francisco for the purpose of attending a wrestling match to take place the same evening. With him in th...
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MEISNER v. McINTOSH. Rehearing granted May 31, See final opinion 205 Cal., page 11. This is an appeal by the defendant from a judgment against her for $2,361.56 in an action for damages for fraud. The facts as found by the trial court are: That on the twenty-seventh day of March, 1924, and at the time of the transfer thereof to defendant Margaret McIntosh, plaintiff was the owner and in the posses...
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This appeal is from a judgment in the plaintiff's favor in an action for damages for personal injuries alleged to have been suffered by him while riding upon a certain freight elevator or sidewalk hoist connected with certain premises owned by the defendant Marian Realty Company in the city and county of San Francisco, and within which there has been conducted and operated for the past several yea...
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This appeal is by the plaintiff, alleging himself to be a taxpayer, from a judgment of the superior court, in and for the city and county of San Francisco, refusing to enjoin the board of public works of said municipality from entering into a contract for the construction of *Page 152 certain municipally owned railway lines therein, and also to restrain the auditor from certifying that there are ...
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This is an appeal from a judgment of dismissal upon sustaining defendant’s demurrer to the complaint without leave to amend. The complaint, filed December 17, 1924, alleges that “defendant is a resident of Los Angeles county, California, and that during all the time herein mentioned said defendant was a resident of the state of Colorado and during said time the plaintiff was and still is a resi...
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The issue of law here before us is presented by a petition for writ of mandate, with general demurrer thereto. Petitioner is a property owner in a disputed area which is either in or near the city of Long Beach, county of Los Angeles, state of California. Respondents are the City Council of the said city and the individual members constituting said council. The petition recites proceedings in due ...
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Appeal by plaintiff from a judgment against him entered upon sustaining a demurrer to the first count of his amended complaint. He was given leave to amend the second count of said complaint, but declined to do so and withdrew the claim made thereunder. [1] The action was brought upon the following letter, written by Simon L. Selling to the defendant, his niece, and handed to plaintiff in a sealed...
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In a proceeding in habeas corpus the court below awarded the custody of Agnes Patterson Bruegger, *Page 170 a minor, to her father, the petitioner for the writ. A motion is now made to dismiss the appeal taken by the maternal grandparents, respondents in the court below, upon the ground that there is no right to an appeal in a matter of this character, for which reason, it is contended, the court...
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Respondents move to dismiss appeals from two original judgments. The actions and the parties are the same as those referred to in the decision dismissing two appeals from the substituted judgments. (Alvarado v. Stanton, L.A. No. 9787,ante, p. 172 [267 P. 313].) [1] Judgment was originally given in each action in favor of the defendants, now the respondents here, and notices of entry of judgment we...
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I dissent. I find myself unable to concur in the order fixing the punishment just made by the court majority. I am of the opinion that in this matter the penalty should be either the maximum provided by law—five hundred dollars fine and five days’ imprisonment in the county jail—or, it should consist of an admonition or, at most, a reprimand. If this unwarranted interference with the due administ...
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This action was brought to recover on a life insurance policy issued by defendant to Emil Lesser, plaintiff's intestate. From a judgment entered on a verdict in plaintiff's favor for the sum of $1,950.40, defendant has appealed. Defendant issued the life insurance policy on February 12, 1894, upon the life of Emil Lesser in the sum of $3,000. Lesser paid the annual premium up to and including the ...
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On further consideration, we are of the view that, notwithstanding the rather persuasive arguments *Page 186 of the petitioner, the decision of the district court of appeal, affirming the action of the respondent Commission denying an award, should stand. Although we might disagree with the Commission as to the weight of the evidence before it, as an appellate tribunal we may not overturn a findi...
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This appeal is from a judgment of dismissal of this action given and made under section 583 of the Code of Civil Procedure for want of prosecution. The action was commenced on August 5, 1921, and was an action for the specific performance of an agreement in writing entered into between the parties on September 6, 1913, by *Page 192 the terms of which the defendant herein agreed to build and const...
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This appeal is from a judgment of the trial court denying a divorce to either of the parties to this action. The plaintiff commenced her action for divorce upon the ground of extreme cruelty, with numerous *194 specifications as to wherein such alleged cruelty consisted. The defendant answered, denying a number of the averments of the plaintiff as to his specific acts of cruelty, and as to the ...
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This appeal is prosecuted by the defendants from an order of the superior court of the county of Stanislaus denying their motion for change of place of trial to San Joaquin County, where at the time of the institution of the action the defendant corporation had its principal office and place of business, and where also the defendant Ross resided. The plaintiffs commenced this action in the coun...
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This is an appeal by the defendant Maryland Casualty Company from a judgment for $5,434 against it upon a surety bond. The appeal is upon the judgment-roll alone and the contentions made are that the complaint does not state a cause of action and the findings do not support the judgment. [1] The facts, as disclosed by the findings, are, briefly: That prior to December 17, 1924, defendant E.L. Smit...
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In this action a hearing was granted by this court after decision by the district court of appeal in order that the case might be considered with another one growing out of a similar controversy in which a decision had been rendered by the district court of appeal and which latter decision was inharmonious with the decision in the instant case. (West Glendale M.E. Church v.McClellan, L.A. No. 8432...
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This is an application for a writ of mandate to compel the respondent, Secretary of State, to disregard and take no further action with reference to certain referendum certificates heretofore filed in his office and to notify the county clerks and registrars of voters throughout the state of the offices of members of the legislature to be nominated at the primary election to be held in August, 192...
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The plaintiff sued the defendants on a promissory note for $1,935.48. Judgment by default was rendered against the defendant Foothill Finance Corporation, as indorser and guarantor, for the full amount of the note, and from this portion of the judgment no appeal has been taken. After trial the court also rendered judgment in favor of the plaintiff and against the defendant Davis for the sum of $19...
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This is an appeal by the defendants from an order denying their motion for a change of the place of trial without prejudice to a renewal of the motion at the time of trial. The motion was made on numerous grounds, two of which need now be considered, to wit: (1) That there is reason to believe that an impartial trial cannot be had in the county of Calaveras wherein said action was commenced, and (...
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This is an appeal from judgment in favor of plaintiff in an action for damages because of failure of defendant buyer to accept full delivery under a written contract between the parties for the sale and purchase of green grapes. Said contract provided that the grapes were to be delivered "f.o.b." a shipping point near plaintiff's vineyard. At the same time the parties also agreed orally, as allege...
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This appeal is from a judgment for defendant in an action for damages for personal injuries. The plaintiff, Joseph T. McMahon, was at the time of the accident about fourteen years of age. On the evening of September 3, 1925, on Mission Street, in San Francisco, he hailed Charles Raleigh, who was at the time passing on a motorcycle, and asked him for a ride. When the two had proceeded for about six...
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A hearing was granted by this court after decision by the district court of appeal in and for the first appellate district, reversing the judgment and directing the trial court to enter judgment in favor of the defendant. Upon a further consideration of the questions involved in this appeal, we are of the opinion that the district court of appeal was correct in its opinion reversing said judgment....
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This is an appeal from a judgment of the superior court of San Joaquin County, sentencing defendant to imprisonment in the state prison at San Quentin, on his plea of guilty when arraigned on an information, the charging part of which is as follows: “The said George Ball is accused by the District Attorney of the County of San Joaquin, State of California, by this information of the crime of ta...
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This appeal is by the plaintiff from a judgment in defendant’s favor upon an order of the court granting a nonsuit at the close of the plaintiff’s case. The *245 action was .one to recover damages for personal injuries sustained by the plaintiff from a fall which occurred as he was about to enter the defendant’s branch bank in the city of Marysville between the hours of 10 and 11 o’clock A. M. ...
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This is an appeal by the defendant Frank Spry from a judgment against him for $571.50 in an action brought to recover money wrongfully converted to the use of defendants. The plaintiff, a copartnership, employed the defendants as manager and clerk, respectively, in its Turlock branch. The complaint charged that the defendants, while so employed, "wrongfully and without the assent of said plaintiff...
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Hearings in this action and the two companion actions ofHaley v. Bloomquist, L.A. No. 9584, post, *Page 252 p. 253 [268 P. 365], and Bloomquist v. Haley, L.A. No. 9585, post, p. 258 [268 P. 364], were granted by this court after decision thereof by the district court of appeal, in and for the second appellate district, second division. The hearings were granted mainly for the reason that we were ...
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THE COURT. As stated by us in the memorandum of opinion in action L.A. No. 10253, Bloomquist v. Haley, ante, p. 251 [268 P. 367], this day filed, we are in full accord with the opinion of the district court of appeal in and for the second appellate district, second division, written by Mr. Justice Craig, in this action, and we adopt the same as the opinion of this court, which said opinion reads a...
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A hearing was granted by this court after decision by the district court of appeal in and for the second appellate district, second division, reversing the judgment in favor of respondents, and directing the entry of the following order: "It is directed that the order of the trial court granting a new trial be vacated, that said court enter a new judgment for the plaintiffs that they have possessi...
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On October 19, 1921, the defendant, Antonio Lagna, entered into a written contract with one J.J. Rue, whereby Rue agreed to erect and build for Lagna four bungalows at Eagle Rock, Los Angeles County, on lots 4, 5, 6, and 7, block 5 of a certain subdivision, for the sum of $2,400 each according to certain plans and specifications, to be paid as follows: $300 when each bungalow is ready for plasteri...
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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 269 This is an original application for a writ of mandate to compel the respondent, as city attorney of the City of Pasadena, to institute condemnation proceedings pursuant to an order of April 28, 1927, of the board of directors of the petitioner, City of Pa...
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THE COURT. This is an appeal by the defendant Wood from a judgment declaring forfeited a lease on the McNeece building in the city of San Diego. By written instrument dated November 1, 1920, the plaintiff leased to the defendant Wood the building in question, which is a business block in said city. On February 17, 1923, Wood subleased the upper four floors to Mrs. Jennie H. Hipwell. Mrs. L.E. Geog...
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This is an action by the People against the defendant to recover the two cent per gallon license or excise tax provided by the Gasoline Tax Act (Stats. 1923, chap. 267, p. 571) upon 2,041,922 gallons of motor vehicle fuel sold by defendant to five different concerns under five different executory contracts of sale made prior to May 14, 1923, the completed sales being made during the first quarter ...
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The state in this action sues defendant for the two-cent tax levied under the provisions of the Gasoline Tax Act of 1923 (Stats. 1923, chap. 267, p. 571), and measures the amount of the claim by the sale during the second quarter of the year 1924 by defendant of 6,945,356 gallons of motor vehicle fuel, the sum demanded being $10,749.10, together with interest and costs. The record is presented upo...
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On the authority of People v. Ventura Refining Co., ante, p. 286 [268 P. 347], the judgment in this case must be affirmed. [1] The contracts here involved are summarized by appellant as follows: "Class A agreements, where the purchaser agrees to purchase and the Richfield Oil Company agrees to sell the entire requirements of the purchaser in his business for a period of one or more years, and dail...
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This is an application for a writ of review. The petitioner, The Golden Gate Ferry Company, alleges that it was and now is engaged in the business of operating a public ferry for which tolls are charged for the transportation of passengers and self-propelled and other vehicles on, over, and across the waters of the San Francisco Bay; that it is the owner and in the possession of a franchise *Page ...
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This is an action in equity for the rescission of a written agreement entered into between the parties for the sale by defendant and purchase by plaintiff of an electric violin piano for the sum of $1,600 and to obtain cancellation and surrender of forty promissory notes of $40 each executed by plaintiff and delivered to defendant to provide payment in monthly installments for said instrument. The...
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Action brought by the administratrix of the estate of Conrad Flach, deceased, under section 377 of the Code of Civil Procedure to recover damages from defendant by reason of the death of said deceased, alleged to have resulted from the negligence of said defendant in the operation of the latter's automobile. The trial was had before the court without a jury and resulted in a judgment in plaintiff'...
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This appeal is prosecuted by certain of the defendants herein from a judgment rendered against them upon the pleadings in an action wherein the plaintiff sought to recover certain sums of money, with interest, claimed to be due her on account of a certain agreement in writing which proved, for reasons hereinafter to be stated, to have been illegal and void. The plaintiff's complaint was in three c...
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This action was one commenced by the plaintiff, purporting to act as the assignee of a number of labor claimants who are alleged to have performed work and labor upon certain real property owned by the defendant Hensen, which consisted in and contributed to *339 the construction, alteration and repair of an oil-well upon the defendant’s property and for which the persons performing the same cla...
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Action to recover the purchase price of a certain used autotruck sold under a written agreement. Defendant by his answer admitted the sale, but by way of defense alleged that he was induced to make the purchase by means of fraudulent representations. Judgment was rendered for defendant and plaintiff appeals. The facts, briefly stated, are as follows: On the fourteenth day of December, 1925, plaint...
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This appeal is from a judgment of the superior court in and for the county of Los Angeles, setting aside and annulling an order of the Board of Medical Examiners of the State of California revoking the license of one Robert W. Renwick, the petitioner and respondent herein, which license entitled him to practice medicine and surgery in this state. The order of said board was made after a hearing be...
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This action is one for the foreclosure of a mechanic's lien upon certain real property in the county of Los Angeles, the plaintiffs and lien claimants therein being copartners doing business under the firm name of Flora Mahedy. In the month of December, 1923, the defendant and appellant, Sarah Holzberg, being the owner of said real estate, rented the same to her co-defendant Robert Hankins upon a...
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Action for damages for death of plaintiff's son from injuries sustained by reason of the negligent operation of an automobile by appellant. On the 14th of September, 1922, Herbert O'Meara, plaintiff's son, then the age of seven years, while running across East 12th Street in the city of Oakland, was struck by an automobile driven by defendant B. Henderson, the agent of the defendant, G.P. Haiden. ...
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This is an appeal in the above-entitled proceedings from an order refusing the motion of one G.M. Harwell to recall and annul a writ of assistance theretofore issued and still outstanding in said proceedings, the same being in foreclosure. Respondent received the sheriff's deed and sought and secured the writ complained of, the command of which is as follows: "Therefore we command you that immedia...
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Action to recover damages as a result of injuries sustained in a collision between plaintiff's motorcycle and defendant's automobile. The plaintiff being a minor, the action was instituted and is being prosecuted by his guardian ad litem. The jury before whom the action was tried rendered a verdict in favor of the plaintiff, and from a judgment entered thereon the defendant has appealed. The first...
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Appeal from judgment for plaintiff in an action to rescind the purchase of ten acres of land upon the ground of fraud and misrepresentation and to recover the purchase price of $1,000 paid therefor. The several contentions made by appellants involve only questions primarily for the trial court, and as, in our opinion, the evidence warrants no conclusion other than that reached by said court and am...
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This is an appeal from a judgment dismissing the action after an order sustaining a demurrer to a second amended complaint without leave to amend. The plaintiff appears in propria persona and he attempts to state a cause of action for damages for illegal restraint and also to recover certain sums which he claims were unlawfully ' expended on his behalf by defendant while acting as the guardian ...
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Appeal from a judgment after the sustaining of demurrers to an amended complaint without leave to amend in an action for damages for malicious prosecution. The plaintiff appears in propria persona and by his complaint he attempts to allege that all the defendants entered into a conspiracy to imprison him in a California state hospital for the insane, such conspiracy being without reasonable or ...
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Action for damages for personal injuries. The complaint alleges, in substance, that on July 13, 1925, plaintiff was riding with her husband in an automobile truck which was being driven in a careful and prudent manner in a northwesterly direction along and upon a public highway in the county of Orange; that when the truck had reached a point directly opposite to the home of plaintiff, her husband ...
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This is an appeal by one defendant from a portion of an interlocutory decree in partition. The contest is really a claim of priority between appellant and respondent Driscoll in and to a portion of the fund arising from a sale of the property for partition. The story opens with the death, intestate and without issue, of Sabina A. Lanon, leaving a considerable estate in Los Angeles County. A contes...
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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 401 Ella McCray died on February 19, 1925, leaving an estate consisting of both real and personal property. A holographic will, executed by her and bearing date August 20, 1924, was admitted to probate upon the petition of the respondent Citizens Trust Savin...
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This is an application by Veronica C. Baird, Benjamin H. Baird, and Thomas R. Baird, who are named as devisees and legatees in the will of David J. Baird, deceased, against the Superior Court of the City and County of San Francisco to restrain further proceedings by one David Jennings Baird, by his guardians, on a petition filed by him on the twenty-eighth day of August, 1926, asking for final dis...
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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 417 [1] Plaintiff, while crossing East 12th Street near its intersection with 22d Avenue, in the city of Oakland, was struck by an automobile driven by the defendant. As a result of the collision she received bodily injuries, and thereafter instituted this ac...
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This is an action, to establish and enforce a trust in a renewal lease of a hotel in favor of a partnership existing between the plaintiff Minnie Mabelle Wing and the defendant. The partnership was formed on May 25, 1921, solely for the purpose of conducting the hotel under said lease. The lease, by its terms, would expire on May 31, 1925. On March 1, 1925, the defendant procured in her own name ...
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This is an appeal from a judgment for the plaintiff in an action wherein the plaintiff sought to cancel certain agreements to purchase real property and to recover partial payments on the purchase price made thereunder. On January 18, 1924, the plaintiff entered into two agreements in writing with the defendant T. J. Lawrence Company, whereby the latter agreed to reserve for the plaintiff, at a...
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This is a proceeding to review an award of the Industrial Accident Commission in favor of Mrs. Minnie Jaynes, the mother of John Jaynes, who met his death while in the employ of the Page Modern Garage. The petitioner was the insurance carrier of the employer. The award was based upon the finding of the Commission that said John Jaynes left surviving him his mother, who was wholly dependent *Page 4...
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The petitioner for a writ of review herein was at the time of the injuries for which he sought an award an employee of the respondent San Francisco Bridge Company of which its co-respondent, Federal Mutual Liability Insurance Company, was at said time the insurance carrier. The petitioner's injuries were caused by his being struck by a plank on the head while in the course of his employment and on...
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This is an action to recover upon a promissory note and to foreclose the mortgage securing it, default having been made in the payment of both principal and interest. The terms of the note, so far as here material, are as follows: ". . . I promise to pay . . . three thousand . . . dollars with interest from date until paid, at the rate of twelve per cent per annum; payable quarterly. *Page 440 Sh...
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The plaintiff is the daughter and the defendant is the sister of Charles A. Parkinson, who died testate on April 7, 1921, in the county of Los Angeles. The will of the decedent, bearing date March 18, 1921, was admitted to probate on the ninth day of the following May. The decedent left as heirs at law his widow, who resided in Michigan, two sons and the plaintiff. The will acknowledged the marita...
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This action was instituted by the plaintiff to recover damages from the two corporations, defendants, for personal injuries sustained by him on August 13, 1924, as a result of a collision between a truck of the defendant San Diego Consolidated Gas & Electric Company, of which corporation plaintiff was an employee, and upon which truck he was riding, and a street-car operated by and on behalf of...
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The action in which this appeal is prosecuted was instituted for the purpose of quieting title in the plaintiff to the real property described in the complaint. The plaintiff purchased the property at a constable's sale held in December, 1922, pursuant to execution issued in January, 1922, to satisfy a judgment theretofore and in December, 1921, rendered against the defendant Harry F. Ulrich. The ...
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This is an appeal from a judgment of dismissal after order made sustaining, without leave to amend, a demurrer to the second amended complaint. The plaintiffs are the sons and sole heirs of Elisa Jacob, deceased. By their complaint they sought the entry of a decree impressing a trust upon certain described real property, situate in Trinity County, title to which appeared in the names of Henry and ...
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This appeal is taken from a judgment entered against appellant after an order made sustaining a demurrer to appellant's complaint without leave to amend. [1] The facts herein considered are taken from the complaint, it being the only record by which the question of the sufficiency of the facts as stating a cause of action may be judged. The plaintiff and appellant herein asserts the right to maint...
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Respondents move to dismiss the appeal. The judgment appealed from was entered on October 19, 1927, in a proceeding brought under section 1664 of the Code of Civil Procedure to determine heirship. A motion for new trial interposed by the defendants was denied December 16, 1927, and on December 24th the defendants filed their notice of appeal, together with a notice and request to the clerk for the...
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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 472 [EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 473 The defendant was charged with having kidnaped and murdered Marion Parker, a twelve year old Los Angeles schoo...
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[1] Action for damages for breach of promise to marry. Trial was had by jury which resulted in a verdict in favor of plaintiff in the sum of five thousand dollars. Motion for new trial was made and denied. This appeal is prosecuted from the judgment and order. It is claimed as ground for reversal that the evidence shows the alleged promise to be void because of the fact that plaintiff knew at the ...
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Plaintiffs had judgment in the court below against defendant P. IT. Weibel for the sum of $1,900, which sum the court found to be the value of certain poultry and poultry-raising equipment destroyed by a fire found by the court to have been negligently permitted to *489 escape by said defendant Weibel from premises owned and occupied by him and his wife, Mary Weibel, to the adjoining property o...
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This action against the defendant, the City of Sacramento, was filed in the county of Yolo. Said defendant appeared therein and moved the court for a change of the place of trial of said action upon the ground that the plaintiff was either a resident of or was doing business in said county of Yolo. The motion was granted and an order made changing the place of trial of said action from said county...
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[1] Plaintiff instituted this action against the defendant to quiet his title to seven lots in the city of Tulare. Plaintiff held a tax title to said lots and employed intervener, who is an attorney at law, to act as his attorney in the prosecution of this action under a written agreement that "Middlecoff will render the necessary legal services to determine the title to said lands, and in cases w...
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Appeal by plaintiff from judgment in favor of defendants. The complaint was in the usual form of a quiet title suit, but upon the filing of answer and cross-complaint by defendants it was amended to declare a trust in real property, and under such pleadings, upon request of the parties, the question of title to the property was tried. The appeal is utterly without merit and the various contenti...
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This suit was commenced by C.W. Dorris. He subsequently died, and defendant's appeal is therefore *Page 505 prosecuted against his executor. The action is one to recover upon a creditor's claim filed against the estate of Henry D. Meyer, deceased, based upon an alleged promissory note dated November 26, 1923, executed by decedent to said C.W. Dorris, payable six months after date, in the principa...
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This appeal is from a judgment in favor of the defendants after a directed verdict given and made by order of the court on motion of the defendants at the close of the trial. The action was one to recover damages for injuries sustained by plaintiff while walking upon a wooden driveway superimposed upon the sidewalk in front of the property owned by the defendant Mary J. Claasen, and at the time of...
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We are satisfied with the conclusion of the learned district court of appeal in this cause and adopt a part of its opinion herein: "This is an action in damages for deceit. Judgment was entered against defendant for $3,958.33 and costs on the verdict of a jury. Defendant moved for a new trial, his motion was granted and plaintiff appealed. "In his second amended complaint plaintiff alleged that he...
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This, the third appeal in the above-entitled cause, is from an order made on July 10, 1925, on motion of plaintiff, appointing a receiver pendente lite. The order confers power upon the receiver to collect what is termed "mesne profits," which is therein interpreted to mean a conferring of power upon said receiver to substitute himself for the defendant and secure and keep, pending further order o...
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This action was brought to recover damages growing out of the sale on March 24, 1922, by defendant to plaintiff of a used 80-horsepower return tubular boiler. The complaint, as finally amended, in substance alleged that prior to March 10, 1922, plaintiff informed defendant that he was about to enter into a contract with a customer, viz., Leal Sons Lumber Company, for the sale to said company of o...
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In 1921 and 1922 the plaintiff was the lessee and in possession of 120 acres of land in Reclamation District No. 1000. In the latter part of the year 1921 he seeded the land with barley. On the ninth day of February, 1922, the crop was about two inches high. On that day a heavy rainstorm started and continued for three or four days. On February 12th one of the drainage ditches of the district loca...
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The appeal is by defendant, as seller, from a judgment for plaintiff, as a buyer, for seven hundred dollars, the amount paid on the purchase price, in an action to rescind the purchase under formal written contract dated May 6, 1923, of a second-hand Packard automobile. As finally amended, count one of the complaint is denominated a cause of action to rescind for fraudulent misrepresentations touc...
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This is an appeal from a judgment of dismissal following the sustaining of a demurrer to the complaint without leave to amend. The complaint is one for damages for loss of a crop of rice resulting from the defendant's alleged refusal to deliver irrigation water to the rice lands of the plaintiff. Briefly and in substance it is alleged that the defendant is organized and existing under the Californ...
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This is the second appeal in this action. Our decision of the first appeal will be found reported in 199 Cal. 318 [249 P. 197], where the facts of the case are fully stated, and for that reason it will not be necessary to repeat them here. At the first trial of this action judgment was rendered in favor of plaintiff, which judgment was reversed by this court. On the going down of the remittitur th...
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A rehearing of this case was granted for the reason that this court desired to consider, before the final determination of this appeal and in connection with it, the case of Stewart v.Stewart, then pending on its second appeal to this court, and in which many of the same questions were involved as are presented by the appeal in the *Page 559 present proceeding. The decision of this court on the s...
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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 572 THE COURT. This action to quiet title and to set aside a trustees' sale and deed covering certain real property was instituted in March, 1924, approximately five years subsequent to such sale. The trial court found all material issues in favor of the defe...
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THE COURT. The petition for a hearing in this court after decision by the district court of appeal, second appellate district, division two, was granted. Further consideration of the record and of the points involved has persuaded us of the correctness of the conclusions expressed by the district court of appeal. We therefore adopt the opinion of the district court of appeal, of which Mr. Justice ...
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This is an appeal from an order dismissing, for want of prosecution, an action to enforce a mechanic's lien. *Page 596 The defendant Woulfe is the owner in fee of certain lots in the Vista Del Mar Tract, in the county of Orange. On June 1, 1921, he entered into an oil and gas lease with the defendant Robert M. Pease. By assignment this lease came into the hands of the defendant Malis Aldahl Syndi...
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This is an appeal from a judgment of conviction and from an order denying a motion for a new trial. In January, 1927, the defendant was indicted on twelve counts, four for grand larceny, four for obtaining property by false pretenses and four for embezzlement. Four transactions only were involved, each one of the four being pleaded three ways and charging a different offense. The trial court susta...
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Action in equity to establish the provisions of a joint and mutual will made by husband and wife. The case was before this court upon a former appeal taken from a decree of distribution in the matter of the estate of John Rolls, deceased. Two questions were there involved – one as to whether the assets of the estate were separate or community property, the other concerned the revocability of the j...
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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 611 This is an appeal by the defendants from an order granting the plaintiff's motion for a new trial. The motion was made on the usual statutory grounds and was based on affidavits purporting to set forth newly discovered evidence. The order did not specify ...
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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 620 The plaintiff herein appeals from a judgment rendered and entered after a directed verdict in the defendant's favor. The action is one for the recovery of both general and special damages for the breach of the *Page 621 implied covenant of quiet enjoymen...
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This is an appeal by the plaintiff from a judgment against him in an action in which he sought damages for breach of an alleged implied warranty of title and of quiet enjoyment, made by his lessors, the defendants herein. Plaintiff leased from defendants a certain piece of real property, for a term of ten years, at a stated consideration of $25 per month for the first seven years of the term and $...
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Suit to enjoin and to restrain defendant corporation from disposing of certain shares of stock in a water system and the water and water rights represented thereby. *Page 648 [1] The complaint is somewhat voluminous. The facts show that in 1902 defendant, Empire Water Company, hereinafter designated as the Water Company, acquired certain water rights and a system of irrigation and diverted from ...
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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 655 This is a proceeding wherein the City of Pasadena, a municipal corporation, applies for a writ of mandate directed to the respondent, as the city clerk of said City, requiring her, in her official capacity, to certify to the passage and content of a certa...
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THE COURT. [1] Petitioners filed an application for a writ of mandate to compel the respondent to settle a proposed bill of exceptions preparatory to an appeal from a judgment against sureties on an appeal bond entered on motion after the affirmance of the judgment appealed from. (Code Civ. Proc., sec. 942.) From the facts alleged in the petition for the writ it appears that, on timely motion, the...
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Certiorari to review an award of the Industrial Accident Commission in favor of Ida M. Dracket and against Fred S. Moody. Briefly, the facts are that petitioner, Fred S. Moody, while suffering from an infection, which caused a high fever and delirium, was ordered sent to the hospital by his physician, who requested the hospital to assign petitioner a room, to prepare the operating room, and to cal...
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On April 30, 1925, under the trade name of Aristocrat Distributing Company, one J.B. Vallen entered into a contract in writing with Chas. A. Merritt and Chas. A. Parlier, a copartnership, doing business under the *Page 674 name of Merritt and Parlier, with reference to the sale and delivery by the former to the latter of a certain number of dishwashing machines. The contract need not here be set ...
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Motion to dismiss appeal for alleged failure to file, within the time required by Penal Code, section 1247, statement of grounds of appeal. *Page 679 [1] Judgment was imposed on defendant on November 16, 1927. On November 21, 1927, the court gave and made an order directing the preparation of clerk's and reporter's transcripts, which recited therein that the required statement above referred to ...
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Action by plaintiffs to recover damages for the death of their minor son, Dan Marchetti. The defendants Duree and Adair were the engineer and fireman, respectively, in charge of the train of the defendant the Southern Pacific Company at the time of the collision which resulted in the death of plaintiffs' son. The deceased at the time of his death was eighteen years of age, and was then and for som...
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Action against the City of Sacramento and its officers by a property owner of said City to enjoin the enforcement of a zoning ordinance enacted by the city council of said City. A general demurrer to plaintiff's complaint was sustained by the trial court, and upon her refusal to amend said complaint the court entered its judgment in favor of defendants. From this judgment plaintiff has appealed. T...
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MEMORANDUM CASES. THE COURT. [1] The appeal in this action involves the same matters discussed and decided in the case of Citti v. Bava, ante, p. 136 [266 P. 954], and is presented on the same briefs. On the authority of that case the judgment herein is reversed....
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This is an appeal from a judgment for defendants entered after a demurrer to the complaint had been sustained without leave to amend. Plaintiff sought a writ of mandate directed to the supervisors, auditor and tax collector of Los Angeles County, to compel the cancellation of a tax assessment for the year 1923, against property alleged to be used exclusively for religious worship by plaintiff and ...
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THE COURT. [1] The appellant's petition for a hearing in this court after decision by the district court of appeal for the first appellate district, division one, was granted chiefly for the reason that one of the main questions presented upon this appeal was under submission before this court in the case of People v.Scofield, 203 Cal. 703 [265 P. 914]. The judgment and order in that case were rev...
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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 28 [EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 29 [EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THE...
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This is an action brought by the City of Los Angeles under the Park and Playground Act as amended (Stats. 1909, p. 1066; Stats. 1913, p. 414; Stats. 1921, *Page 46 p. 349), to condemn forty lots in the Torthorwald Tract No. 1, in said city, for public park purposes. Several separate answers were filed by the various defendants, alleging ownership of the property and claiming compensation for the ...
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THE COURT. Certiorari to review an award of the respondent Industrial Accident Commission. An application for adjustment of claim was filed with the respondent Commission on behalf of the father and dependent minor son of one Leo Loya, deceased. At the time of his death on January 3, 1926, the deceased was in the employ of the Southern Pacific Company as a member of a section crew operating upon 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 63 This appeal, L.A. No. 8539, which will presently receive our attention, is the first in numerical order of three separate appeals pending in this court from judgments affecting the estate of Mary Moore Miller, deceased. The second appeal, L.A. No. 8894, is...
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This appeal was taken from an order revoking the probate of the will of Mary Moore Miller, deceased, wife of Jared H. Miller. The grounds of the contest set out are in all material respects a duplication of the grounds upon which a cancellation of the deed of joint tenancy to certain real property was attempted in the case of Frank M. Kelsey v. Jared H. Miller, ante, p. 61 [263 P. 200]. Mary Moore...
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THE COURT. This appeal is from a judgment rendered in favor of plaintiff in an accounting action for the sum of $693.10. Plaintiff is the appellant herein. As special administrator of the estate of Mary Moore Miller, deceased, plaintiff brought an action for an accounting for moneys and property in the superior court of the county of Los Angeles against Jared H. Miller in which he charged him with...
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This is a proceeding in mandamus to compel the defendant, as auditor of the county of Shasta, to draw his warrant in favor of plaintiff in the amount of certain claims previously approved by the board of supervisors of that county. The facts leading up to the proceeding and necessary to its understanding are: H.L. Moody, the father of the plaintiff, had been, prior to July 17, 1925, the owner and ...
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This is an appeal from an order denying the petition of Grattan D. Philips, Jr., for a partial distribution of the estate of Grattan D. Phillips, deceased. Grattan D. Phillips died intestate in the city and county of San Francisco on the twenty-seventh day of November, 1925, *Page 108 leaving an estate consisting of real and personal property. He also left as his sole heirs at law Margaret A. Phi...
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This is an appeal from judgment in favor of defendants in an action to recover alleged damages resulting from collision between automobile in which plaintiffs were riding and an electric street-car of defendant corporation operated by defendant Stringfellow. Praying for damages in amount of $36,000 for injuries suffered by plaintiff Clara F. Berguin, consequential damages suffered by the husband a...
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This is an appeal from a judgment entered on an order dismissing, for delay in prosecution, an action to foreclose a mechanic’s lien. The action was filed by the original contractor and the order dismissing it was made under the authority and discretion vested in the trial court by statute. The only question presented by the appeal is whether or not the judge of the superior court abused the disc...
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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 130 The appellant, Clarence Kelly, and Michael Papadaches were jointly charged by indictment with the commission of three murders, each alleged in a separate count. Both defendants entered pleas of not guilty. Their separate motions for a severance were grant...
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The defendant was convicted of the crime of murder in the first degree and the death penalty was imposed upon him. He has appealed from the judgment and from the order denying his motion for a new trial. [1] The evidence amply supports the judgment of conviction. The defendant Shannon, who had already served two terms in the state prisons for forgery and for passing a fictitious check, assumed the...
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The defendant herein appeals to this court from a judgment imposed upon his conviction of the crime of murder in the first degree by a jury without recommendation, and from an order denying him a new trial. The double murder of which the defendant was thus convicted was committed in the city of Bakersfield on the evening of October 17, 1926, his wife and stepdaughter being the victims of his atroc...
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On July 13, 1925, Stuart Arms Company, a corporation organized under and by virtue of the laws of the state of California, and owning property subject *151 to taxation in the city and county of San Francisco, filed its complaint on behalf of itself and for the benefit of all the taxpayers of said municipality, and particularly those who might choose to join in the action and contribute to the e...
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Lonnie Johnson was tried and convicted of the crime of murder in the first degree, which crime was, by the information filed against him, alleged to have been committed in the county of Merced, this state, on or about March 18, 1927, by unlawfully killing with malice aforethought one May Evelyn Harris, also known as Dolly Johnson. The verdict of the jury being one of murder in the first degree, wi...
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The plaintiff brought an action to quiet title to real property. On the issues raised by the answer and cross-complaint of the defendant, and the answer of the plaintiff thereto, judgment was entered for the defendant, and the plaintiff appeals. The plaintiff and appellant, John M. Sullivan, is the surviving brother of M.J. Sullivan, who died intestate. The defendant and respondent, Cecelia Hess, ...
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Defendants appeal from a judgment entered upon a jury verdict awarding plaintiff five hundred dollars as damages for personal injuries received when he was struck by an automobile owned by defendant *Page 169 Beverly Bones and operated by defendant Willis Garcia, a minor fifteen years of age at the time of the accident and the son of the defendants Manuel Garcia and Ella Garcia. Appellants conten...
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This appeal is taken from an order modifying a final decree of divorce by reducing the monthly allowance of $60 awarded by said decree for the support of plaintiff (appellant) and the minor children of the marriage to $30 per month. Appellant and respondent intermarried October 17, 1901, and two sons and one daughter were the issue of the mar *174 riage. On January 24, 1905, respondent’s moth...
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Defendant, Associated Oil Company, a corporation having its principal place of business in the city and county of San Francisco, appeals from an order of the court below denying its motion for a change of venue to the county of Los Angeles in an action brought against it in the superior court of the city and county of San Francisco by the Bartholomae Oil Company, a corporation having its principal...
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Action to recover damages for injuries which plaintiff alleged she sustained in being knocked down and run over by an automobile owned and driven by defendant. A trial was had before a jury which rendered a verdict in favor of the defendant. [1] Plaintiff moved for a new trial, which was granted by the court, and the defendant has appealed from this order. It is contended by appellant that the mot...
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This is an appeal from an order of the Contra Costa County superior court granting a change of venue from that county to the county of Madera. The complaint, which was filed in Madera County, alleged damages in the sum of eight thousand dollars suffered by plaintiff because of defendant's failure and refusal to perform his part of a certain written agreement respecting the sale by him to plaintiff...
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This is an appeal by the defendant from a judgment against it for $4,845.98, damages for breach.of contract. The plaintiff was the owner of an apple orchard in Sonoma County, California, and entered into a contract with the defendant by which the defendant agreed to purchase and the plaintiff to pick and deliver “all the Graven-stein Apples, below specified and grown during the current year on hi...
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THE COURT. In this cause judgment was had on the pleadings in favor of plaintiff and against defendant S. Scatena, which defendant has appealed. The complaint declares *Page 192 for the balance due from defendants upon a promissory note dated May 26, 1921, and due August 6, 1921, for the principal sum of $30,000, with interest at seven per cent, payable to the Bank of Italy, together with appropr...
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This is an appeal by the defendants from an order denying their motion for change of place of trial from the superior court of the state of California, in and for the city and county of San Francisco, to the superior court of the state of California, in and for the county of Fresno. The plaintiff brought an action against the defendants upon an assigned claim of Messrs. Colding and Hale, to recove...
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This is an appeal from an order setting aside a default judgment in the sum of $3,235.70. The plaintiff is engaged in business at Kalamazoo, Michigan, and the defendants are located at San Francisco. Summons was served on the defendant, Joseph Brown, on September 11, 1925, and on the defendant, Arthur Brown, on the seventeenth day of October following. On the day last named the defendants employe...
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[1] This appeal is from a judgment in favor of the defendants made and entered in the superior court in and for the county of Santa Cruz after the granting of a motion made by the defendants for a judgment on the pleadings, upon the ground that the complaint did not state facts sufficient to constitute a cause of action. This action was one for malicious prosecution, the complaint alleging that th...
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This appeal is from a judgment of the superior court in and for the city and county of San Francisco in favor of the defendants in an action instituted by the plaintiffs having for its purpose the prevention of the defendants from interfering with the attempted effort and action of the plaintiffs to place a tombstone of a certain type upon and over the grave of one Bertha Zimmer, the deceased wif...
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This is an appeal from a judgment of nonsuit in an action for damages for personal injuries. The defendant conducts a retail dry-goods store in a building bounded by Washington, Tenth, and Eleventh Streets in the city of Oakland. On the Tenth Street side of the store there are two swinging doors, used for the purposes of entrance and exit by the patrons of the store. These doors are about seven fe...
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[1] This is an appeal by the plaintiff from an order granting defendant's motion for a new trial based upon insufficiency of the evidence. The action was for damages for personal injuries resulting from defendant's alleged negligence. The defendant was driving an automobile and the plaintiff was riding upon a motorcycle at the time of the accident. The record discloses a conflict in the testimony....
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This is the second appeal in this case. The first trial resulted in a verdict in favor of the defendant on its cross-complaint for the sum of $8,331.25, which included $6,000 on account of three promissory notes executed by the plaintiffs to the defendant in connection with the transactions involved herein and expenses incurred by defendant in disposing of rejected goods in the open market. The de...
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This is an action to recover upon the following promissory note: "$5,000. Carnegie, Pa. June 1, 1919. "Two years after date, I promise to pay to the order of Mildred G. Nesbit – Five Thousand – 00/100 Dollars, at Mahoning National Bank, Youngstown, without defalcation, for value received. Due . . . Payable at . . . "SARA IRENE BUDD." Judgment was rendered in favor of plainti...
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The question involved upon this appeal is whether defendant, Scofield Engineering Construction Company, a corporation, was the special employer of Howard Wilson Umsted, for whose death, alleged to have been caused by the negligence of the employees of said Construction Company, his father, Howard Claire Umsted, plaintiff herein, seeks to recover damages. If the Construction Company was, as it asse...
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The appeal is from a judgment in the defendant’s favor in an action brought by the plaintiff for the recovery of á commission claimed by plaintiff to be due him upon a contract of employment between himself and the defendant, by which he was employed in the capacity of a broker to procure a purchaser for certain real estate owned by the defendant, and for which he was to be paid a commission of f...
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This action was commenced to recover an alleged balance due, together with interest thereon, on account of a lot of hay purchased on January 12, 1925, by appellant from respondent corporation. Appellant, Haarer Elden Goss, doing business under the name of Chas. E. Goss Son, with offices in the city and county of San Francisco, was at the time the contract in suit was made and for some years prior...
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The petitioner herein seeks, by a writ of review, to have reviewed a certain proceeding and annulled a certain order of the Superior Court in and for the City and County of San Francisco, made and entered in an action for divorce, entitled Alyce Moore, Plaintiff, v. William H. Moore, Defendant. The facts upon which said application is based, and which are practically undisputed, are the following:...
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This appeal is prosecuted by the plaintiff from a judgment of the superior court in and for the city and county of San Francisco in the defendants' favor after the court had granted a motion for nonsuit at the conclusion of the plaintiff's case. The action was one instituted by the plaintiff for the recovery of damages for the death of her minor son, which occurred on or about May 4, 1922, while t...
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This is an appeal from a judgment in favor of the plaintiff in an action on a promissory note for $300. In his answer the defendant alleged certain false and fraudulent representations on the part of the plaintiff in procuring the contract which was the basis of and consideration for the note. By way of cross-complaint the defendant set forth more particularly the fraud alleged in the answer and p...
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This is an appeal by the plaintiff from a judgment against him, after defendants' motion for a nonsuit had been granted, in an action in which plaintiff sought to recover from the defendants damages for alleged conversion of an automobile upon the theory that at the time of its seizure the plaintiff was the holder of a valid and subsisting chattel mortgage upon said property. [1] The purported cha...
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This action was instituted by the plaintiff, a copartnership, against the defendant corporation to recover damages for the alleged failure of the defendant to deliver to the plaintiff certain Zinfandel grapes during the season of 1924, pursuant to a contract in writing between the aforesaid parties so to do, which contract was in the words and figures as follows: "Fresno, Calif., August 22d 1924. ...
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Appeal from order granting an injunction to prevent defendants from holding a special meeting for the election of an additional director of the defendant corporation, which additional director had been provided for pursuant to section 361 of the Civil Code.[1] The by-laws of the corporation provided for but five directors and also provided that "the directors shall be elected by ballot at the annu...
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The defendant was, during the year 192'4, a mining corporation organized under the laws of this state, *265 with its principal place of business in the city and county of San Francisco, for the purpose of extracting gold from gold-bearing gravel. The mine is situate in the county of Sierra. Appellant with others had long been an owner of stock and a director of said corporation, which apparentl...
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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 272 Action for libel based upon the publication by the defendants in the "Santa Cruz Evening News," a newspaper of general circulation, published in the city of Santa Cruz, of the following article: "A peremptory writ of mandate to compel the mayor and city c...
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This is an appeal by plaintiff in an action for the recovery of five thousand dollars as damages and for a perpetual injunction to restrain the alleged infringement by defendant of a certain label, device, or trademark used by it for bottled water. [1] Defendant suggests that this court is without jurisdiction to entertain the appeal because of the failure of plaintiff to give any sufficient notic...
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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 293 This is an action for damages for personal injuries sustained by plaintiff, a minor, when between eight and nine years of age. He had judgment for twenty-five thousand dollars and defendant has appealed. On December 24, 1922, at Cottonwood, Shasta County,...
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I concur in the order for the issuance of a writ of mandate herein, not only upon the grounds set forth in the majority opinion, but upon the additional ground that, even conceding the judgment in the case of Gray v. Yarbrough to be void upon its face, the respondent herein does not stand in such a relation thereto as would enable him to attack such judgment collaterally upon that ground. The...
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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 337 Upon the petition of appellant for a hearing by this court of this cause after decision by the district court of appeal, third appellate district, Plummer, J., writing the opinion, an order of transfer was duly made and the cause is now before us for deci...
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Action brought to recover possession of certain personal property of the alleged value of $1,250, and for $10,000 damages for the unlawful detention thereof. Plaintiff claimed to have been in possession of said personal property by virtue of a lease from C.H. Coddington, the owner thereof, and that defendants, on the fifteenth day of June, 1925, without plaintiff's consent and wrongfully, entered ...
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The first amended complaint in this action (which we will hereafter refer to as the complaint) purported to set forth two causes of action against the two defendants, each of which was separately stated and set out in a different or separate count. The defendants appeared separately and each filed both a general and special demurrer to each cause of action set forth in said first amended complaint...
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This is an appeal from a judgment in the defendant's favor. The complaint in the action was in two counts, each relating to a different cause of action. In the first alleged cause of action the plaintiff sought to recover a balance due upon two promissory notes dated, respectively, January 13, 1920, and April 6, 1920, each of said notes being secured by a deed of trust executed by C. Walter Brown,...
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This is an application for a writ of supersedeas. Plaintiffs commenced an action against the defendants in the superior court, in and for the county of Los Angeles, to recover from the defendants the sum of $3,571, with interest and costs, claimed to be due under a certain contract. The defendants filed an answer denying said indebtedness and also filed a cross-complaint, in which they alleged ...
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This action was brought by appellant to recover damages for injuries sustained by her in being knocked down by an electric car owned by respondent and operated at the time of the accident by respondent's employees. *Page 369 The trial court granted a nonsuit and the plaintiff has appealed. The evidence shows that the appellant was, at the time she was struck by respondent's car, in the act of cro...
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This is an action for personal injuries. The court instructed a verdict for the defendant W.P. Johnson, and the jury, of its own accord, returned a verdict for the defendant George Smith. Defendant Johnson having died subsequent to the trial, the action has abated as to him (De La Torre v. Johnson, 200 Cal. 754 [254 P. 1105], *Page 376 except perhaps for certain purposes which, in view of our con...
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This action was brought to annul and set aside a judgment in the superior court of the county of Calaveras and to quiet plaintiff's title to certain lands of which she was deprived by said judgment. The action in which said judgment was rendered, which it is sought by *Page 380 this action to annul and set aside, was entitled Rose Rolleri v. Martin Voinich et al., and was numbered 951 in said sup...
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This is a proceeding in mandamus to compel the Superior Court of the County of Los Angeles to entertain an appeal regularly taken thereto from a justice's court while sitting as a small claims court in said county under the provisions of sections 927-927p of the Code of Civil Procedure. [1] Admittedly the sole question involved is the validity of so much of section 927j of the Code of Civil Proced...
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This appeal is from each of two judgments entered against the defendant, Southern Pacific Company, in actions instituted to recover damages. The complaints allege, in substance, that the negligence of the defendant's employees was the proximate cause of the death of Douglas and the serious injury of White. Defendant denied the charge of negligence and urged the defense of contributory negligence. ...
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The above-entitled action was commenced in the superior court in and for the county of Los Angeles by the assignees of a contract to recover damages from the vendor of the property alleged to have been suffered by said assignees by reason of statements negligently made by said owner to said assignees as to the condition of the title of said real property. The facts are stated below: The se...
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This appeal is taken from a judgment of nonsuit entered in an action brought by Irving W. Martine against Carl Ingalls in his personal capacity, and also as doing business under the firm name and style of Commercial Transfer Company, to recover damages for the death of his son, John Irving Martine, alleged to have been caused by the negligence of the respondent on the third day of March, 1924. At ...
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This is an appeal by the defendant from that portion of a judgment which allows to plaintiff as alimony the sum of $50 a month until further order of the court. Defendant does not appeal from the portion of the judgment granting to plaintiff a decree of divorce nor from that portion which divides the community property between the parties; but it is contended that plaintiff and defendant have sett...
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This is an appeal by the plaintiff from that portion of the judgment entered herein which quiets the title to a certain piece of real property in the plaintiff in intervention. Plaintiff was a creditor of the defendant, and the trial court gave judgment in his favor for the amount of his debt. In the action he had attached certain real property, alleged to be the community property of defendant an...
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This is an appeal from an order denying the application of the appellant for letters of administration in the matter of the estate of Lewis R. Morris, deceased. The application of the appellant for such letters was made upon the alleged ground that she was the lawful widow of said deceased and as such the proper party to be appointed administratrix of his estate. The trial court denied her applica...
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This is an appeal from that portion of a decree of distribution in the matter of the estate of George B. Ellis, deceased, which orders one-fourth only of a cash item of $22,126.43 distributed to Pray Ellis, the surviving widow and appellant herein. Prior to July 14, 1923, the decedent was a widower having adult children and minor grandchildren. On that day he married the appellant. On November 1, ...
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This appeal is from an order of the trial court granting the motion of the plaintiff for judgment on the pleadings in an action to quiet title. The complaint herein was filed on October 11, 1922. The plaintiff therein set forth with much detail her chain of title to the property and also set forth with like detail the sources of the appellant's claim of an estate or interest therein and that his c...
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Defendant appeals from a judgment against it for $393, the amount, together with interest, paid by plaintiff upon a contract involving the purchase of real property, which contract plaintiff sought to have rescinded in the present action. Plaintiff alleged that in April, 1924, defendant represented to plaintiff that a certain piece of ground belonging to defendant in Riverside County, California, ...
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THE COURT. The respondent Lynch presents herein a motion for diminution of record and seeks thereby to have stricken from the files of this court the transcript of the *Page 423 testimony taken before the lower court. This attempt to have the reporter's transcript stricken is based upon the assertion that the appellant's notice to the clerk to prepare a record neglected and failed to request that...
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Appeal by C.E. Spencer, petitioner for letters of administration with the will annexed in the above-entitled matter, from that portion of an order of the superior court of the state of California, in and for the county of Los Angeles, whereby Wallace W. Wemott and Robert R. Curry were appointed executors of the last will of deceased and whereby the petition of said appellant was denied. [1] The qu...
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This is an appeal by the plaintiff from the judgment of the trial court made and entered after it had granted the motion of the defendant for a nonsuit at the close of all of the evidence in the case. The action was one for damages for injuries sustained by the plaintiff through the alleged negligence of the defendant in the operation of one of its cars on and along Spring Street at its intersecti...
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This action was commenced against the defendants Joe Parra as owner and Frank Fernandez as driver of a taxicab which, on September 4, 1924, backed into the plaintiff, causing the injuries complained of. Judgment was rendered against both defendants. The judgment as against the defendant Fernandez has become final and this is an appeal by the defendant Parra. The principal contentions of the appell...
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This is an appeal from an order of the superior court of the county of Santa Barbara refusing to grant a motion by defendant to set aside a decree of divorce granted by said court to plaintiff. The interlocutory decree was entered in April, 1923, and the final decree was granted in April, 1924. No personal service was made upon the defendant, the summons having been served by publication. The moti...
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Action to recover the balance due for grading streets, filling in certain lots, and removing earth from others in a tract of land in the city of Beverly Hills, in the county of Los Angeles, and to foreclose a lien upon said tract of land for said unpaid balance. The prayer of the complaint was as follows: "Wherefore plaintiff prays judgment against defendants for the sum of $5,357.70, with interes...
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Action for divorce upon the ground first, of desertion, and second, wilful neglect and failure to provide. Nonsuit was granted as to the first cause of action, but as to the second cause the court found that defendant had for a period of more than six years wilfully neglected to provide plaintiff with the common necessaries of life, having the ability so to do, and accordingly entered in her favor...
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This appeal is taken from a judgment entered against appellant on account of its obligations arising from the production of a motion picture. Judgment by default went against H. C. Maynard and Stuart Patón Pictures Company of Los Angeles. The appeal is prosecuted alone by Cinema Finance Corporation. Stuart Patón Pictures Company of Los Angeles was an association of individuals consisting of Stu...
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Action to quiet title to certain real property described in the complaint. The plaintiff's title to said real property was acquired at a sale under execution under a money judgment in his favor and against the defendant James K. Kidd. The record title to said real property at the date of said execution sale stood in the name of John E. Kidd. At the trial it was the plaintiff's contention that said...
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P.B. Paules and Max Hartfield, appellants, were, and for some months before the earliest contract considered herein had been, the owners of the real property which furnishes the basis of the action in which judgment for respondent was rendered. Prior to June 23, 1923, Morris M. Rudelson, respondent, was occupying as a tenant of appellants a room of the building erected on said real property in whi...
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This action was brought to recover damages for personal injuries alleged to have been caused by the negligence of the defendants. A motion for a nonsuit was granted as to the defendant Four-Wheel Hydraulic Brake Sales Corporation. At the close of the trial a judgment was entered in favor of the defendant Bach on an instructed verdict. The plaintiff moved for a new trial as to both defendants. The ...
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This appeal is from a judgment in favor of the plaintiff in an action instituted by him for the recovery of a commission alleged to be due in pursuance of an agreement between himself and the defendants involving an option for the sale of the latter's real estate. The evidence in the case is practically without conflict, showing that on March 1, 1924, the defendants executed an option agreement to...
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Appeal in an action for divorce by defendant from order denying his motions to set aside alleged attempted service of summons and default judgment. On July 19, 1920, plaintiff filed a complaint for divorce upon the grounds of cruelty and habitual intemperance, upon which no further action was ever taken. On March 2, 1922, she filed a so-called "supplemental complaint," praying for divorce upon the...
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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 467 This appeal is from a judgment in favor of the plaintiff in an action instituted by her for the recovery of the sum of five thousand dollars alleged by her to be due from the defendant upon a policy of accident insurance issued by it to one Mary Evelyn Mo...
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This is an appeal from a judgment dismissing the action after an order made sustaining a demurrer to the fourth amended complaint without leave to amend. It appears from said complaint that plaintiff was on the twenty-second day of March, 1922, adjudged insane by the superior court of the county of Los Angeles, and committed to the Southern California State Hospital at Patton, California, and t...
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This is an appeal from a judgment in favor of the defendants after the sustaining of general demurrers to the complaint. In the complaint it is alleged that the plaintiff is the owner of a chattel mortgage upon a Studebaker *Page 485 automobile, to recover which the action was brought. This chattel mortgage was given by the defendant Frank to secure the balance due on the purchase price of said a...
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Plaintiff sues defendant for the death of his son, a minor of the age of eighteen years, basing his cause of action upon allegations of negligence with respect to the management and operation of a logging railroad upon which deceased was riding at the time of his death. We are here concerned solely with the sufficiency as a pleading of the second amended complaint, to which the court below sustain...
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Plaintiff sues to recover damages for the alleged negligence of defendant with respect to the management and operation of a logging railroad upon which he was riding when the locomotive jumped the track, hurling him from the tender to the ground and severely injuring him. We are concerned solely with the sufficiency as a pleading of the second amended complaint, to which the court below sustained ...
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This appeal is from an order made after judgment, namely, an order setting aside and vacating a judgment of dismissal previously rendered in this action. [1] It is first contended by appellants that the notice of motion to vacate and set aside said judgment failed to set forth or state the grounds upon which said motion would be made and, therefore, the order made granting said motion was erroneou...
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Appellant was convicted of conspiracy to violate the Corporate Securities Act (Deering's General Laws, Act 3814, p. 1406); also on four counts charging substantive offenses in violation thereof. He has appealed from the judgment and order denying his motion for new trial. The indictment in count one charges a conspiracy to violate said act by taking subscriptions in the state of California for sha...
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This is a proceeding to review and annul an order of the Industrial Accident Commission. On October 2, 1922, John George Slate, a boilermaker's helper, thirty-seven years of age, suffered an injury arising out of and in the course of his employment with the petitioner, Bartlett Hayward Company, which caused the loss of his right eye. On June 1, 1923, he filed an application for compensation under ...
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There are before us for consideration appeals in two causes, though in but one transcript. The first is a divorce action begun by the plaintiff, Anna M. O'Connell, against the defendant, Daniel O'Connell, which never ripened into a final decree. The second action is one in equity to impeach for extrinsic fraud the interlocutory decree of divorce granted on the cross-complaint in the above-entitled...
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Plaintiff appeals from a judgment for defendant in a suit brought on a rejected claim filed against the estate of the deceased, Henry C. Weiner. The complaint alleges: "That on or about the month of November, 1919, at Los Angeles, California, the plaintiff herein and Henry C. Weiner, now deceased, entered into an agreement whereby this plaintiff was to furnish said decedent, Henry C. Weiner, with ...
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This appeal is from an order of the trial court made and entered upon October 28, 1925, denying the motion of the plaintiff and appellant to set aside his default and the decree rendered against him thereon by reason of his failure to answer the cross-complaint of the substituted defendant in said action. The original com *548 plaint in this action to quiet title to certain real property in the...
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The trial court granted a motion for a nonsuit and entered judgment accordingly. The plaintiffs, *Page 551 husband and wife, have appealed. The plaintiff husband is joined because of the marital relationship. The defendant is a regularly licensed and practicing physician and surgeon. On March 4, 1921, the plaintiff, Rose Patterson, was suffering from a swelling in her face. She consulted the defe...
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The questions involved in this proceeding are presented upon the application of the petitioner herein for the issuance of a writ of mandate directing the respondents herein to desist from doing a certain series of official acts looking to the preparation, printing, and procuring of certain statements and other printed forms and blanks which are to issue preparatory to the assessment and collection...
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Annie Morgan died intestate, leaving an estate consisting of real and personal property situated in the county of Los Angeles and valued at the sum of five thousand dollars or thereabouts. The appellant Susan O. Casey, claiming to be the half-sister of said deceased and her next of kin, waived her right to be appointed administratrix of her estate, and upon her written renunciation and request one...
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This is an appeal by plaintiffs from a judgment of nonsuit entered after both sides had concluded the introduction of their evidence. The single issue presented is the plea of the statute of limitations, subdivision 2 of section 338 of the Code of Civil Procedure. Respondents' statement of the facts and of the question involved is accurate and as follows: "September 22, 1917 – Eloise Wright Porter...
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This is an appeal from judgment in favor of plaintiffs in an action to recover an alleged sum of money due them as an additional royalty or bonus under the provisions of an oil lease. Plaintiffs, owners of certain real property, entered into a written agreement with defendants MacGregor and Simmel, leasing their land to these parties for oil drilling purposes. About two weeks later said lease was ...
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The defendant, George Ferlin, was charged in an information filed in the county of Los Angeles with the crimes of arson, murder, and the destruction of insured property. After trial the jury returned verdicts finding him guilty as charged in each of the three counts of the information. The verdict finding the defendant guilty of murder carried with it a recommendation that he be imprisoned in the ...
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THE COURT. This is an appeal from a judgment entered upon the verdict of a jury awarding damages to the plaintiff in the sum of two thousand dollars for personal injuries alleged to have been incurred on September 28, 1922, by reason of the negligence of the defendants. At the time of his injury the plaintiff was engaged as a carpenter in the construction of a residence building in the city of Los...
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This is an appeal by certain legatees from the order settling final account and directing final distribution of the estate of Christine M. Kelpsch, deceased. There is no dispute as to the account itself. The dispute is as to the terms of the decree of distribution. The court held one-half of the estate to be community property and to belong to the husband, Joseph A. Kelpsch, he and Ellen C. Moline...
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This appeal is taken from an order denying the contest of W.B. and J.F. Oldham to the admission to probate of a certain document purporting to be the last will and testament of John Y. Oldham, deceased, and admitting said document to probate as the last will of said deceased. The ground of said contest is that said document, which purports to be a holographic will, is not entirely written, dated, ...
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By this action plaintiff seeks to recover damages for personal injuries sustained through collision with automobile driven by defendant. The complaint alleges negligent operation of said automobile by defendant; the answer contributory negligence on the part of plaintiff. Verdict of the jury was in favor of plaintiff, and defendant has appealed. Briefly, the following facts are fairly established ...
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By the information filed against the defendant in this action he was charged with driving an automobile which struck a human being, to wit, Isaac Pupkin, and said defendant failed to stop his automobile and render assistance to said Isaac Pupkin, "so struck as aforesaid." Upon this charge he was tried and found guilty by a jury, and from the judgment of conviction, entered upon the verdict of the ...
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This is an appeal by defendant from a judgment of the superior court of Shasta County, after verdict by a jury, awarding plaintiff damages in the sum of $15,000 for personal injuries. The plaintiff was but nine years of age at the time of the accident which resulted in his injuries. He suffered an electric shock and electric burns while in an apple tree on a ranch in Shasta County, which ranch was...
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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 This proceeding has arisen out of an endeavor on the part of John Randolph Haynes and his wife, Dora Haynes, to procure a final ruling of the courts *Page 644 upon the validity, in whole or in part, of a certain trust sought to be established by them and...
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THE COURT. This is an appeal from a judgment in favor of plaintiff in an action to foreclose a mechanic's *Page 659 lien. Abraham Schneider in his lifetime, as owner, made a contract with W.T. Jackman Company, one of the defendants, as builder, for the construction of a fifteen-unit bungalow court on Cahuenga Avenue in the city of Los Angeles. The Jackman Company agreed to furnish all labor and m...
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This action was instituted by the plaintiff for the purpose of enjoining the city of Redwood City and its municipal officers from proceeding with the prosecution of a pending criminal action in the recorder's court of said city, and from instituting or maintaining any further actions against plaintiff, for maintaining and carrying on a lumber-yard in said city in violation of ordinance number 211,...
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This is a proceeding in certiorari to review an award of the Industrial Accident Commission for payment of $150 for the burial expenses of John James *Page 677 Uttley Brooke, an unmarried minor nineteen years of age, who was drowned in Santa Monica Bay on April 8, 1926, while in the service of the Morris Pleasure Fishing, Inc. The petitioner was the insurance carrier of the employer; and the ques...
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This record presents certain complex questions of law controlled by federal decisions. The facts, however, are not in dispute and appear from the judgment-roll to be substantially as follows: On June 26, 1925, plaintiff below was the holder of a passenger ticket entitling her to transportation in interstate commerce over defendant's railway system from the city of Lodi, state of California, to the...
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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 695 This is an appeal by Glenn A. Fulmer, as administrator, from an order settling and disallowing certain portions of the first and final account of his administration of the estate of his mother, Luella Fulmer, deceased. In the account the administrator cha...
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An information was filed in the superior court in and for the county of Los Angeles charging the defendant in three counts – manslaughter in the first count, operating a motor vehicle on a public highway while under the influence of intoxicating liquor in the second count, and with failure to stop, render aid, etc., in violation of section 141 of the California Vehicle Act, in the third count. *Pa...
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THE COURT. A hearing was granted by this court after decision by the district court of appeal, in and for the second appellate district, division one, affirming the judgment of the trial court. Upon a full and careful reconsideration of the questions involved in this appeal we are of the opinion that the district court of appeal was correct in its reasoning and conclusion upon the merits of this a...
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The respondents move to dismiss three appeals, to wit, an appeal from an order sustaining a demurrer *Page 722 to the amended complaint, an appeal from an order striking out certain portions of the amended complaint, and an appeal from the judgment entered after demurrer sustained without leave to amend.[1] The respondents move to dismiss the first two appeals upon the ground that the orders ther...
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The plaintiffs commenced this action in the year 1915 to quiet their title to certain lands and premises *Page 725 in the town of Cacheville, county of Yolo, state of California, lying in and along the bed of a stream known as Cache Creek and between the center or water line of said stream and the easterly bank thereof. The plaintiffs also and in a second count, joined by way of supplemental comp...
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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 733 This is a petition for hearing in this court after decision of the district court of appeal, second appellate district, division one (Cal.App.), 259 P. 457, discharging the writ of habeascorpus sued out by petitioner and remanding him to the custody of th...
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This is a suit by plaintiff corporation against the defendant Calvin E. Jackson, as sheriff of Orange *Page 749 County, defendant Fidelity Deposit Company of Maryland being also included as surety on his official bond. The cause of action is for conversion of personal property, known as farm equipment, after plaintiff had made third party claim therefor in the regular way. The sheriff justified ...
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Norman W. Sayers, a resident of Pennsylvania, died testate on or about the fifteenth day of July, 1926. By his last will and testament he bequeathed his estate to his widow, Emma L. Sayers, and a number of other legatees and devisees. Among the provisions of the will he left a house and lot in Los Angeles, the only property owned by him in this state, to his daughter, Elizabeth S. Mervyn, for life...
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From a judgment on a verdict in favor of the plaintiff, the defendant prosecutes this appeal. The action is one for damages for personal injuries received by the plaintiff in an automobile accident. Briefly the facts are as follows: On the evening of March 9, 1924, the plaintiff was operating an automobile on the public highway between Johnstonville and Susanville, in Lassen County. As he approac...
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This proceeding was brought to review and annul an order of the Industrial Accident Commission. The facts in brief are as follows: The petitioner, Brunski, suffered a head injury in 1919 when working for the Ford Motor Company in the middle west. Later on he filed suit against that company for damages. His deposition was taken in Kansas City in 1923, in which he stated that following his said inju...
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This cause is before us on an order of transfer to this court after decision by the district court of appeal, first appellate district, division one. The cause was taken over by us for the reason that we were not in accord with that portion of the decision which held that a copartnership existed between David S. Johnston, the decedent, and defendant, George W. Kitchin, as to the ownership of the r...
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Respondents move to dismiss the appeal from the judgment on the ground that no transcript of the record, certified to be correct by the clerk of the court below, or the attorneys, has been filed here within the time required by rule II of this court, and that no proceeding, either for the settlement of a bill of exceptions, or for the preparation of a transcript under the provisions of section 953...
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This is an appeal by plaintiff from a judgment against her after separate demurrers of the defendants had been sustained to her third amended complaint. The third amended complaint alleges, in substance, that the defendants are father and son; that at all times mentioned in the complaint the father was a doctor and the son was a lawyer; that the father was the physician of plaintiff, and in Novemb...
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Plaintiff appeals from a judgment in favor of defendants in an action brought by him as assignee to recover $3,250 alleged to have become due and owing to his assignors as a real estate brokers’ commission for services performed by said assignors in effecting the exchange of ranch property owned by defendants for an apartment house owned by G-. R. Searl and H. Geraldine Searl, his wife. The com...
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Defendant was convicted of two felonies of the same class on verdicts simultaneously rendered. Judgment was imposed upon him for both offenses; the sentences, *Page 783 under section 669 of the Penal Code, would run consecutively. He then moved for a new trial and in arrest of judgment, both of which motions were denied, and he has appealed from said judgments and from the orders denying his said...
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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 789 The plaintiff and the defendant herein were married in November, 1902. In 1912 the plaintiff sued the defendant for divorce on the sole ground of wilful neglect. The complaint alleged the weekly earnings of the defendant and that there was, as the issue o...
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MEMORANDUM CASE. THE COURT. [1] Application for a writ of prohibition directing the respondent Superior Court to desist from further proceedings in an action brought to compel the petitioner here to submit a dispute or controversy to arbitration pursuant to the terms of the contract entered into before the present law on arbitration became effective. (Code Civ. Proc., secs....
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MEMORANDUM CASES. This is one of three motions to dismiss appeal. During the administration of the estate of Leonard Ovid Vaughan, deceased, the court below made an order confirming the sale of real property made by the executor. Edna Vaughan Daniels, a daughter of the deceased, and one of the persons entitled to a specific bequest of one thousand dollars under the provisio...
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[1] Upon the authority of People v. Ventura Refining Co.,ante, p. 286 [268 P. 347], and People v. Richfield Oil Co.,ante, p. 301 [268 P. 353], the judgment in this cause must be affirmed. The contracts here are identical with the contracts considered in the case last above cited. The only reason for separate appeals in the two cases was that in one of them the question arose as to when the appella...
Views: 5

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