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All Reporters → cal-unrep → Volume 2

Opinions in cal-unrep Volume 2

This is an action to determine a contest arising in the state surveyor general’s office, for the purchase of a portion of a sixteenth section of public school lands belonging to the state. The lands were surveyed in the field and the township plat approved in the year 1861, and the plat was returned to the office of the register of the local land office on the eleventh day of April, 1873. Applicat...
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The judgment in the action of dwell v. Corbett,.for the recovery of the assessment for the construction of a sewer, did not bind the interest of the plaintiff in the premises in controversy. The statute of April 25, 1863, provides for an action against the owner, but it does not declare that notice to the person in possession shall be notice to the owner out of possession; and if it did so provide...
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The motion for a nonsuit was, under the circumstances, properly denied. But the court erred in giving to the jury the first instruction. The statute recited in that instruction has reference to the management of a train of cars in motion and approaching a street crossing, and provides that unless the required signal of its approach be sounded, as therein provided, the company shall be liable for a...
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Section 48 of the act of May 20, 1861, providing for the management of the affairs of railroad companies, is as follows: “In case any passenger on any railroad *10shall be injured on the platform of a car, or on any baggage, wood, gravel, or freight cars, in violation of the printed regulations of the company, posted up at the time in a conspicuous place inside of its passenger cars then in the tr...
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There was evidence tending to prove both a contract of marriage in the present and also a contract per verba de futuro cum copula. This must be decisive of the case, for, assuming a substantial conflict in the evidence, we cannot disturb the findings of the court below. Judgment and order appealed from affirmed....
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It appears from the record that a patent was issued by the state to the defendant for the lands in controversy on the second day of April, 1873; that on the seventh day of April, 1873, a certificate of survey in the name of plaintiff was filed in the office of the surveyor general; that on the same day the plaintiff filed his protest against the issuing of a patent to the defendant for the portion...
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The action is to enforce the payment of an assessment levied on lands of the defendant Hager within swamp land district No. 108. A demurrer to the complaint was overruled by the court and we think correctly. The swamp land district was organized under the act of March 28, 1868, entitled “An act to provide for the management and sale of the lands belonging to the state” (Stats. 1867-68, p. 507), an...
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This is an appeal by the plaintiff from an order made and entered in the court below, on the motion of the defendant, to retax the costs, striking out from the cost bill the item of the fees of the district attorney. There was also an appeal in the same case by the defendants from the judgment and from the order denying their motion for a new trial. These appeals were argued and submitted together...
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It is urged by the defendants that the action is ejectment and that they were entitled to a trial by jury. But the point is not well taken. The plaintiff deraigns his title through the power of attorney to Camarena, a copy of which is annexed to and made a part of the complaint. This instrument was not under seal, and was therefore insufficient to authorize á conveyance' of the legal title. If the...
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The action is ejectment for a portion of the sixteenth section; and so far as the case shows, the defendant is a mere intruder without title or color of right. The plaintiff relies, 1st, upon a duplicate receipt issued by the receiver of the proper local United States land office, to one Ayres, certifying that he had made full payment under the Pre-emption Act of 1841, for the land in controversy;...
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Except in one particular this case is not distinguishable from Dean v. Davis, No. 4706 [51 Cal. 406], decided at the present term, and the judgment must be affirmed on the authority of that case, unless there be something in the particular referred to which shall lead to a different result. In addition to the causes of action relied upon in Dean v. Davis [51 Cal. 406], the complaint in the present...
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Is the plaintiff entitled to a decree setting aside the agreement for the sale of the rancho “Tobango Malibu” made with defendant Carrie S. Lewis? The complaint alleges failure to perform on the part of defendants and that they have abandoned the agreement. The answer admits the failure and contains no offer to perform, but alleges that the agreement is void, because defendant Carrie S. Lewis was ...
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1 The pleading upon the part of the defendant did not amount to a cross-complaint, for this is unknown to the Code of Civil Procedure (sections 420, 462). There was, therefore, no necessity for a reply upon the part of the plaintiff, the new matter found in the answer being denied by force of the statute. In this view it was incumbent on the defendant at the trial to support his answer by proof, i...
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The power of the board of supervisors to cleanse the streets of the city of San Francisco is subject to legislative control, both as to the extent of the work to be done and the mode in which the power is to be exercised. Assuming in favor of the appellant that no legislative restraint upon either the power or the mode had been imposed prior to the passage of the act of April 3, 1876 (page 795), i...
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The complaint in the action of Kane v. Castro et al. alleged “that the defendants Alexander Finance and Charles M. Hitchcock have, or claim to have, some interest in or claim upon said premises hereinbefore described, or some part thereof, as purchasers, mortgagees, judgment creditors or otherwise, which interest or claims are subsequent to and subject to the lien of the plaintiff’s mortgages.” Th...
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The respondent claiming to be the widow of Wm. McCausland, deceased, applied to the probate court for a family allowance out of the estate. The application was *40resisted by the heirs at law, on the sole ground that the applicant was not the widow of the deceased. This was the only issue in the cause. At the trial the applicant offered herself as a witness on her own behalf to prove her marriage ...
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At the trial it was admitted: “The plaintiff and his assignors delivered the wheat described in the complaint to Morgan’s Sons, to be shipped by them to England for sale. Morgan’s Sons placed the same on board *42the ‘Pride of the Port’ for shipmént in accordance with said agreement. ’ ’ The wheat was shipped by Morgan’s Sons, and the bill of lading ran to them. The defendant Baker was in actual p...
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When this action was commenced, section 3336 of the Civil Code read: “The detriment caused by the wrongful conversion of personal property is presumed to be,—1. The value of the property at the time of the conversion, with the interest from that time, or, where the action has been prosecuted with reasonable diligence, the highest market value of the property at any time between the conversion and ...
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A settlement of the partnership accounts between Rogers and Powell, as contemplated at the time of the sale of the sheep by Powell to Hoglan, can only be made in a proceeding to which both Rogers and. Powell are parties. Judgment reversed and cause remanded, with directions to permit the parties to amend the pleadings so as to make Rogers and Powell parties to the action....
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1 Under and by virtue of the provisions of the act of Congress of July 26, 1866, “granting the right of way to ditch and canal owners over public land,” etc., one who has actually appropriated the waters of a stream on the public lands before the acquisition by another of the United States title to a tract of land on the stream below has acquired the exclusive right to the use of the waters approp...
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to the execution of the mortgage, the defendants, Harter and his wife, filed a declaration of homestead on the mortgaged premises. More than four years after the maturity of the note, Harter, the maker thereof, and the plaintiff, the payee, extended the time of the payment of the note for one year. That agreement, even if it would have kept the mortgage on foot, as against the husband, had not the...
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The action is ejectment against several defendants, for the recovery of fifteen hundred acres of land, claimed by the plaintiff to be included in the patent for a confirmed Mexican grant, under which the plaintiff deraigns title. The defendant Sprague (who is the only appellant) disclaimed title to all the land in controversy, except a tract of one hundred and seven acres or thereabouts, which he ...
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The indictment in this case is for the embezzlement of a mare, alleged to be of the value of fifty dollars, and the defendant having been found guilty as charged in the indictment, was sentenced to the state prison for a term of years, and appeals from the judgment. It is insisted that inasmuch as the property did not exceed fifty dollars in value, the punishment could not exceed that for petit la...
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Action for libel and judgment for the plaintiff, from which the defendant appeals. The only points urged by the appellant are: 1. That there was a fatal variance between the libel declared upon and the publication put in evidence by the plaintiff; and 2. That the publication contained other actionable, libelous charges against the plaintiff in addition to those declared upon, *59and that the court...
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The prosecution proved by the testimony of Dr. Tooley that he made a post-mortem examination of the body of Jack Lett; that he found a gunshot wound on his left side, at the third rib; that he found the pistol ball under the skin near the lower point of the right shoulder blade; that he probed the wound and found that the course of the ball was direct, and that the ball had not been deflected from...
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The nature and effect of the instrument executed by and between Mary Ann Roussel and husband and McLeran has not been discussed by counsel, but they treat it as a deed of conveyance, and no objection is suggested as to the validity of any of the clauses of the instrument. One of those clauses prohibits McLeran from selling, conveying or otherwise disposing of any of the lands without the written c...
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The action was brought under the second subdivision of section 1160 of the Code of Civil Procedure, it being alleged that the defendant entered upon the premises during the absence of the plaintiff. The defendant, in order to prove that his entry was not unlawful, introduced in evidence a contract for the sale of the lands by the Central Pacific Railroad Company to Baum; also an agreement between ...
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When a guardian of the estate of an.infant has been appointed by the probate court, the jurisdiction of all proceedings instituted for the purpose of paying the indebtedness incurred in the maintenance and education of the infant, or for the purpose of raising money for his future maintenance and education, pertains exclusively to the probate court. The district court, therefore, has no jurisdicti...
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On two of the three notes mentioned in the mortgage the interest is payable annually, and if not so paid, it is to draw interest at the same rate as the principal. The mortgage contains a stipulation to the effect that if the principal or interest shall not be punctually paid when the same becomes due, as in the promissory notes mentioned, then the principal sum and interest shall be deemed and be...
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The defendant was indicted under the provisions of section 476 of the Penal Code. The court in*69strueted the jury that they must acquit the defendant unless it was proven that T. A. Dowd, the name signed to the check in question, was a fictitious person. This proposition is not contested by the prosecution. The evidence failed to prove that fact, and the jury should, on that ground, have acquitte...
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The demurrer to the complaint ought to have been sustained. The complaint does not aver that at the time of the assessment, or afterward, the assessor demanded of the defendant the statement required by the first section of the act of March, 1874 (Stats. 1873-74, p. 376). Unless such demand was made, the defendant was not in default, whether he had then determined to remove the sheep to another co...
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The prisoner was arrested in the city and county of San Francisco on a warrant issued by a justice of the peace of the county of Sacramento, upon a charge of grand larceny, and is now in the custody of the arresting officer, whose duty it is to take her before the magistrate who issued .the warrant, or some magistrate of the same county, without unnecessary delay. We have examined the clauses of t...
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The allegations of the complaint in substance, are that one Calderwood obtained a judgment against the defendant corporation for the possession of thirteen hundred and thirty-three and one-half shares of its capital stock, or fifteen thousand six hundred and sixty-six dollars and sixty-six cents. That prior to said judgment, Calderwood, for a valuable consideration, transferred to the plaintiff in...
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The defendant in his answer does not deny any of the allegations of the complaint, which is in the ordinary form of one upon a promissory note. But it is alleged in the answer that the note sued upon is secured by a mortgage bearing even date therewith, executed by the defendant to the plaintiff upon, real estate, which is particularly described in the answer. A copy of the mortgage is annexed to ...
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This was an action, of claim and delivery for one net, three boats and fishing tackle alleged to have been taken and wrongfully detained from the plaintiff. It appears that the property belonged to the plaintiff, who had rented it to certain Chinese fishermen for the purpose of fishing in. the tide waters of the state. In December, 1878, these men, who had possession of the property, were catching...
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The appeal in this case is from a decree of foreclosure of a mortgage which was given by one Ellen Job-son on the second day of March, 1872, to secure payment to *80the plaintiff of the promissory note described in the pleadings. The mortgagor (Ellen Jobson) died December 28, 1872, leaving a will which was admitted to. probate; and letters testamentary were issued to the defendants, who qualified ...
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It may be admitted that one who takes a mortgage of land in the sole and exclusive occupation of another than the mortgagee, can disprove notice of that other’s claim only by showing that he made every proper inquiry in respect to the rights of the possessor and failed to obtain information. That such should be the effect of a possession, however, it must appear that the possession is open, visibl...
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The information charged grand larceny, and the jury found the defendants guilty as charged. The court instructed the jury: “Under our law a larceny is committed in every county into which the thief takes the property.” The crime of larceny is complete when the felonious taking dr asportation is consummated—that is, when the goods are removed from their place of deposit or the lawful possessor is d...
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The indictment charges that the defendant, on the 25th of October, 1879, at the county of Los Angeles, “did unlawfully and feloniously take, steal, and carry away one horse of the personal goods and chattels of one Jose Antonio Perez,” etc. The indictment is sufficient: People v. Littlefield, 5 Cal. 355; People V. Strong, 46 Cal. 302. At the trial Perez testified that the horse in question was his...
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The plaintiff in his complaint alleges that he and the defendant are the owners as tenants in common of a certain tract of land containing one hundred and twenty-seven acres, or thereabouts, and being a portion of the Rancho Cañada de Raymundo, situated in the county of San Mateo; that the* defendant excludes the plaintiff from the possession, wherefore the latter sues to be let into possession wi...
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It having been heretofore stipulated by the parties to this cause that the decision of this court in Shuggart v. Lycoming Fire Insurance Company [55 Cal. 408] shall be the decision in this action, with like effect as if rendered herein, and that a like order and disposition of this cause shall be made herein (with certain provisos, the conditions of which do not exist), and this court having, on t...
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The disposition of this case depends upon the question whether a certain declaration of homestead, filed by the defendant, Mary H. Shelby, was valid or invalid. At the time of the filing of the declaration, the premises embraced in it were owned in common by John L. Shelby, the husband of the declarant, and one Hinckley, each owning an undivided one-half. The interest of Shelby was the common prop...
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It having been heretofore stipulated in this ease by the attorneys for the respective parties that the judgment in this cause shall depend upon and be the same as should thereafter be entered in the case of Glenn v. Arnold, No. 7157, and this court having rendered its judgment in said case of Glenn v. Arnold, affirming the judgment and order of the court below, it is ordered that the judgment and ...
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By an act of the legislature of the state, passed April 4, 1870, the people of any county of the state "who proposed to aid in the construction of a railroad in their county were authorized to vote upon the proposed aid, at an election to be held on a day and at the places in the county to be named in a notice of election for that purpose. The statute required that there should be stated in the no...
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The question in this case is as to the conclusiveness of the survey of the boundary line between Sonoma and Napa counties, as approved by the surveyor general of this state. The court below held that it was conclusive, and refused to receive evidence to contradict the survey. Section 3972, Political Code, reads: “All surveys finally approved under the provisions of this chapter are conclusive asce...
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The attorney general moves to dismiss the appeal taken by the defendant from an order of the superior court granting him a new trial. No such appeal is authorized by the Penal Code. Appeal dismissed....
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The question involved in the case was passed on by the court in the case of Dupond v. Barstow, 45 Cal. 446, and upon the authority of that case the judgment is affirmed....
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We see no error in the record in this case. The judgment and order are affirmed....
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The order of August 2, 1878, was not appealable: Code Civ. Proc., secs. 939, 963. The transcript contains no final judgment. The order of the 15th of November, 1878, denying plaintiff’s motion to vacate and set aside the final judgment11 entered on the second day of August, 1878,” may have been made for the very reason that no such judgment had been entered. For aught that appears, plaintiff may h...
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The defendant was charged, by information, with the crime of libel. He filed a demurrer to the information, which was overruled, whereupon he entered a plea of “not guilty.” Subsequently he withdrew that plea and entered a plea of “guilty,” after which judgment was pronounced against him. From the judgment he brings this appeal on the ground that the facts stated in the information are insufficien...
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This appeal is taken from the judgment alone. The ground of the appeal is the alleged insufficiency of the information. This objection is permitted by the statute to be taken advantage of in three ways, and three ways only— *111that is to say .• 1. By demurrer; 2. At the trial, under the plea of not guilty; and 3. After trial, in arrest of judgment: Penal Code, secs. 1004, 1012. In the present cas...
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This is the second motion to dismiss the appeal in this ease upon the grounds that the printed transcript of the record was not filed within forty days after the appeal had been taken, nor was a copy of it, or of the written transcript, served upon the respondent; nor is there upon the transcript, as filed, any written evidence of its service, or of a waiver of such service, as required by rule 2 ...
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This is a suit to foreclose street assessment in San Francisco. *114The board of supervisors declared their intention and ordered that the sidewalks on Leavenworth street from Pacific to Jackson streets be “reconstructed.” Lot 8 on which it is sought to enforce the assessments— is represented on the diagram accompanying the assessments with a frontage of eighty-six feet nine and one-quarter inches...
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On the authority of Clark v. Porter, 53 Cal. 409, and Diggins v. Reay; 54 Cal. 525, judgment and order reversed and cause remanded for a new trial....
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Plaintiff filed his complaint in the late District Court of Sutter County, against defendants, who then constituted the Board of Supervisors of that county, and prayed “ that the defendants be forever restrained and enjoined from reconstructing or repairing said levees, or any of them, or from in any manner damming up or obstructing the natural flow of waters into and through the said Butte Creek ...
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The defendants were indicted in the late county court of Santa Clara county for the crime of grand larceny; and the ease having been submitted to a jury, the following verdict was rendered therein: “We, the jury, find the defendant guilty as charged in the indictment. ’ ’ The foregoing verdict, having been entered of record and read to the jury, was by them severally declared to be his verdict, wh...
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This is a proceeding for the removal of the defendant as attorney and counselor at law, taken under section 287 and following sections of the Code of Civil Procedure. Several charges of professional misconduct were made against the defendant, and much evidence was talcen in support of the accusation, and also on behalf of the defendant. We have carefully read the evidence, and do not think that th...
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Application is made to withdraw the remittitur issued in the above-entitled case. It appears that the remittitur was issued in 1870, more than ten years ago, and no excuse is shown for the laches. This is of itself good ground for denying the application. Motion denied....
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This is an action instituted by plaintiff to recover of defendants damages for two alleged assaults accompanied by battery. On the trial the jury rendered a verdict for plaintiff. The defendants moved for a new trial, which was denied, and they prosecute this appeal from the judgment and the order denying their motion for a new trial. The defendants offered in evidence on the trial the judgment-ro...
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The charges of professional misconduct made against the defendant, Turner, having been satisfactorily disproved by affidavits on file, and the attorney by whom the charges were preferred having moved the court to dismiss the same, all proceedings in the case are hereby dismissed....
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The statute requires, as a condition precedent to the issuance of a certificate of election, the declaration of such election by the board of election commissioners. There was no such declaration by the board of election commissioners in this case. Besides, this court, previous to the last municipal election in the city and county of San *124Francisco, determined that under the existing laws the c...
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The return to the writ of certiorari shows that one Joseph Barron commenced an action in the justices’ court of San Francisco to recover, of petitioner, as stockholder in the “California Mutual Life Insurance Company, ’ ’ corporation, his alleged proportion of the indebtedness of the company upon an overdue policy; that petitioner, de fendant in the action, demurred to and answered the eom*125plai...
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After sustaining a demurrer to the complaint in this action, the court below dismissed the action, and from the judgment of dismissal comes this appeal. Substantially, the complaint shows that the plaintiff and defendant Ramona Jones are sisters, and two of eight heirs at law of Juana Lugardo Malo, deceased; that the defendant D. W. Ap Jones is the husband of his codefendant Ramona, brother in law...
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Plaintiff brought an action of ejectment to recover certain lands described in his complaint. Upon the land sued for there was a wharf, built under a franchise granted by the state to one Collins, under whom defendant derived title. Judgment passed for plaintiff; there was a motion for a.new trial, which was denied, and this appeal is from the judgment as well as from the order denying a new trial...
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This action is for the foreclosure of a mortgage executed by Alonzo E. Horton. All the defendants made default. The appeal is from the judgment. The only appellant is Levi Chase, who was made a party defendant as claiming to have some estate or interest in the mortgaged property, or lien or demand on it, or some part of it, which claim was alleged in the complaint to be subject and inferior to the...
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I concur in the judgment. The specification referred to in the contract commences: “All the east-iron work to be made of the best quality of pig iron.” If iron in pigs is graded or classified in the trade—the classes being generally recognized among dealers, foundrymen, and other workers in iron—I think the specification called for the first or best class, independent of the circumstance that ther...
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Upon the trial of this case, in the district court, the court, in refusing defendants’ motion for a nonsuit, said: “So far as the fraud in this ease is concerned, it is far from being a strong case of fraud, and I should be inclined to hold that there was no fraud were it not for the fiduciary relations of the parties, taken in connection with the relation that Conway held as an officer of the Uni...
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This is an appeal by defendant Palomeres from a default judgment. The affidavit of service of summons does not show that affiant was over the age of eighteen years at the time of the service. On authority of Maynard v. McCrellish, 57 Cal. 355, and Howard v. Galloway, 8 Pac. C. L. J. 1060, judgment is reversed and cause remanded....
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On the 6th of July, 1878, a judgment was entered against Carmen Dunphy, from which, and from an order denying her motion for a new trial, she appealed to this court on the 27th of March, 1882. The respondent now moves in this court to have the appeals from both the judgment and order denying the motion for a new trial dismissed, on the ground that neither of said appeals was taken within the time ...
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It does not appear from the pleadings or from the evidence in this case how much of the money offered to be paid on behalf of the defendants to plaintiff was on behalf of the defendant Gove, nor how much on behalf of the defendant Hyde. If the money was tendered on behalf of Hyde, doubtless plaintiff would be entitled to the benefit of his purchase under the execution sale; and if the money, or an...
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This is a proceeding, by writ of review, to review the action of the superior court in declaring a decree of settlement of account, distribution and discharge to be void, and in setting the decree aside. The superior court, after hearing the evidence, found that the executor rendered a final account for settlement, and at the same time filed a petition for the distribution of the estate; that the ...
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This is an action on an undertaking given to prevent the levy of a writ of attachment. In such eases it is well settled that the plaintiff must allege and prove the consideration for which the undertaking was executed: Coburn v. Pearson, 57 Cal. 306, and cases there cited. While the complaint in the present case counts on the execution of an undertaking to prevent the levy of the writ, there is ne...
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The alleged error of the court below in holding an order extending the time for completing the contract, made after the expiration of the period originally fixed, to be valid, is not specified in the statement on motion for a new trial. The point decided in Beveridge v. Livingstone, 54 Cal. 54, will not be considered on this appeal: Code Civ. Proc., sec. 659, subd. 3. But the record before us pres...
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In this case, which was ejectment, there was judgment by default for plaintiff against three defendants, who moved to set aside the judgment. The court granted the motion, on paying costs of motion and entry of judgment. From this order plaintiff appealed. We have examined the affidavits on which the court set aside the judgment, and find no abuse of discretion which would warrant this court in in...
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This was a proceeding to condemn a strip of land belonging to the appellant for a road in the county of Butte. Mainly, two questions have been argued and submitted for consideration, namely: 1. Whether the proceeding has been properly brought in the name of the county; 2. Whether the appellant’s land has been appropriated by a proper judgment of condemnation. A county is a public corporation, endo...
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The action was brought to recover of defendants a warrant or audited account, issued by the auditor of the city and county of San Francisco, or its value. It appears that the account was presented to the board of supervisors and allowed by it. It was then presented to the auditor to be allowed by him. This he refused. It was finally allowed by the auditor under a peremptory writ of mandate. *156Th...
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In this cause we think that the writ must issue. The whole matter," as to the bill of exceptions, seems *157to have been one of accommodation between the attorneys of the respective parties, and, under the circumstances, we think all objections as to the presentment of the bill to the judge should be deemed waived. The writ to be issued, however, will direct the judge of the court below to settle ...
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The court below found that plaintiff waived his right to the notes of defendant, under the com*158position agreement, and had received in lieu thereof the note of J. C. and George Steele for four thousand dollars,-hearing interest at the rate of twelve per centum per annum (which note was paid), together with the right to retain a residuary-interest in certain' stocks; also, that the four thousand...
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On authority of Ward v. Superior Court of Marin County, 58 Cal. 519, let the writ issue....
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defendant asked the court to give the following, among other, instructions, which was refused: *160“If you believe from the evidence that at the time the defendant obtained the one hundred and twenty-five dollars from the prosecuting witness, Radcliff, he intended to use the same in his business, and he, Radcliff, so understood it, you should acquit the defendant. ’ ’ It was an important question ...
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The plaintiff could not have recovered for taxes without proper allegations relating thereto. Therefore the tender, being for the full amount his complaint entitled him to, was good. Judgment affirmed....
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The persons who signed the petition allege that they are the owners of certain lots fronting upon the work which in said petition and the diagram attached to it are sufficiently described. These lots constitute a majority of the frontage on said work. On the diagram, in some instances, the names of other persons than the petitioners are written, so as to indicate, as appellants claim, that persons...
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We do not perceive in this case any just cause of complaint on the part of the defendant Matthew Nunan. The evidence is undoubtedly sufficient to sustain the finding of the court below to the effect that the leasehold interest, with the appurtenances, purchased from the estate of Armstrong, and taken in the name of said Matthew Nunan, was in fact the property of the defendant Thomas Noonan. The ob...
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The complaint charges that the plaintiff delivered to the defendants certain shares of stock to be by them sold on commission for and on account of the plaintiff; that the defendants did sell the stock so delivered to them for the plaintiff, and that after deducting defendants ’ commission there remains due to the plaintiff of the proceeds of the sale four thousand two hundred and twenty-seven dol...
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The bond in suit was given for the release of property attached. It was not given under the code, for the redelivery of the property or the payment of the value thereof, but was an undertaking “that in case the plaintiff recover judgment in said action, defendant will on demand pay to plaintiff the amount of whatever judgment may be recovered in said action.” The complaint in this action alleged t...
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This action was brought to restrain defendants from using plaintiff’s trademark. The defendant demurred on the ground that the complaint did not state facts ■ sufficient to constitute a cause of action. The demurrer was sustained, and from the judgment rendered thereon plaintiff appealed. On the hearing in this court the demurring parties did- not appear, nor did they file points or authorities. W...
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The questions upon which this case turned were questions of fact. The testimony given by the plaintiff conflicted with that given by the defendant, and the jury saw fit to accept and base their verdict upon that of the plaintiff. Under the act of April 12, 1852, publication of the declaration to carry on business as sole trader was not essential: Reading v. Mullen, 31 Cal. 104. Plaintiff was not e...
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The trademarks alleged in the complaint to have been infringed are twenty in number, to wit: Mechanic’s Own, Tony, Chromo, Fruit, Oregon, Green Seal, Grape, Eclipse, Bon Ton, Slug, Beauty, Don Juan, Victoria, Columbus, Imperial, Give Us a Light, Private Cuvee, Little Devil, Red Seal, and Star and Garter, each of which it is alleged plaintiff had appropriated and continuously used on cigar boxes to...
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Petition for a writ of prohibition. Demurrer to the petition. The question is: Can a court fore*168close a mortgage, and, on such foreclosure, order a sale of personal property included in the mortgage, which property was in fact exempt by law from sale under execution? In such a case, we see no reason whatever for the issuance of a writ of prohibition. If any error has occurred, it can be reviewe...
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This is an appeal from a judgment, and the record before us consists of the judgment-roll alone. If the complaint states facts sufficient to constitute a cause of action, and the findings of the court support the judgment, we cannot disturb it. The court found upon all the issues in favor of the plaintiff, and we are satisfied that the findings . support the judgment. The complaint, in our opinion...
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If as alleged in the complaint and found by the court, the defendant Judson made and delivered to the plaintiff a deed by which he granted, bargained, sold and conveyed to her the premises in controversy, his subsequent conveyance of the same premises to defendant DeWitt, if he had notice of the prior conveyance, vested no title in him, and his subsequent conveyance to defendant Riley, if he had n...
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This is an application for an order staying the execution of a judgment for the sale of mortgaged premises. The application is made on behalf of a party claiming an interest in the premises subsequent and subject to the mortgage. We are of the opinion that the moving party (King) is entitled to the order. The undertaking in regard to a deficiency where the judgment is for the sale of mortgaged pre...
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The finding that the defendant, B. Joost, obtained from the plaintiff an assignment of the lease in controversy without consideration and through fraud and deceit is attacked on the ground that it is not justified by the evidence. We have carefully examined that which is relied on to sustain that finding, and have come to the conclusion that there is some evidence tending to support it. Such being...
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Action of ejectment against S. C. Hastings and other defendants, who were his tenants. If the statute of limitations could be relied on as a defense in this case, our opinion is that such defense is made out. It is contended that the statute of limitations did not run as to the lot sued for, for the reason that it was held by the city and county of San Francisco for the public use. There is no evi...
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This case is similar to Dyer v. Chase, 52 Cal. 440. A larger sum was demanded than was legally due under the contract, and, for the reasons stated in that case, the judgment is reversed and cause remanded....
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The judgment in this case is not amenable to the criticism of counsel for appellant, that it is erroneous because there is no direction in it that a judgment be docketed for deficiency. In this respect it (the judgment) accords with Leviston v. Swan, 33 Cal. 480, where the question is considered and correctly determined. The only point in which the judgment seems to be defective is in not expressl...
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Appeal from an order granting a new trial. All presumptions are in favor of the correctness of the order, and the appellants in error must show, clearly and affirmatively, by the record of the ease, that the order is erroneous: Clark v. Sawyer, 48 Cal. 133; Moore v. Massini, 43 Cal. 389; People v. Best, 39 Cal. 690. It is contended that the order is erroneous, because the court found: ‘ ‘ That the...
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This action, was brought to set aside a decree of the probate court, on the ground that it was procured by defendant herein without notice to the plaintiff, and without any appearance or knowledge on his part, and -that it was based on false testimony. The court below finds as above set forth, and in addition finds as follows: “That one F. J. Castlehun assumed to represent the plaintiff at said he...
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In this case a nonsuit was granted on the ground that the action was barred by the statute of limitations. The action was brought for embezzling and unlawfully alienating and converting certain personal property belonging to *182the estate of a deceased person. We have examined the pleadings in the cause and testimony in the bill of exceptions, and are unable to ascertain when the embezzling or un...
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The court below should have granted the motion to vacate the order and judgment dismissing the action. The circumstances attending the dismissal rendered it proper that an opportunity be afforded the plaintiff to show cause, if any existed, why the action should not be dismissed, Order reversed....
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Action to foreclose a street assessment in San Francisco, for the grading of Vallejo street, on “Telegraph Hill, ’ ’ from Montgomery to Kearny. Upon one of the issues Raised by the pleadings the court found that the grade of the street had never been officially established; and the only question discussed on the appeal is that this finding is not sustained by the evidence. It was proved by evidenc...
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The court instructed the jury: “In this case it is admitted by the defendants that they are common car*185riers, and that on the thirtieth day of November, 1880, the plaintiff, Ellen D. Wiggin, was then and there riding as a passenger in one of their stage-coaches, and that while she was so riding in said coach, said coach was upset and overturned, and that said Ellen D. Wiggin was injured thereby...
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The appeal is by the plaintiff from an order granting a new trial. There is no bill of exceptions. Section 1246 of the Penal Code provides that the clerk of the superior court shall transmit to the supreme court ‘1 a copy of the notice of appeal, and of the record, and of all bills of exceptions, instructions and indorsements thereon.” Upon such transcript the cause is heard here. The “record” ref...
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Plaintiff counts upon the instrument following: ‘1 $500. Sacramento, June 11, 1879. “For value received I promise to pay Charles P. Goff, or order, the sum of five hundred dollars, payable when I am released from liability upon an execution issued upon a judgment rendered upon the 6th day of June, 1878, in the Fourteenth Judicial District of the State of California, in and for the county of Nevada...
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Action to recover damages for the conversion of personal property. Upon motion of defendant’s attorney, a general demurrer to the complaint was overruled, with leave to answer. Yet it is now contended that the court erred in overruling the demurrer. But where a demurrer has been overruled at the request of the demurring party, he will not be heard, on an appeal from the judgment entered in the cas...
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Motion to dismiss appeal on the ground ■that the transcript was not filed within forty days after the appeal was perfected. The facts are as follows: Judgment was entered in the court below in favor of respondent March 17, 1882. Defendant moved to vacate the judgment and for a new trial on the minutes of the court and affidavits. Its notice of intention was filed March 27, 1882. The motion for a n...
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The motion to dismiss the appeal is denied. Though the action was brought by Williams, and he remained as plaintiff in the case as a whole, yet the portions of the decree appealed from relate, on their face, only to matters in controversy as between the defendants. In such matters Williams had no interest, would not be affected by any order relating thereto which might be made on the appeal, and w...
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It is clear that by the patent the legal title to the premises described in the complaint was vested in Maria A. Burton, Nellie Burton and Henry H. Burton. These persons subsequently mortgaged the property, the mortgage was foreclosed and by means of the foreclosure proceedings their title became vested in the" plaintiff. All this was prior to the commencement of the present action, which is eject...
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The question in this case is, whether a strip of land about sixty feet wide on the southerly side of ten acre lot number 164 of the lands of the Southern California Association, south of Riverside, is part of a public highway. . It was admitted at the trial that the land was within the boundaries of the Jurupa ranch, that a patent to the ranch had been issued by the United States government on May...
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The plaintiffs claim a lien on certain premises for the value of materials furnished for, and used in, the construction of a building erected on the premises. The complaint avers that the defendant Nelson, as contractor, was erecting the building for the defendant Thayer, and as such contractor purchased the materials and agreed to pay the plaintiffs therefor. The defendant Thayer is not connected...
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Conceding that the refusal of the court to grant respondent a final discharge from his debts constituted a final judgment, and that it does not appear that there were sufficient grounds for vacating it, the order vacating it was simply erroneous, and reviewable only on appeal. But it was not appealed from, and has not been vacated. And until vacated or reversed it is final. It cannot be reviewed h...
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While the portions of the charge referred to on the argument as contravening the law would be erroneous standing alone and not qualified by other portions of the charge, yet, as the jury were told by the court that they were “the sole judges of the facts and the value of the testimony,” we cannot hold that there was any error in the charge for which the judgment should be reversed. Taking the whol...
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The only points presented on behalf of the defendant are two objections to the charge of the court. It appears from the transcript that an oral charge was given, but it does not appear that any objection was made or exception taken thereto; neither is any charge contained in the transcript. Under such circumstances we cannot see what possible error could be suggested, or why the appeal was taken, ...
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There is a substantial conflict in the evidence regarding the understanding of the parties as to the transactions involved in this case. Therefore we will not disturb the findings of the court below. Judgment and order affirmed....
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The ruling of the court overruling the objections of defendant to the order fixing the day of execution is not appealable. Every question urged on the argument of this appeal was disposed of on the former appeal. Moreover, the verdict of the jury was sufficient and regular: People v. Welch, 49 Cal. 174. And further, the provision of the constitution of this state as to the prosecution of criminal ...
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The information in this case accused the defendants of the crime of murder. The jury returned a verdict of guilty of murder in the first degree. On this appeal, two points are presented, viz.: 1. That there was not sufficient evidence that the deceased died of the wounds inflicted, to justify the verdict. Evidence was given that the defendant stabbed the deceased; a physician was called, who testi...
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The exception to the rulings of the court, on- the defendant’s objections to the introduction of evidence of other independent transactions, between him and persons other than the prosecuting witness, similar in character to the one which constitutes the basis of the charge on which the defendant was tried and convicted, merit careful consideration. The defendant was charged with larceny. Whether ...
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This is an appeal from an order granting a new trial. Such a motion is addressed to the sound discretion of the court below, and this court will never interfere with the ruling of the trial court unless there is an abuse of discretion. In this case we see no such abuse. The motion is made and was heard on the minutes of the court. No statement setting forth the evidence as required by law (Code Ci...
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The charge to the jury was taken down by the reporter; “the report” of the charge forms part of the record and is deemed excepted to: Pen. Code, sec. 1176. The section reads: “When written charges have been presented, given or refused, or when the charges have been taken down by the reporter, the question presented in said charges need not be excepted to or embodied in a bill of exceptions, but th...
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We are of opinion that inasmuch as the execution of the bond sued on is not denied in the answer, the question as to delivery is not before us in this cause. We find no error in the record and the order is affirmed. Judgment affirmed....
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The defendants were entitled to an order changing the place of trial to the city and county of San Francisco, their place of residence: Cooke v. Pendergast, 9 Pac. C. L. J. 755. Order reversed and cause remanded, with instruction that an order be made, transferring the cause to the superior court of the city and county of Sari Francisco....
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The defendant was, on an information regularly filed, convicted in the superior court of the city and county of San Francisco of the crime of forgery. The verdict was rendered on the 25th of October, 1883, and at the same time the 27th of the same month, at 10 o’clock, A. M., ■ was set for pronouncing judgment. On that day the defendant, with his attorney, appeared in court; and upon his being ask...
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The statement on motion for a new trial is not authenticated in any way, and no point is made on the judgment-roll. There is, therefore, no point presented that we can consider. Judgment and order affirmed....
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This is an original proceeding in the supreme court, and the plaintiff has moved for judgment upon the complaint and answer. The petition avers that the petitioner is the “owner and holder” of certain railroad bonds “issued under the act of March 28, 1863, with the coupons attached, assigned to him by an indorsement printed and written on the back of said bonds, signed by the president and secreta...
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The question involved in this case is, whether, upon the sale of the property from Watkins to Bagnasco, there was an actual and continued change of pos*222session, within the meaning and intent of the statute. The evidence upon that subject was conflicting, but there was sufficient to sustain the finding. Judgment and order affirmed....
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The plaintiff sued the defendant for breach of a contract alleged to have been made between them in March, 1881, in respect to the manufacture Of lumber. The complaint charges that at the time stated the defendant was the owner of two steam sawmills, known as the Champion and Yellow Jacket mills, and of a large quantity of timber lands in the vicinity of the mills—all in Tehama county—together wit...
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The court below rightly sustained the demurrer to the cross-complaint filed by Catherine Perrier, and the cross-complainant having failed to amend her pleading within the time allowed by the court, but instead having in open court declared her intention to stand upon the pleading as originally filed, the court properly entered an order dismissing it: King v. Montgomery, 50 Cal. 116. Judgment affir...
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No points were filed by appellant prior to the day on which the cause was set for argument, as required by rule, nor has appellant filed a brief within the time allowed by the court. We feel justified in treating the appeal as abandoned, but have looked into the record and are not satisfied that error was committed by the court below. Judgment and order affirmed....
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The seventh and ninth instructions asked by defendant’s counsel were substantially given in the charge of the court; therefore the refusal of the request was not error. The court did not err in instructing the jury that it was not necessary to prove that the defendant occupied the building which was burned, or that he was ever at any time the tenant of M. Graff, although it was so alleged in the i...
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—The finding “that the plaintiff did not at any time release or cause to be released from attachment property of the defendant Robinson,” is not justified by the evidence which shows “that real property sufficient in value of the defendant Robinson had been duly attached to satisfy any judgment which might bo obtained in said action against said Robinson and Taylor ”; and that the sheriff was dire...
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The action in hand was brought against defendants, as sureties to an undertaking in the sum of two thousand five hundred dollars to recover damages which the corporation, plaintiff in the action, claims to have sustained by reason of, and during the continuance of, a restraining order, and the costs and expenses incurred in procuring its dissolution. The restraining order was made on March 15, 187...
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The case in hand arises ont of an action which was brought by the plaintiff, as widow and sole devisee of Octaviano Gutierrez, deceased, to obtain a decree annulling and setting aside certain documents affecting a tract of land in Santa Barbara county, known as the rancho La Laguna, upon the grounds that the same were obtained by fraud and without consideration. Upon a trial of the issues raised b...
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District attorneys are not expressly authorized by any law of this state to which our attention has been directed to commence and prosecute actions for the recovery of delinquent taxes. By the act of April 23, 1880 (Stats. 1880, p. 136), any county is authorized to sue in its own name for the recovery of delinquent taxes, and a form of complaint is prescribed. But no officer or board of officers i...
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Appellant contends that finding 1, that defendant “refused to allow plaintiffs to reject one hundred sheep from the band of sheep numbering about two thousand that he offered to deliver to plaintiffs,” does not respond to the issue, which was: Did defendant offer to deliver two thousand sheep, permitting plaintiffs to reject one hundred of them? But the court found that he offered to deliver a ban...
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No transcript on appeal having been filed in this cause, according to the rules and practice of the court, the motion made by respondents G-. L. Curtis and W. C. Curtis, to dismiss the appeal from the judgment, is sustained ; and as to them the appeal from the judgment is dismissed....
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The only point made by appellant is that the evidence does not justify the finding that the lands described in the complaint are not situated within the boundaries of the rancho Jesus Maria as patented by the United States. The testimony of the witnesses called by the defendant at least created a substantial conflict with reference to the location of the demanded premises, and we cannot say that t...
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action is to recover the possession of specific personal property. ' The property not having been delivered to plaintiff, the court properly found its value, and the judgment was in the alternative, for the property, or its value if the property could not be delivered: Code Civ. Proe., 667. If plaintiff recover in such an action, he is entitled primarily to the very property, and the value which h...
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The appeal in this case is from an order granting a new trial. The motion for a new trial was heard and determined upon an authenticated statement of the case. At the hearing appellant’s attorney objected to the motion, and moved to dismiss it, upon the ground that no notice of it has been given according to law. The objection was overruled. It appears that the case arose out of an action for the ...
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It is contended that the court below erred (1) in overruling the demurrer to the complaint in the proceeding; and (2) in excluding evidence, offered by the defendant, to *245prove the value of the land in controversy at the time of the trial. The object of the proceeding was condemnation of a strip of land for the right of way for a railroad. By a general demurrer the defendant objected that the c...
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Upon the authority of California Southern R. R. Co. v. Kimball, 61 Cal. 90, the judgment and order aré affirmed. We concur: Sharpstein, J.; Thornton, J.; Ross, J....
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Without passing on the question whether this court has the power to go behind the return herein, we say that it clearly appears to us, from the papers produced, on which the governor of this state acted, that his action was regular, and that it substantially complied with the act of Congress concerning fugitives from justice. The petitioner is therefore remanded....
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No points and authorities have been filed in this case, although the time extended for that purpose has long since elapsed. It is therefore ordered that the judgment be affirmed....
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The appellant (plaintiff in the court below) commenced an action of ejectment for recovery of possession of a tract of land. In addition to the statement of a cause of action in ejectment, the complaint contained averments to the effect that, at the time of the alleged entry and ouster by the defendants, there was upon the land a crop of grain which had been planted by the plaintiff, a portion of ...
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The evidence is insufficient to support the findings of the court below in the following particulars: In finding 8, that Caldwell was authorized to act for and on behalf of the defendants at the meeting of creditors, and by his acts to bind the defendants, and to enter into any agreement or contract with Love or his creditors; finding 10, so far as it is found that the defendants, or any person th...
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The court found, among other things, that at the date of said transfer said Marcuse was insolvent, and in contemplation of insolvency, and to prevent his property from being distributed ratably among his creditors he made said sale and transfer of said goods, wares, and merchandise ; that said sale and transfer were not made in the usual and ordinary course of business of said Marcuse, and for tha...
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The court erred in excluding evidence tending to prove that there was an agreement between Tyson and Stratton, by which the former agreed to let the latter have the rancho on which he lived in consideration of his giving Tyson a home and support during the residue of his life, and that the notes sued on in this action were given by Stratton to Tyson to secure the performance by Stratton of said ag...
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It has been repeatedly ruled here that the trial court must find upon all of the material issues raised by the pleadings. That rule was not observed in the present case, for which reason the judgment and order are reversed, and the cause remanded for a new trial. We dissent: Thornton, J.; Sharpstein, J....
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Finding 3 is not sustained by the evidence. The evidence of B. F. Burt, one of the plaintiffs, found on page 44 of the transcript, shows that when the account was opened with Collins the object of using the firm name of G. A. Collins & Co. was for the personal convenience of Collins in his subsequent settlement with the herders and Mrs. Bouton, and not with the expectation that the account was the...
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In an action to foreclose a mechanic’s lien, Erlanger and Jacob were made parties defendant— Erlanger as the contractor for whom the work was done and to whom the materials were furnished, and Jacob as the person claiming the property sought to be charged with the lien. To the original complaint Jacob demurred, but Erlanger made no appearance and his default was duly entered. Subsequently, the com...
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We have read the record attentively, and find no evidence to support the finding of the court below, to the effect that the plaintiff acquired the right to divert from the stream mentioned in the record one hundred inches of its water, measured under a four-inch pressure. The judgment securing him that right, as well as the order refusing the defendant a new trial, must therefore be reversed. Judg...
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Suit on an undertaking given under section 540, Code of Civil Procedure. The complaint avers the issuance of the attachment, and that under it the sheriff attached “certain property” (not stating what kind or of what value), and that the defendants, being desirous of having the property attached released therefrom, executed the undertaking. A copy of the undertaking is attached to the complaint. T...
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The complaint alleges that plaintiff is the owner of 11 all the flow ’ ’ of Lytle creek. The court below found that before the end of 1856 all the waters of Lytle creek had been appropriated by several persons, each acting separately, and claiming to appropriate a portion of the waters, and the waters thus appropriated by the various persons who appropriated the same, and those claiming to be thei...
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To an information filed August 27, 1883, charging the defendant with the murder of one Archibald McIntyre, in Santa Clara County, on the 11th of March, 1883, defendant, without a plea of not guilty, pleaded a former judgment of conviction of the same offense. Upon the plea so interposed a trial was had and a verdict rendered for the people. Defendant then moved in arrest of judgment, and also made...
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This was an action to determine the title of •the plaintiffs to certain parcels of land described in the complaint and to enjoin the defendant from trespassing upon the same, and from asserting any title thereto. The court found that the plaintiffs were owners of only a portion of the land, and that they were not entitled to any relief. Upon this finding a temporary injunction, which had been issu...
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This action was brought under the act of the legislature, approved March 7, 1878, and entitled, “An act concerning trespassing of animals upon private lands in certain counties in the state of California”: Stats. 1877-78, p. 176. The act is made applicable to the township in which is *269situated the land of the plaintiff, and its first and second section are as follows: • “Section 1. It is unlawf...
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The appeal in this ease was taken from the judgment alone. On the appeal the plaintiff seeks to review an order of the court below denying his motion that the cause be transferred to the federal court. Under section 670, Code of Civil Procedure, the petition and bond for transfer, and the order thereon, do not constitute a part of the judgment-roll, and there being no bill of exceptions, and no ex...
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The defendant Stillinger does not appear to have had any claim to the demanded premises beyond what his naked possession gave him; and at the time of the commencement of this action the plaintiff had the legal title, and was entitled to the possession of said premises. This is sufficiently apparent, although somewhat obscured by the finding of a great number of irrelevant facts. Judgment affirmed....
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This is an appeal by the people from a judgment or order in favor of defendant on a demurrer to the indictment: Pen. Code, 1238. The notice of appeal was served and filed on the tenth day of November, 1883. If the judgment or order was appealable the people had perfected an appeal from the same on the twenty-sixth day of October, 1883. The appeal must therefore be dismissed....
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The court below found that the land in controversy constitutes a portion of a public street, which had been wrongfully and unlawfully obstructed by the defendants, and that the defendants had and have no right or title thereto. In arriving at the conclusion that the land was a portion of a street, the court found that the same had been dedicated as a public street by the owners, and had been, with...
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To this suit Gilbert Curtis and the JEtna Life Insurance Company were originally made defendants. The controversy grows out of a policy of insurance issued by the company upon the life of one A. W. Tucker. The complaint charges that the policy was issued upon the life of Tucker and delivered to one Esther Cordelia Curtis, who, it is alleged, paid the premiums thereon. It is not alleged to whom the...
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The complaint in this case was filed to obtain a decree reforming a deed executed by defendant to plaintiffs’ testator, so as to include a tract of land not included therein, and that said tract be conveyed to them in their representative capacity. The plaintiffs alleged that by the agreement of their testator and the defendant the tract was agreed to be embraced in the deed, and was omitted there...
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action is similar to that of Stockton Bldg. & L. Assn. v. Chalmers, 65 Cal. 93, 3 Pac. 101, except that this is to foreclose the junior mortgage. The court found that the plaintiff had no knowledge of the alleged rights of the interveners until the complaint in intervention was filed; and there is evidence sufficient to justify the finding. Judgment and order affirmed....
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The statute under which this action was brought —act of March 20, 1878 (Stats. 1877-78, p. 360)—makes the defendant liable for the acts charged in the complaint and proved and found against him in the court below; that is to say, the willful entry by the defendant, with cattle and horses, upon land belonging to and in the possession of the plaintiff and depasturing the same to plaintiff’s damage. ...
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Lukes sued J. Bernheim and others in the superior court for the county of Santa Cruz, and on his demand a jury was called and impaneled. The trial of the cause proceeded for five days before the court and jury, and the jury, failing to render a verdict, was on the 19th of *284October, 1883, discharged. The court entered an order that the plaintiff pay the jury fees, amounting to one hundred and tw...
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The original transcript did not show that the notice of appeal was served on the plaintiff’s attorney of record, and a motion to dismiss on that ground was made by said attorney. When the motion was called up, the defendant’s attorney suggested diminution of record, and asked and obtained leave to file a certificate of the clerk of the court below showing that proof of service of said notice on pl...
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The information accused the defendant and one Donovan of the crime of grand larceny. That the defendant Grider took the money from the pocket of Carmody when the latter was intoxicated is admitted. The proposition of Grider was that certain persons engaged in a “game” were endeavoring to obtain the money by means of the game, and that he (Grider) took it as a friend of Carmody to protect it for hi...
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The defendant, sheriff, in his answer justified the taking of the property in controversy by virtue of *287an attachment issued against the property of plaintiff’s vendor. There is no finding on the issue raised by the answer as to the averments in justification; the findings are silent upon this subject. Judgment and order reversed....
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The petitioner, at a general election held in the city and county of San Francisco, November 7, 1882, received votes for supervisor, first board, and he claims that under the clause of section 7, article 11, of the constitution of 1879, which reads as follows: “In consolidated city and county governments of more than one hundred thousand population, there shall be two boards of supervisors or hous...
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We think the evidence is sufficient to justify the finding that the transaction between Alvarado and plaintiff was fraudulent and void as to the creditors of the former. Judgment and order affirmed....
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The only question presented by the record on this appeal is whether the findings support the judgment. We think they do Judgment affirmed. We dissent: McKinstry, J.; Ross, J....
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This court has no jurisdiction of this appeal. Appeal dismissed....
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The findings are supported by the evidence; no error appears in the record. It appearing to us that the appeal was taken for delay, the judgment and order are affirmed, with seventy-five dollars damages....
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In this cause defendant moved for a new trial on the ground, inter alia, of newly discovered evidence. We have examined the affidavits as to such newly discovered *295evidence, and think that they bring the application within the rules of law and that defendant should have a new trial. The judgment and order are reversed and the cause remanded that it may be tried anew....
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This is an appeal taken by the people from an order of the superior court granting the defendant a new trial, after he had been found guilty of the crime of embezzlement. The learned judge who tried the case and heard all the evidence was not satisfied with the verdict of the jury, and therefore set the same aside and granted a new trial. There was a conflict in the evidence, and we are not dispos...
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The assignments of error which have been argued upon this appeal are: (1) That the complaint does not contain facts sufficient to constitute a cause of action. (2) That the court erred in admitting in evidence, against defendants’ objections, the record of a former judgment. 1. The complaint is not artistically drawn; yet, in its verbiage, the following facts, although defectively and illogically ...
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This is a proceeding, under section 287 and following sections of the Code of Civil Procedure, to remove or suspend an attorney and counselor of this court. The accusation was made in due form, and, being wholly denied, a reference was made under section 298 to William Craig, Esq. Mr. Craig has. filed his report, accompanied by the evidence taken by him in support of the accusation, as well as tha...
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In this action (ejectment) the complaint is in the usual form, and the answer denies that the plaintiff was seised in fee or in any other estate or entitled to the possession of the premises; or that the defendants wrongfully withhold the possession from him, or that he was damaged in any sum whatever thereby. On the trial the plaintiff introduced in evidence the judgment-roll, showing a judgment ...
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This is an attempted appeal from an order made and entered May 29, 1883, restoring respondents to possession of a tract of land from which they had been dispossessed by the sheriff by the execution of a writ of possession which had been issued upon a judgment in favor of the plaintiff (who is the appellant) against one Thomas J. Currey, for the recovery of said land and costs. In the transcript wh...
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On August 28, 1882, an information was filed in the superior court of Fresno county against Patrick Big-gins, charging him with having committed the crime of murder. Upon demurrer it was held to be defective, and, by direction of the court, a new information was filed, to which a demurrer was interposed, which was overruled, and the defendant then entered a plea of not guilty; hut upon the day fix...
Views: 2
The substantial point in this controversy is thus stated by appellant in his points: “Did the defendants agree with plaintiff to make title to the land in him, and have they performed their agreement 1 And if not, should they be compelled to do sol” The court below, in its opinion, used the following language: “To hold in the case at bar that the plaintiff may purchase from the parties to this con...
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There is no such office as “police justice of the city of San Jose”; therefore, the defendant could not have usurped, intruded into, or unlawfully held or exercised that office. Conceding the act to be unconstitutional which in terms confers jurisdiction on justices of the peace in cities of more than ten thousand inhabitants which other justices of the peace do not possess, the exercise of such a...
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Appellant urges that the court found, against the evidence, that the executor was to be charged with seventeen and three-quarters acres of land, “a little more or less”; that the court finds, and “there is no dispute,” that Pagels bought the two-acre piece; that one acre was washed away without the fault of the executor; and that “there was no dispute” but the railroad purchased four and one-half ...
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In this case the defendant was convicted of grand larceny. He moved for a new trial. The motion was denied, and from the judgment of conviction and the order denying a new trial he has appealed. The larceny is charged to have been committed on Sunday, April 1, 1883. It consisted of the stealing of a calf from the custody of its alleged owner. The principal evidence connecting the defendant with th...
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The superior court having jurisdiction of the estate of the insolvent, Baeher, and of all persons interested in it, it is clear that the order of that court directing the assignee to pay out of the estate certain sums of money, if erroneous, was not in excess of its jurisdiction. Writ denied and proceedings dismissed....
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The findings in this ease are indefinite, and are inconsistent with each other and with the averments of the complaint. Judgment reversed and cause remanded, with leave to the plaintiff to amend her complaint if she shall be so advised....
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This is an action for an alleged forcible entry upon lands alleged to have then been in the actual occupancy of the plaintiff. We think the evidence fails to show that there was any forcible entry on the part of the defendant or that the land in question was in the possession of the plaintiff. But that, on the contrary, it shows that the land was in the possession of Francisco Mora, bishop of Mont...
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1. There was a substantial conflict in the evidence with reference to the truth or falsehood of the matter set up in defendant’s answer. 2. The receipt was admissible, as there was evidence tending to prove that it was executed and delivered contemporaneously with the note; that both papers were parts-of one contract or transaction. 3. The oral testimony was admissible to apply the receipt to the ...
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Appeals from an order granting a new trial. The decision and judgment, which the court set aside, were founded upon substantially conflicting evidence, bearing upon the main questions, as issue between the parties, as to the existence and extent of the subordinate claims and liens against the building- in controversy; and as the court set the judgment aside and granted a new trial upon the ground ...
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Action by a physician to recover damages for breach of contract made with him by the supervisors of Santa Cruz county. The court rendered the following decision: “(1) That on the sixth day of October, 1879, the defendant employed plaintiff as county physician for the period of one year thereafter from that date, and to pay him therefor monthly the sum of thirty-seven dollars. “ (2) That, at the ti...
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To a verified complaint, in the ordinary form, for the foreclosure of two certain mortgages, the defendant, Juana B. Edsall, interposed an answer in which she admitted the execution of the notes and mortgages set forth in the complaint but denied that0at the time of such execution she was indebted to the plaintiff in any sum of money, and alleged that she executed the notes and mortgages without r...
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Unless the plaintiff’s action was barred by the former judgment, the defendant was not materially prejudiced by any of the alleged errors, and the judgment should not be reversed for any error which does not affect the substantial rights, of the parties. In our opinion, the former judgment, which it is claimed constitutes a bar to this action, cannot be held to have that effect. We think each clai...
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The fact of the court having made the order granting a new trial dependent on the plaintiffs’ failing to do certain things, is, in our judgment, an immaterial circumstance. It is not claimed that the plaintiffs did that which, according to the terms of the order, would have defeated it. If we can discover any ground on which the court would be justified in granting a new trial, the order must be a...
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The court entered judgment May 29, 1883. On the 13th of June, 1883, the court made an order amending the judgment as to costs, directing the same to be paid in due course of administration: Code Civ. Proc., sec. 1332. It does not appear that any error was committed. For aught that appears in the transcript, due notice of motion to amend was given and hearing had thereon. Order affirmed....
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1. A general demurrer that the complaint, as amended, does not state facts to constitute a cause of action was overruled by the court below, and, after trial, judgment was ordered and entered for defendant. Respondent now contends that the judgment should be affirmed, because the demurrer ought to have been sustained, for certain reasons: First. As against a general demurrer, at least, the avermen...
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1. Appellant contends the verdict was not sustained by the evidence, because the evidence showed, while the complaint does not allege, that it was part of the agreement between the parties that the axle of the ditching machine.should be shortened, if necessary, so that the wheels should run between the rows of vines. But it was not necessary to allege, as part of the contract, that the machine sho...
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This is an appeal from an order that an execution issue in the above-entitled action. There is no bill of exceptions, nor certificate of the judge of the court in which the order was made that the papers printed in the transcript were used on the hearing of the motion which resulted in the making of the order appealed from. Under such circumstances we cannot review that order. Order affirmed....
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In the absence of a bill of exceptions we cannot review the order denying the defendant’s motion for a new trial, and the appellant does not insist that the complaint does not state facts sufficient to constitute a cause of action or that the findings do not support the judgment. Judgment and order affirmed....
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The decree seems to follow the provisions of the deed of trust in authorizing a sale of the premises conveyed to the plaintiff when he shall obtain possession thereof by virtue of a judgment in an action then pending, in which the right of possession was involved, except in the *344particular hereinafter noted. As to the compensation to which the court found plaintiff entitled, and decreed that he...
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This action was properly brought under section 1161 of the Code of Civil Procedure, but the judgment of the court below must be reversed for errors in the proceedings. *345In the first place, the findings do not support the judgment. No such lease as that set forth in the complaint is found by the court; but, on the contrary, a contract for a lease is found essentially different from the terms of ...
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The demurrer to the petition for revocation of the probate of the will was properly overruled. The petitioner alleges that one of the grounds on which she asks for such revocation is “that at the time of signing said supposed will by him the said James Crozier was not of sound and disposing mind, but, on the contrary, said deceased was at said time of unsound mind.” If this is not an averment that...
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Application for writ of review. The superior court had jurisdiction over the subject matter and the party. Application denied....
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Defendant in his answer, having sought affirmative relief, the attempted dismissal of the action by the plaintiffs, the day before the case was to be called for trial, was a nullity: Code Civ. Proc., sec. 581. The case having been regularly set for trial, of which plaintiffs had notice, it was their duty to have attended at the time appointed. Order affirmed....
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There was no abuse of discretion on the part of the court below in granting defendant’s motion to vacate the judgment and award the defendant a trial. Order affirmed....
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Action for damages for a personal injury sustained by the plaintiff at the hands of the defendant. On the trial the plaintiff was asked: “How much, if anything, have you laid out or expended for the services of physicians, and for nursing, by reason of the injury to your jaw here complained of?” The court sustained an objection to this question, and excluded all testimony in relation to that matte...
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This was an action to recover damages for the taking and detention of some personal property, which consisted of an engine and boiler and the machinery of a sawmill. The plaintiff’s claim of title to the property was founded upon a bill of sale made to them by one J. J. Blackburn on the 30th of January, 1878. But at that time Blackburn had no possession of the property to deliver and no title to i...
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On the authority of Ex parte Walters, 3 Pac. 894, judgment reversed and cause remanded....
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1. There is no error in the judgment-roll in this ease of which we can take cognizance. 2. There is no reviewable error in the order denying the motion made in behalf of the defendant to vacate the judgment on the ground of surprise. The motion was not supported by the affidavit of the defendant; it was made solely upon the judgment-roll and the affidavit of defendant’s attorney, in which he depos...
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Appellants’ counsel, in his “points and authorities,” insists that the order denying the motion for a new trial should be reversed on the ground that the decision of the court below was not justified by the evidence. We have examined the evidence and found a material conflict therein, and for that reason cannot disturb the order appealed from. Judgment and order affirmed....
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It is objected that the appeal in this ease was not taken in due time. The case was tried and judgment ordered for defendant on the 30th of September, 1881, but no judgment was entered until the 30th of July, 1883. Then, on motion of defendant’s attorney, the court caused judgment to be entered in favor of the defendant nunc pro tunc as of the 30th of September, 1881. The appeal was taken from thi...
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The application for the writ is denied. The appeal was taken from a judgment entered by consent in the justice’s court, and the superior court was authorized to *356dismiss the appeal of its own motion, on an inspection of the record. Such a judgment was not appealable. If the judgment was entered in the justice’s court contrary to the stipulation, the remedy was by motion in that court....
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The defendant was accused, by information, of taking from her mother a female under the age of eighteen years, for the purpose of prostitution, under section 267, Penal Code. There was no evidence that the infant was taken from the charge or custody of her mother. Judgment and order reversed and cause remanded for a new trial....
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to recover damages for an alleged malicious prosecution. The jury gave the plaintiff a verdict for twelve thousand dollars. The court below granted a new trial on the ground of excessive damages, and because the verdict was not sustained by the evidence and was contrary to the law and evidence. The evidence was conflicting as to the want of probable cause. In case of conflict, it has been held by ...
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This is an application for a writ of review. The action, commenced in the justice’s court and appealed to the superior court, was upon a contract, and those courts had jurisdiction. Application denied and proceeding dismissed....
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The plaintiff sued to recover of defendant damages for the'destruction by fire of certain property alleged *359to have been communicated by sparks emitted from one of defendant’s locomotives. As to whether the engine was in proper order and was properly managed by the employees of defendant at the time in question, the testimony on behalf of the respective parties differed. Upon the conclusion of ...
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The plaintiffs’ complaint can only be construed as one to obtain an injunction restraining the defendant from the commission of the acts complained of. Upon the cause of action, and the only cause of action set forth in the complaint, the court below found against the plaintiffs. The plaintiffs were not therefore entitled to recover of the defendant any costs or disbursements incurred in the actio...
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Two material issues were submitted to a jury in this case, namely: “ (1) Is there, through the land of plaintiff, a natural watercourse which leaves the land of plaintiff on the south, and which passes through into the land of defendant? (2) Has defendant caused said natural watercourse to be obstructed by an embankment along the south line of plaintiff’s land?” On both issues the jury failed to a...
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The executor or administrator of an estate of a deceased person has no authority to bid in for the estate, at execution sale, real or personal property levied upon to satisfy an execution issued upon a judgment in favor of the estate. The execution sale of the real estate of the defendant to the plaintiff, as executrix of the estate of Thomas Sedgwick, was therefore void. And as it did not, in law...
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We cannot say the court below abused its discretion in refusing a continuance of the trial of the cause. Nor, under the circumstances appearing, can we hold as error the refusal of the court to permit the dismissal of the complaint in intervention. There was no judgment against the intervener for costs, as seems to be supposed by counsel. Judgment and orders affirmed....
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1. It is contended by appellant (plaintiff) that the court below erred in admitting in evidence the entry of a judgment in the judgment book of the district court. It is urged that the only competent evidence of the judgment Avas the judgment-roll. But, subsequently to the introduction of the book by defendant, the roll was introduced by plaintiff. It is said the plaintiff introduced the roll for ...
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Upon the authority of Packard v. Moss, 68 Cal. 189, 8 Pac. 818, the judgment and order are affirmed....
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the fifteenth day of December, 1882, the plaintiff delivered to the defendant, at its Stockton office, this message: ‘ ‘ George W. McNear, San Francisco: Buy bail barley falún; report by mail. George Hart.” The message was promptly transmitted and delivered as written, except that the word “bail” was changed to the word “bain.” By the private cipher code of McNear, used by the plaintiff in the mes...
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We think the evidence sufficient to justify the verdict. The charge, as a whole, seems to have been as favorable to the defendant as the circumstances required. The defendant’s case could not have been prejudiced by the questions put to him, when on the witness-stand, by the district attorney. The answers were all favorable to the defendant, and no attempt was made to contradict him. Judgment and ...
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The eleventh instruction which the defendant requested to be given, and the court refused to give, to the jury, suggested a theory of the case which was not suggested by any of the instructions given, and we think the court erred in refusing to give it. The evidence, in our opinion, entitled the defendant to have that instruction given. Judgment and order reversed, and cause remanded for a new tri...
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The defendant having been convicted of murder in the first degree, and sentenced to imprisonment for life, appeals from the judgment, and an order denying a motion for a new trial. 1. In impaneling the trial jury the court allowed certain challenges, taken by the district attorney, to two of the panel of jurors, for implied bias, upon the ground that each of them entertained such conscientious scr...
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Petitioner prays to be discharged on habeas corpus. It appears from the return of the officer having the defendant in custody that he is held under an information charging him with forgery. I do not deem it a proper exercise of authority to discharge the defendant, under the circumstances of the case. Writ dismissed and prisoner remanded....
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No index is prefixed to the transcript, which contains over eight thousand folios. Under the rule the court is authorized to dismiss the appeal, but the submission of the cause is set aside, with leave to appellants to prepare and print proper index, to be prefixed to each copy of transcript within ten days....
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Appeal from a judgment in proceedings on a writ of review, affirming an order made by the late municipal court of appeals of the city and county of San Francisco, dismissing an appeal, and from an order setting aside an order granting a rehearing. The order dismissing the appeal was made by the municipal court of appeals in a ease pending before it, on an appeal taken from the judgment of a justic...
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Appeal from an order denying a motion for a new trial, and from a judgment of conviction of murder in the second degree. The motion was made upon statutory grounds, but the case itself has been argued and submitted mainly upon one of them, namely, misconduct of the jury by which a fair and due consideration of the case was prevented. The alleged misconduct consisted of certain acts committed durin...
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The plaintiffs, George and William B. Chaffey and the Pomona Land & Water Company, brought an action against the defendant for the diversion of a large portion of the water of San Antonio creek, which flows over the plaintiffs’ lands. The defendant denied the material allegations of the complaint, and alleged that he was the owner *398of the exclusive right to use and control forty inches, measure...
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The motion for a new trial was made on a statement of the ease, and we cannot consider any alleged error of law unless it is specified in the statement; and the ruling of the court on the defendants’ offer “to show that the money in the hands of the administrator had come to his *400hands during the existence of the first bond” is not specified as one of the particular errors upon which the defend...
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The order appealed from in this ease is not appealable. The appellant contends that it is a special order made after final judgment. The judgment formerly •rendered was reversed, and there was no judgment in the *401cause when the order appealed from was made. The reversal of the judgment and order denying the motion for a new trial when the cause was here before (see 54 Cal.- 329) placed the part...
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-The order appealed from in this case is not appealable. The appellant contends that it is a special order made after final judgment. The judgment formerly rendered was reversed, and there was no judgment in the cause, when the order appealed from was made. The reversal of the judgment and order denying (lie motion for a new trial when the cause was here before (see 54 Cal. 829), placed the partie...
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The plaintiff commenced an action of ejectment for certain lands described in the complaint, situate in the county of San Diego. Defendants had judgment, and the court granted plaintiff’s motion for a new trial. This appeal is by defendants from the order of the court below granting the motion for a new trial. The evidence in the case clearly established plaintiff’s title—possessory title, at leas...
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The respondent moves to dismiss the appeal taken from the order denying a motion for a new trial in this case, principally upon the ground that the transcript shows on its face that the proposed statement on the motion was not served upon one of the “adverse parties,” as required by subdivision 3, section 659, Code of Civil Procedure. *403It is conceded that the proposed statement was served on al...
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Each of the parties to the agreement we are called upon to construe in this case was, at the time of its execution, in possession of a distinct portion of the Bo jorques rancho, for the partition of which rancho an action of partition, entitled Gates v. Salmon et al., was then pending in one of the district courts of the state. Some of the parties to the agreement were holding under deeds from ten...
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Plaintiff moved for a new trial on newly discovered evidence. Affidavits and counter-affidavits were filed. We are not informed, except by the certificate of the clerk, that the affidavits were used on the motion; but, no point being made thereon, we pass to the point presented. The evidence set forth in the affidavits of plaintiff was clearly cumulative. It was in effect denied by the counter-aff...
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The objection that the affidavit of service of summons is fatally defective because it does not state that the appellant, on whom the summons alone was served, and the defendant, on whom a copy of the complaint was served with the summons, were residents of the same county, is overruled, on the authority of Calderwood v. Brooks, 28 Cal. 153. The allegation that appellant covenanted and agreed to p...
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This appeal is by Laura A. Mowrie from a judgment rendered in favor of the plaintiff against the following named defendants, viz.: The Potrero Company, L. A. *409Lowrie, John Edwards, Ah Wing, Ah Wun, and Henry F. Williams. The appellant was not a party nor privy to, nor a person aggrieved by, the judgment; therefore her appeal must be dismissed. It is so ordered....
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The court found that before the board of supervisors gave notice of their intention to order that Broadway, from the west line of Buchanan street to the west line of Webster street, be graded, “two blocks upon each side of the above-mentioned portion of said Broadway street” had been graded. That being so, the board of supervisors were authorized, upon the recommendation of the superintendent of s...
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The court found that the demanded premises were never at any time the separate property of the defendant Margaret Gough, and that the defendants did not nor did either of them reside on said premises at the time of filing .their declaration of homestead. A homestead consists of the dwelling-house in which the claimant resides, and the land on which the same is situated, selected as provided in tit...
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The plaintiff brought this suit to foreclose a mortgage on lands situate in Stanislaus county, and judgment was rendered for the defendant on the ground that the amount due on the mortgage debt was duly tendered before suit brought. The principal object in the case seemed to be the institution of a suit before the defendant could *412make a legal tender of the amount due, and there seems to have b...
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Without expressing any opinion upon the question whether this court could remove or suspend an attorney for causes other than those specified in section 287, Code of Civil Procedure, we have concluded in this case not to investigate the charges which, if proven, would not clearly constitute a cause for suspension or removal under the provisions of the code. Therefore, the objections to the charges...
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The first defense set up in the answer of the defendant is substantially that of nul tiel record. Such a defense to an action on a judgment is a good one, and the court, therefore, erred in sustaining a demurrer to it. Judgment reversed, and cause remanded for a new trial....
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We have examined the record in this case and find it without error. The use of the word “defendant” instead of “defendants,” in the conclusions of law, is so clearly a mere clerical misprision that we do not think it entitled to any regard. Judgment affirmed....
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The plaintiffs claim title to the lot of land in controversy as the heirs at law of Henry Ganahl, who died intestate, in the state of Georgia, on the twelfth day of May, 1855. That whatever rights, if any, the plaintiffs Maria Ann and Ann Elizabeth Ganahl acquired in the premises as such *416heirs at law became barred by the provisions of the statute of limitations prior to the commencement of thi...
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These appeals were submitted together, and will be so considered. Both are taken from a decree of foreclosure and sale, and from an order refusing a new trial of the action—one being brought by the defendant and the other by the intervener. According to the averments of the complaint in intervention, the liens claimed by the intervener grew out of contract. The agreements out of which they are all...
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The appeal is by plaintiff from an order granting a new trial. The promissory note sued on herein was given in part for five hundred dollars, which plaintiff informed defendant had been allowed him by the probate court for his services as guardian of defendant. The plaintiff had been informed by his attorney that five hundred dollars had been so allowed for his services, and believed his informant...
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The plaintiff alleges in his complaint that on the twenty-third day of April, 1881, Mary B. Taggart duly made, executed and delivered to him two several deeds of conveyance, by one of which she conveyed to him certain described parcels of land, and by the other certain other parcels. According to the complaint, the number of parcels specified and described in one is much greater than the number sp...
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We think the record of the conviction of Sprague of the murder of W. T. More was competent for the purpose of showing that Sprague was implicated in said murder, and that the court erred in excluding it for that purpose. The evidence introduced, together with that offered and erroneously excluded, was sufficient to entitle the plaintiff to have the issues submitted to the jury, and the court erred...
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Partition. Plaintiffs allege title in themselves to the undivided one-half of the premises, and in defendants to the other undivided one-half. Defendants deny plaintiffs’ title, allege title in themselves to the whole, and plead the statute of limitations. The plaintiffs, after proving that Box and Summers were the owners of the premises in 1853, and *424that Summers executed a deed to Coon, plain...
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Most, if not all, of the questions involved in this appeal are substantially determined by the cases entitled Chapman v. Polack, 58 Cal. 553, United States v. Chapman, 5 Saw. 528, Fed. Cas. No. 14,785, and Polack v. Gurnee, No. 8229, 66 Cal. 266, 5 Pac. 229. We do not find any denial of the averment of the cross-complaint to the effect that the Geyser springs and hotel improvements are located on ...
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The district attorney filed an information in the superior court of Los Angeles county, charging the defendant with the crime of murder, alleged to have been committed in the city of Los Angeles on the morning of July 21, 1884. The facts in the case are clearly established by the evidence, and are briefly as follows: James McIntyre, the party killed, and a friend named Hickey were passing along Ne...
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I concur in the judgment of reversal, and, in the main, in the opinion of Mr. Justice Sharpstein. I do not agree, however, that the testimony of the witness Marshall was admissible, nor do I agree with what is said in the opinion with respect to the witness Babb....
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The court below found “all the allegations of the complaint herein are true, except that the capacity of the ditch of plaintiff, therein described, is four hundred and thirty-two cubic feet of water per second, and no more.” The first count of the complaint fails to aver intelligibly what is the capacity of plaintiff’s ditch. The allegation in the first count is: “The said ditch, during all the ti...
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The cross-complaint having been stricken from the answer of the defendant, the latter pleading was left with matters of defense only. The plaintiffs were therefore at liberty to dismiss the action at any time before trial, upon payment of costs: Code Civ. Proc., sec. 581. This they did, the dismissal having been entered by the clerk. The purported trial of the 5th of November, 1883, was therefore ...
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The cross-complaint having been stricken from the answer of the defendant, the latter pleading was left with matters of defense only. The plaintiffs were, therefore, at liberty to dismiss the action at any time before trial, upon payment of costs. (Code of Civil Procedure, § 581.) This they did—the dismissal having been entered by the clerk. The purported trial of the 5th of November, 1883, was th...
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Settlement of an administrator’s account. Items in the account aggregating more jhan fifteen hundred dollars were allowed for which no vouchers were produced, and as to which there was no testimony regarding when, where, or to whom the payments were made. This was error: Code Civ. Proc., sec. 1632. Orders reversed and cause remanded for further proceedings....
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This is an action to set aside certain deeds on the ground that they were never delivered. On this issue the evidence is conflicting, and the court below having held that the deeds were delivered, we cannot interfere with the judgment, and order denying plaintiff’s motion for a new trial. Judgment and order affirmed....
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The record shows that the issues of fact raised by the pleadings in the action were submitted to the jury upon evidence given by the respective parties. Of these issues, one involved the fact of a former recovery, and another of coverture of the plaintiff at the commencement of the action. The jury returned a verdict for defendants; and as the verdict may have been rendered upon one or another, or...
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The court is of opinion that the appeals in these cases must be dismissed. The undertakings on appeal were filed more than a month before the notices of appeal were filed. This, in our view, is not the undertaking required by law. It is not the case of insufficiency in the undertaking, but it is no undertaking at all. The motions to dismiss must be granted; and it is so ordered....
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The relator bases his claim on a resolution of the board of supervisors, passed in the month of December, 1884. It appears by the answer of respondent that said resolution was afterward, and before the filing of said answer, repealed by said board. . It therefore follows that the alternative writ heretofore issued must be discharged, and the proceeding be dismissed; and it is so ordered....
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The question involved in this action is the precise question that was involved in the action brought in the year 1863, in the late fourth district court, by the same plaintiff against the same defendant; that is to say, the alleged dedication by the lawful owner and proprietor thereof, prior tó the year 1863, to public use as a public square by the name of “Lafayette Park,” of the lots of land in ...
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The court below found: “The widow is not entitled, under the constitution or by-laws of said society (defendant), to recover benefits for sickness due to a member at the time of his death; nor is such widow entitled to recover such benefits under any rule or custom prevailing in said society.” It was for the plaintiff to establish the existence of some provision of the constitution, or of some by-...
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In this case the defendants, D. B. Blair and Maef arlane, Blair & Co., by stipulation in the lower court, waived their appeal to this court; and thereafter and thereupon satisfaction of the judgments against them was entered. A motion is made to dismiss the appeal of the defendants above named, which is granted. Appeal dismissed....
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1. There was sufficient evidence to justify the findings that the only persons interested in the contract between McCann and defendant Greene were the parties to that contract. 2. It was stipulated that certain averments should be considered to be incorporated in the complaint, and denials of them considered to be inserted in the answer. The averments are: “The defendant Greene paid to defendant M...
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The plaintiff is the assignee of George W. Chester, of whatever right of action or claim he had against the defendants by reason of the transfer by defendants to one Xarissa Hill of the note and mortgage next hereinafter alluded to. The findings show that on or about the sixth day of December, 1875, one H. W. Woddward executed to George W. Chester, or order, his promissory note for three thousand ...
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In this case the petitioner can bring his action for the writ of mandate in the superior court for the county above named. The reasons assigned for not bringing it in that court are insufficient, as there has been a change of the judge of that court since the judgment was rendered in the contésted election case of Reynolds v. Snow. In accordance with the rule of this court the petitioner must seek...
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This court is of opinion that the court below had full power, on the evidence before it, to set aside the approval of the undertaking in this case. Nor did the former approval of such undertaking for a stay, and the appeal to this court, and the filing of the transcript in this court, take away this power. The stay is only of the proceedings on the judgment or order appealed from, and the matters ...
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As the evidence is not before us, it is our duty to affirm the judgment and order denying a new trial, unless some one of the instructions was erroneous in any conceivable state of the evidence. Portions of the charge may be subject to criticism, and are not to be commended as models of clear and accurate statements of propositions.of law; but other portions explain these, so that the charge, as a...
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The funds and securities deposited by the regents of the university in the state treasury for safekeeping, may be drawn therefrom in the manner provided by the statute. The statutes which authorize the deposit provide how it shall be withdrawn. It is clear that the first clause of section 22, article 4, of the constitution was not intended to apply to these funds and securities. Application denied...
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Among other matters the defendant sets up in his answer that the plaintiff took his sheep under a contract of agistment, and that, by reason of negligence on plaintiff’s part, a large number of the sheep perished, to defendant’s damage, etc. *450The fifth instruction given by the court below to the jury as follows: “If you should find from the evidence that plaintiff took and kept the defendant’s ...
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For a failure on the part of the court be-the judgment must be reversed, and the cause remanded for a new trial. So ordered....
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By the verdict rendered in this ease the jury in effect found that the defendant entered upon the prior possession of the plaintiff of the disputed premises and dispossessed her. An examination of the evidence shows that it is substantially conflicting upon the question as to whether the land was in the actual possession of plaintiff or Conroy. The verdict in favor of the plaintiff must therefore ...
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Two of the grounds of the motion for a new trial in this ease are that the evidence is insufficient to sustain the verdict, and that it is against law. The action was brought by the heirs of Elizabeth Carlson, deceased, to recover the sum which it is alleged the defendant agreed to pay, on the death of the said Elizabeth Carlson, to her heirs. The plaintiffs’ right to recover depends on deceased b...
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Action to foreclose a mechanic’s lien. There is no averment in the complaint that any sum was due from the Mendocino Flume & Mining Company, the owner, to Bellows the contractor; therefore the demurrer of the company to the complaint should have been sustained: Latson v. Nelson, 11 Pac. C. L. J. 589; Whittier v. Hollister, 64 Cal. 283, 30 Pac. 846. The judgment, so far as it concerns the Mendocino...
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The defendants allege and the court found that in the action of Brooks v. Swineford the plaintiff recovered a judgment for the sum demanded in his complaint. The allegation must be deemed to be denied by the plaintiff in this action; and it is assigned as error that the finding is not justified by the evidence. We are unable to find any evidence of the recovery of a judgment by the plaintiff in th...
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Application for writ of prohibition. We see no ground for granting the writ prayed for in this case. The application is therefore denied....
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If there was not, immediately preceding the date of the passage of the act to “establish a uniform system of county and township governments” (approved March 14, 1883), any such office as that of “county assessor of Alameda county,” there is not any such office now, unless *457it was created by some provision of that act; and if such' an office was created by any provision of that act, such provis...
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As the plaintiff in his complaint fixes the liability of each of the appellants at less than three hundred dollars, it follows that the superior court did not have jurisdiction of the action: Derby v. Stevens, 64 Cal. 287, 30 Pac. 820. Judgment reversed, with directions to the court below to dismiss the action as to appellants....
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Appeal from an order refusing to dissolve an injunction. The original complaint filed in this cause, and on which alone the court ordered an injunction to issue, did not state facts sufficient to warrant the court in granting the writ, and the same should have been dissolved. Orders reversed and cause remanded, with directions to grant the motion....
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This is an appeal by plaintiff from an order granting a new trial. The action was tried by jury. Section 659 of the Code of Civil Procedure provides that the party intending to move, for a new trial must, within ten days after verdict, file with the clerk, and serve upon the adverse party, a notice of such intention. In the case before us, the notice of intention was filed more than ten days after...
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This action depends in the main on the same facts as Kerns v. McKean, 65 Cal. 411, 4 Pac. 404. No defense of the statute of limitations, or of another action pending between the same parties for the same cause, is here set up. The points involved herein are passed on in Kerns v. McKean, and determined adversely to the defendant in this cause. The judgment is reversed, and the cause is remanded for...
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Action against a surety on a guardian’s bond. The points made by the surety on this appeal may be resolved into three, viz.: (1) The defendant was released and discharged of all liability; (2) there has been no legal ascertainment by the probate court of the amount due from the guardian; (3) the action is barred by the statute of limitations. While the plaintiff, Josephine M. Spencer, was a minor ...
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This appeal is by the defendant Coubrou' alone. He was made a party to the suit, and was served v summons, but did not answer. The decree, as to him joined the sale, or offering for sale, of forty thousand j hundred and twenty shares of certain stock, and directe t he return and deliver the said stock in specified amounts to persons named. Coubrough alone is interested in the question before us. W...
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We are of opinion that, under the contract and lease, Greenlaw, in the first instance, and Hill, as *474his successor, owned the logs until delivery in the boom at the mill. Such being the case, plaintiff was entitled to an enforcement of his lien, irrespective of advances made by Vance to Hill. Judgment reversed, and cause remanded, with instructions to enter judgment for plaintiff....
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No sufficient reason appearing why the application for the writ of mandate was not made in the first instance to the superior court, the application to this court is denied....
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The defendant was charged by indictment with taking, from certain individuals having the legal charge of her person, a female under the age of eighteen years, for the purpose of prostitution, under section 267, Penal Code. There was no evidence that the infant was taken from the charge or custody of the persons named in the indictment. Judgment and order reversed, and cause remanded for a new tria...
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On the 1st of May, 1877, the plaintiff, A. S. Bryant, recovered a money judgment, by confession, against J. M. Quimbie, upon which an execution was issued, and put in the hands of the sheriff of the city and county of San Francisco for collection, according to law. While the execution was in the hands of the officer, unlevied and unsatisfied, in whole or in part, Bryant claims to have commenced pr...
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It appearing that the appeal herein was perfected and the statement settled more than forty days *480before the transcript of the record was served and filed, and the time to serve and file said transcript not having been extended by stipulation or by order of the court, and no transcript having been served or filed until after the notice to dismiss the appeal herein had been served and filed, it ...
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The court below found, and there was evidence sufficient to sustain the finding, that the defendant entered into possession of the demanded premises under a written lease from the plaintiff and one Thomas, and that prior to the commencement of this action, which is ejectment, the term of the lease expired. There is nothing in the case to take it out of the general rule that a tenant cannot dispute...
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The real ground of the petitioner’s objection to the act of the legislature of March 13, 1883, entitled “An act to divide the state of California into congressional districts,” is that the bill was not read on three several days in each house after amendment. The constitution in terms requires that every bill shall be read on three several days in each house, unless in case of urgency such reading...
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It appearing that appellant has failed to file points and authorities within the time granted for that purpose, it is ordered that the order appealed from be affirmed....
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If, as we held in Merced Co. v. Hicks, 67 Cal. 108, 7 Pac. 179, the order vacating the judgment against the respondents was properly made on the ground that they had not been served with summons or appeared in the action, it necessarily follows that the refusal to make an order that said respondents should answer the complaint was not error. Order affirmed....
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1. The difference in the names Ah Yak and Ah Jack; also as to whether the men were employed to be paid one dollar, or a dollar and a quarter, or a dollar and a half; and the statement in the assignment that the contract was with the Melrose Smelting & Refining Works—if variances, were immaterial, and misled no one: Code Civ. Proc., sec. 469. 2. The court did not err in striking out that portion of...
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On the former appeal this court directed the court below to order an accounting, and with great minuteness directed in what manner the account should be taken. From that direction the only deviation which we have been able to discover was made in the interest of appellants. Judgment and order affirmed. We concur: Myrick, J.; Thornton, J....
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Appeal from an order granting a new trial. The complaint in this case states facts sufficient to constitute a cause of action. The point as to the averment of ownership is settled by the case of Salmon v. Symonds, 24 Cal. 264. See, also, Kidder v. Stevens, 60 Cal. 414; Van Rensselaer v. Bonesteel, 24 Barb. (N. Y.) 370; Teetshorn v. Hull, 30 Wis. 167. The court therefore erred in granting a new tri...
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The motion to strike out the so-called statement on motion for a new trial is granted. The motion to dismiss the appeal is denied....
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is a contest involving the right to acquire This title from the state to the southeast quarter of section 36, in township 15 south, range 2 east, Mount Diablo meridian. The right was awarded to the plaintiff, and from the judgment defendant appeals. The first application to purchase was made by the defendant. On the 21st of October, 1870, he filed his application in the office of the surveyor gene...
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As to the insufficiency of the evidence to justify the verdict, it only needs to be said that the evidence is conflicting, and, under such circumstances, this court will not interfere with such verdict on appeal. The parol evidence of the plaintiff did not tend to contradict, add to, or vary the written contract entered into between the parties to this action. The oral evidence referred to a diffe...
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In this proceeding, as the whole case appears on the record, there is no bill of exceptions requisite. A bill of exceptions is only necessary to place that on the record which, without it, does not go on the record. In this case the action of the court can be reviewed on the transcript of the record of the case in the court below, on an appeal from the judgment of dismissal. The application is den...
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The sale under-the execution issued on the judgment in Smith v. City of San Francisco was regular, and passed all the title which the city had on the day of sale.The sheriff’s deed passed such title to the purchaser, and such title came regularly by proper conveyances and vested in D. B. Rising, under whom both of the parties to this action claim. While Rising held the title, he executed to James ...
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Action to quiet title. The court below decreed that plaintiff was the owner of an undivided one-half of the premises, and that certain of the defendants were the owners of the other undivided one-half—one-twelfth each; and that plaintiff had not acquired the interest of the defendants by adverse possession. We are of opinion that the findings are supported by evidence; therefore, we look to the fi...
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From a final judgment entered on the 31st of December, 1879, and from an order made and entered on the 28th of December, 1880, denying a motion to vacate and set aside said judgment, the appeal in this ease has been taken. The judgment was rendered in a proceeding of intervention filed in an action of ejectment, brought by J. W. Eeay against John Butler and P. H. .Owens, defendants, to recover pos...
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The appeal in this case is totally destitute of merit. But, as the appeal seems to be regularly taken, we are reluctant to dismiss it directly. The motion to dismiss is therefore denied, which is ordered, with leave to either party to submit the case for decision after the lapse of ten days from the filing of this opinion....
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The appeal from the judgment cannot be considered, as the record shows no entry of it: McLaughlin v. Doherty, 54 Cal. 519; Preston v. Hearst, 54 Cal. 596. It does not appear on what the order on the motion to vacate the judgment by default was made. The record shows no authentication in any mode of any papers or documents used on the hearing of such motion. The only document before us on such appe...
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On an examination of the testimony in this case, we cannot say that the conclusion reached by the court below is not correct. It seems to us to be in accord with the deed from the mayor and common council of the city of Los Angeles to Basilio Jurado, under which plaintiff claims. The case presented is one of a conflict of testimony, and in such state of the testimony we never disturb the judgment ...
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The court properly exercised its discretion in refusing a second postponement of the trial, and refusing the amendment to the answer asked for at the trial. The charge of the court was correct, and the request to charge was properly refused. We find no error in admitting the evidence of plaintiff that the stock mentioned in the complaint was purchased for defendant through E. H. Hall & Co. There i...
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This cause comes up on appeal from the superior court of the county of Butte. One brother sued another for money alleged to be due on an account. The specifications of error set out that the court below found against the evidence in findings 1, 2, 3, 4, 6, 7, 12, and 13, and that it improperly sustained the plaintiff’s objection by his counsel to a question put by defendant’s attorney to the plain...
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This case was submitted to the court below upon an agreed statement of the facts, and findings were, therefore, not necessary. Besides, the court, in its decision of the case, recited the facts substantially as they were agreed to, and these facts, and the conclusions of law thereon, were separately stated. The exact point involved in this case was decided in Hay v. Hill, 65 Cal. 383, 4 Pac. 378. ...
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This is an appeal from a judgment and from an order denying a motion for new trial. The plaintiff is the assignee of one Phillip Lang, who had been adjudged an insolvent, under the act of April 16, 1880, of the legislature of California. The assignee claimed in the action brought by him against Gunnoldson, that the insolvent, Lang, in contemplation of insolvency, and with a view to defraud his cre...
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Appeal from an order granting a new trial. It is axiomatic in law that on such an appeal the appellant mnst make it affirmatively appear that error or abuse of discretion has been committed in granting the order. Neither will be presumed. Every intendment is in favor of the order, and unless that is overcome by something in the record of the case upon which the order was made, or unless it has bee...
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If the original E. M. & M. Co. had agreed, as a portion of the consideration of the conveyance to it by Bourn of the property conveyed, that it assumed and would pay all debts which he had contracted in and about the affairs of the mine, doubtless such agreement would have authorized the officers of the corporation to assume and agree to pay such debts; and, its obligation to that end being bindin...
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In this cause we have considered the points made on behalf of defendant, and find no error in the rulings of the court in regard to any one of them. 'Judgment and order affirmed....
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The only difference between the case as now presented and as presented on the former appeal (64 Cal. 32, 49 Am. Rep. 684, 7 Pac. 785), is that on the last trial the plaintiff was permitted against the objection and exception of the defendant, to put in evidence a deed from Hudson, the common grantor to the defendant of “the northeast quarter of section 16, Tp. 17 N., R. 3 E., excepting therefrom a...
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Conceding, without deciding, that the appellant has the right to prosecute this appeal, we are of opinion that the record is without error. The contention here is that the petition is defective. We have examined it, and are of opinion that it complies with the requirements of the statute, and is sufficient. Orders affirmed....
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Upon the principle that he who seeks equity must do equity, the demurrer to the complaint should have been sustained. Judgment reversed and cause remanded, with directions to the court below to sustain the demurrer....
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Action of claim and delivery for a herd of cattle. There was no conflict of evidence in the case; and it does not appear from it that there was such an immediate delivery and actual and continuous change of possession of the property in controversy, from the vendor to the vendees, as will satisfy the provisions of section 3440, Civil Code. The custody of the herd of cattle remained in the same per...
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The last legislature passed an act, approved March 21, 1885, entitled “An act to amend section 274 of an act entitled ‘An, act to establish a Civil Code of Procedure,’ relative to the compensation of court reporters,’’ by which it is provided that the official reporter shall receive as compensation for his services a monthly salary, to be fixed by the judge, by an order duly entered on the minutes...
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This is a motion to recall a remittitur, to the end that the proceedings of the court below, had since the remittitur went down, may be examined and certain alleged errors corrected. If any errors have been, committed, the way now proposed by the mover is not the proper way for reaching them. Motion denied....
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This is an action to set aside a deed to a lot in the city of Los Angeles, upon the ground that it was *530obtained by fraudulent misrepresentation. The defendants interposed a general demurrer to the complaint, which was overruled, and then filed separate answers. The case was tried, and' findings and judgment entered in favor of the plaintiffs. The appeal is from the judgment and an order denyin...
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Action on four promissory notes. Appeal from the judgment for plaintiff, and the order denying defendant a new trial. The complaint stated a cause of action, and the demurrer thereto was properly overruled. From the findings of the court it appeared that recovery on the first note was, as claimed in the answer, barred by limitation under section 337, Code of Civil Procedure. The recitals of facts ...
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Plaintiffs are husband and wife, and this is an action to recover damages for slanderous words alleged to have been spoken of and concerning the latter by defendant. A demurrer to the complaint was sustained, and, plaintiffs declining to amend, final judgment was rendered in favor of defendant for one hundred dollars counsel fees, as provided by section 7 of an act concerning actions for libel and...
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The plaintiffs recovered judgment in the court below for two thousand dollars damages for breach of contract. The defendant’s counsel in their brief contend that proper notice of an appeal was given from the judgment of the court below, as well as from its order denying a new trial. We do not so understand that notice, and are of opinion that by no fair interpretation can it be held to include not...
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This is an action for the recovery of personal property, and was tried by the court without a jury. *537Defendant had judgment, and plaintiff prosecutes this appeal. Defendant introduced no testimony in the court below. The question presented is not one where there is a conflict of testimony, for there was no conflict, but rather a question of the correctness of the findings on the testimony intro...
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This is an action in the nature of quo warranto, brought in the name of the people by the attorney general, on the information of one Pordyce Bates, to obtain a judgment that the defendants were usurping, intruding into, and unlawfully holding a certain franchise to collect tolls under a pretended wagon-road corporation. The defendants demurred to the complaint, on the ground that Pordyce Bates wa...
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The defendant was convicted under section 474, Penal Code, of the crime of willfully sending a false message by telegraph, with the intent to deceive the person named in the information. The testimony clearly shows, without conflict, (1) that the defendant had not the slightest idea he was deceiving the person to whom the message was sent; (2) that the person to whom the message was sent was not d...
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This is an action to recover damages for the obstruction, diversion, and use of the water of a stream, and for an injunction restraining defendants from continuing such obstruction, diversion, and use. The court below, on the trial, submitted a number of special issues to a jury, which were answered by it. Before the jury retired, counsel for plaintiff demanded of the court that the jury be allowe...
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Motion for an order for the repayment of money under section 957, Code of Civil Procedure. When the ease was before us on appeal from the judgment (67 Cal. 176, 7 Pac. 480), we reversed that part of the judgment which directed the payment of one thousand dollars counsel fees by the defendant to the attorneys for the plaintiff; the action being for a divorce. It does not appear, from the affidavits...
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The transcript was filed within the time prescribed by rule 2 of this court. The motion to dismiss the appeal is therefore denied....
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A motion is made to dismiss the appeal, which is from an interlocutory decree in partition, on the ground that the notice of appeal was not served on all of the adverse parties. As the notice was not so served, the motion must be granted. Ordered accordingly....
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Petition for writ of review. The case as presented by the petition does not involve any question of jurisdiction in the court below; therefore the petition is denied....
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The defendant’s demurrer to the complaint was sustained, and final judgment passed in the superior court in favor of defendant. From this judgment plaintiff has appealed. As we understand the agreement set forth in the complaint it was agreed by Frederick G. Smyth that Joseph L. Reed should be entitled to conveyance of one-third of all the lands devised to said Smyth “upon the full and complete pe...
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There was evidence given on behalf of plaintiff tending to sustain the issues presented in the complaint ; therefore the court erred in granting the motion for *552nonsuit. The evidence should have been submitted to the jury. Judgment reversed, and cause remanded for a new trial....
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The defendant was convicted of the crime of murder in the second degree, and adjudged to suffer imprisonment therefor the term of twenty-five years. On this appeal he makes the following points: (1) The court erred in admitting the declaration of deceased. (2) The court erred in admitting the testimony of H. J. White, who claimed to be an expert, as to whether the wound had been inflicted with a d...
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The action was brought to recover an alleged balance, with interest thereon, averred to have been paid by plaintiff in satisfaction of a certain promissory note made by defendants to the Bank of Lake, which note the plaintiff, as indorser thereon, was compelled to pay. The complaint avers that defendant Caroline “has conveyed to plaintiff, in part satisfaction of the amount paid by him,” certain r...
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There is nothing in the agreement made between Huntington and Russell by which Russell was bound to continue the business for any particular time; it was, in effect, that if he should carry it on with certain results, he would pay Huntington a certain sum. There is no fact stated in the complaint which shows that at the time Russell sold out the business it was sold for less than its then value, o...
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1. There is evidence to sustain the finding as to the agreement of the parties that the wire fence should be the division line. It was competent for the parties to make such an agreement. 2. It is not manifest that any injury occurred from the refusal to strike out the testimony of the witness Criss. We see no error in the transcript. Judgment and order affirmed....
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Action on an insurance policy. The property insured was destroyed February 15, 1880. The assured gave immediate notice of the loss, and as soon thereafter as practicable made proofs, as required by the policy. The complaint was filed November 1, 1881. The policy contained the clause that any suit or action thereon should be commenced within twelve months next after the loss. The action not having ...
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The foundation of this action is an alleged conspiracy between the defendants to cheat and defraud the plaintiff. In support of this action he states numerous facts and circumstances tending to establish such conspiracy, and a final consummation thereof by the defendants. The plaintiff avers he was in possession exclusively of a tract of land forming part of the San Pablo rancho; that he was culti...
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The defendant was convicted of the crime of embezzlement, upon information under section 508 of the *564Penal Code. A motion for a new trial was made in his behalf and denied. From the order made therein and the judgment of conviction he appealed. The grounds of this appeal are that the verdict of the jury was contrary to the evidence, and that the court should have granted a new trial for that re...
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A rehearing was granted to Henry Coubrough, one of the defendants herein. An examination of the record, petition for rehearing, and authorities, convinces us that the opinion delivered by Department 2 of this court, on the thirtieth day of April, 1885, was in all respects correct: Oliver v. Blair, ante, p. 472, 6 Pac. 847. The complaint upon which default was taken against Coubrough stated facts a...
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This is an action to enforce the specific performance of a contract for the sale of a lot in the city of San Francisco, and to require the defendant to pay certain taxes which, it is alleged, are a lien on the lot. The contract provided that the title to the lot should be “good and marketable, and free of all encumbrances.” The complaint alleges that in the fiscal year 1880-81 the assessor of the ...
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I concur in the judgment on the ground stated by McKee, J....
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The defendant was convicted in the superior court of the county of Mono on an. information charging him with an assault with intent to commit murder, and from the judgment of conviction, as well as from the order denying his motion for a new trial, he appeals to this court. It will not be necessary for us to examine all the alleged errors imputed to the court below, particularly those in connectio...
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Appeal from a judgment of conviction of murder in the first degree, and from an order denying a new trial, in the superior court of the county of Mendocino. There is an absence of all evidence in the transcript before us. We cannot then say that the instructions asked by the defendant, and refused by the court, had any application to the-ease as made: People v. Herbert, 61 Cal. 545. The same thing...
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This is an action to determine a contest between applicants for the purchase of land from the state of California, as provided for under sections 341J-3416 of the Political Code. The cause was tried by the court, a jury having been waived, and judgment was rendered upon written findings in favor of plaintiff!, from which, and from an order denying a new trial, defendant appeals. It is objected to ...
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This is an action to enjoin defendants from interfering in the navigability of Lake Earl, which had been by an act of the legislature approved February 4, 1874, declared navigable. The lake is averred to be in fact navigable. It is contended that the contemplated interference would be a public injury; that the complaint does not show any special injury to the plaintiff, and therefore it cannot mai...
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This cause has been before this court twice on appeal, and the judgment on the first appeal will be found reported in 55 Cal., at page 433 et seq. (under the title of Sigourney v. Zellerbach), and on the second appeal in 63 Cal., at page 635 [under the title of Cross v. Zellerbach] . On the appeal last referred to the case bears the same title as the one before us; Sigourney having since the comme...
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This is an action to recover the sum of fifteen hundred and fifty dollars, besides interest thereon, which it is alleged the defendant had collected and now holds for the use of the plaintiff. From the findings it appears that the plaintiff was the owner of three promissory notes made by one Jonas Cohn, on which there was due for principal the sum of fifteen hundred and fifty dollars, and that on ...
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We have examined the evidence given on the trial of this case, and find it sufficient to sustain the findings as to the consideration of the note. The judgment and order are affirmed....
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This action was brought for the recovery of one thousand and forty dollars and ten cents for the wrongful conversion by defendants of certain railroad ties, the property of the plaintiff. The case was tried by the court without the intervention of a jury, and the following are the findings of fact and the conclusions of law upon which judgment was rendered for the plaintiff: “(1) That the defendan...
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The defendant executed to plaintiff an order in the following words: *589“$3,628.66. Michigan Bluffs, March 7, 1883. “On June 15, 1883, for value received, please pay Golden State & Miners’ Iron Works, or order, at the banking-house of Wells, Fargo & Co., San Francisco, Cal., thirty-six hundred and twenty-eight and sixty-six one hundredths dollars. “[Signed] WILLIAM MUIR. “To the Weske Consolidate...
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The application is denied, on the authority of People v. Williams, 24 Cal. 33: See People v. Mahoney, 18 Cal. 185; People v. Shuler, 28 Cal. 494....
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Defendant Brainard contracted to construct a certain dwelling-house for defendant Beaudry for a certain sum of money, and the plaintiffs contracted with Brainard to furnish certain material for the house. The court below found that the lien which was sought to be enforced by the action was filed prior to the completion of the building, and was therefore prematurely filed. The statute reads: “Every...
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After judgment had been rendered in favor of defendants, plaintiff gave notice of its intention to move the court to vacate and set aside the judgment theretofore rendered and to grant a new trial. Subsequently, on notice, the plaintiff moved the court for leave to amend the notice by inserting the word “decision” in place of the word “judgment,” on the ground, as stated in affidavits, that the wo...
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The findings show the plaintiff, Bliss, to be the true owner of the brandy in controversy. It was manufactured by one Belden, who was a licensed United States distiller, for the assignor of the plaintiff, for a certain sum per gallon. The brandy was made of grapes belonging to plain*596tiff’s assignor, who, in order that the payment of the government tax of ninety cents per gallon might be delayed...
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It was contended on behalf of the plaintiff that the third, fourth, and fifth findings of fact, on which the judgment given below rests, are not within the issues made by the pleadings, and cannot, therefore, be regarded. But the pleadings put in issue the question of assessment or no assessment (San Francisco v. Eaton, 46 Cal. 100), and any fact or facts going to show that no valid assessment was...
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The defendant claimed that the logs, for the conversion of which he was sued, were orignially the property of Clark & Rutherford, and were by them sold to one A. H. Rutherford, and by the latter sold to the defendant. They were logs cut in the forests of Mendocino county, to be converted into lumber, and were, at the time of the sale under which the defendant claims, as well as at the time of the ...
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On the 2d of July, 1876, M. W. Durkee, a boy four or five years old, was run over by an engine belonging to and used at the time in the service of the corporation defendant. To recover damages for the personal injuries *600sustained by the boy on that occasion this suit was brought by his guardian ad litem against the railroad company, on the ground that the injuries were caused by the negligence ...
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This case originated in an action commenced in a justice’s court to recover damages for a trespass on real property. To the complaint in the action there was filed a verified answer, which presented issues involving title and possession of the property, and the justice transferred the action to the superior court, where, trial being had, judgment was entered for defendant. The contention is that t...
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In this case the. appellant contends that the judgment and order appealed from should be reversed, because (1) the court below erred in overruling a general demurrer to those portions of defendant’s answer designated as his second and third defenses; (2) because the decision and judgment of the court are based on the findings of particular facts which were not within the issues of the case, and al...
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This action was brought against a husband for necessaries furnished his wife, under the provisions of section 174, Civil Code. A jury being waived, the court rendered judgment in favor of the plaintiff for part of his demand. From that, and from an order refusing him a new trial, defendant Bendixsen appeals. The testimony of the plaintiff’s witnesses was all by depositions. The defendant appeared ...
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Appeal from a judgment and order denying a new trial in an action to recover damages for personal injuries. Two assignments of error are made in the case: (1) That the verdict is not justified by the evidence; (2) that the damages awarded are excessive. As to the first, there was a substantial conflict in the evidence. The verdict must therefore be taken as conclusive of the facts. As to the secon...
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This is an action to recover a balance due on a contract for the sale and delivery of fifty tons of coal. Plaintiff had judgment, and defendants appeal therefrom, and from an order denying a new trial, and from an order refusing to strike out plaintiff’s cost bill. We think this cause must be reversed and a new trial ordered. Defendants filed what is denominated an 11 amended answer and cross-comp...
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This is an action to recover damages for an injury received by the plaintiff from defendant’s railroad ears. *615Plaintiff had judgment for fifteen thousand dollars, from which judgment, and from an order denying a motion for new trial, defendant appeals. The material averments of the complaint are that defendant is a corporation, the owner and manager of a certain railroad extending southerly fro...
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This is an action to recover possession of certain personal property, if possession can be had, and, if not, *622the value thereof. Defendant had judgment, from which, and from an order denying a new trial, plaintiffs appeal. In 1876, Owen Connolly, the defendant, took a lease of a lot of land on Fourth street, near Berry, in the city of San Francisco, for a term which was to expire January 1, 188...
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The information in this ease accused the defendant of the crime of forgery, in having feloniously, willfully, and unlawfully uttered, published, and passed to one Elgin a counterfeit paper in writing as a genuine promissory note of one Fitch, with the intent to prejudice, defraud, and damage the said Elgin. Elgin, as the agent of Fitch, was endeavoring to collect from Phillips a debt due Fitch of ...
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Counsel for defendants requested the court below to give this instruction to the jury: “If you believe any *626witness has sworn falsely as to any material fact, you must disbelieve such false statement, and may disbelieve the whole of his or her testimony.” The court refused to give the instruction, but instead gave this: “If you believe that any witness who has testified in this case has willful...
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— The motion to dismiss the appeal herein is not well taken, and should be denied. It is made for *518the reason, as alleged, that one of the defendants, in whose favor a judgment was rendered in the trial court, was convicted of embezzlement, and while acting as administrator became civiliter mortuus, and that, being sued as such, no service of notice of appeal could be made on him or his attorne...
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On the eleventh day of November, 1873, Cohen owned one-third and Mitchell two-thirds of the Bonny placer mine. Cohen had become indebted to Mitchell in the sum of five thousand dollars, and on that day, for the expressed consideration of that sum of money, conveyed to him his one-third interest by a deed absolute in form. The deed was intended to be only a mortgage, as is clearly shown by the pape...
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The evidence given on the trial tended to show that officers and agents of the defendant were engaged in constructing a dam for the defendant, and in such construction committed some of the acts complained of. That being the case, the court erred in granting a nonsuit. The court sustained an objection to the following question propounded to one of the officers: “Question. And unless there is an in...
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The evidence showed that there was no such immediate delivery and continued change of possession of the property in question as required by statute to make valid the transfer to plaintiff: Civ. Code, sec. 3440. Judgment and order reversed and cause remanded for a new trial....
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Appeal from an order granting a new trial. The judgment rendered in the case was founded upon *635an elaborate finding of facts. One of the grounds of the motion to vacate the judgment and grant a new trial was “insufficiency of the evidence to justify the findings and decision of the court, and that the judgment and decision were against law. ’ ’ The court ordered a new trial without stating any ...
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The application for a writ of mandamus is denied upon the ground that the petition fails to state sufficient reasons for not applying to the superior court in the first instance: Rule 28 of the supreme court....
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This is an action of ejectment to recover certain lots of land in the town of Modesto. Plaintiff had *637judgment, from which, and from an order denying a new trial, defendant appeals. The demurrer to the complaint was properly overruled. The pleading demurred to avers ownership of the property in plaintiff, the making of a contract for the sale thereof to defendant, payment of three hundred dolla...
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Plaintiff and Jarius A. Joy were partners in the business of farming. In January, 1883, Joy died, and on the first day of February the defendant was appointed administrator of his estate. It is alleged in the complaint that at the time of his death there was personal property belonging to the partnership of the value of nearly five hundred dollars, and that the partnership was indebted to the plai...
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Action to quiet title by plaintiff against Krauss. Roth intervened. Demurrers were interposed to the answer and complaint in intervention, and were both overruled. Judgment was then rendered against the plaintiff, and his motion for a new trial denied. From the judgment and order he appealed. The point is made by respondents that the court erred in settling and considering the statement on motion ...
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Supposing a certain piece of land to belong to the United States government, and wishing to pre-empt it, John Tully bought the possessory right thereto from, and paid the price therefor to, one Murphy. He procured the deed to be made to himself and his brother Owen without Owen’s knowledge. John let Owen into possession of the land as his tenant, but not as a claimant to any part thereof. A few ye...
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This is an action to redeem a lot of land in the town of Modesto. A deed, absolute in form and purporting to be in consideration of two hundred and fifty dollars was executed and delivered by plaintiff to the defendant. The latter at the same time delivered to the former a bond, by which he bound himself to convey to the former, at any time within two years, the same property upon the payment to h...
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This cause is ruled by the decision in the case entitled “In re Buckley, 69 Cal. 1, 10 Pac. 88, charged with contempt,” and therefore it is ordered that the order *649to show cause herein be discharged and the proceedings dismissed. We dissent: Ross J.; McKinstry, J.; McKee, J....
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The application for a writ of prohibition in this case is denied for the reason that petitioner has an adequate remedy by appeal from the order complained of....
Views: 3
The action is claim and delivery. The judgment does not conform to the requirements of the statute in such cases, for which reason it must be reversed: Code Civ. Proc., see. 667; Berson v. Nunan, 63 Cal. 550. The verdict contains the same vice, for which reason a proper judgment could not be here ordered, assuming that none of the other points made by appellants are well taken. A new trial must th...
Views: 0
This was an application to the superior court of the county of Santa Clara for a writ of mandate to compel the board of supervisors of that county to locate tollgates and to fix rates of toll on a certain road which it was claimed the corporation petitioner had a right to collect tolls upon. An order was made requiring the respondent to show cause why the writ should not issue. The respondent move...
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Several of the questions argued by counsel cannot be considered because of the state of the record. The affidavits printed in it are in no manner identified as having been used on the hearing of the motion from the refusal of which the appeal is alone taken. There is no appeal from the judgment. Order 733, referred to in the statement, and therein stated to be made a part of it, is not to be found...
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Action to quiet title. Plaintiff’s claim to title is founded on a tax deed which omitted a necessary recital. On the trial in the court below, at the conclusion of plaintiff’s evidence, the defendant moved for a nonsuit, which was denied. The defendant then 'offered his testimony, after which the cause was submitted on the merits, and judgment was rendered in favor of defendant. The plaintiff (app...
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It is manifest, from the facts alleged in the ' petition, that the justice’s court whose judgments we are asked to review had jurisdiction of the subject matter, and of the person of the petitioner, as defendant, in the action in which the judgment was rendered (sections 114, 894, Code of Civil Procedure); and that, by the appeal taken from the judgment, the superior court acquired jurisdiction to...
Views: 5
Upon the authority of In re Gannan, 69 Cal. 541, 11 Pae. 240, this day filed, the application for a writ of prohibition is denied....
Views: 2
The original petition in this case for leave to prove a bill of exceptions, and to have the same certified as correct, under section 652, Code of Civil Procedure, was heretofore held insufficient by this court, and leave given to file an amended petition. That petition as filed has annexed thereto, and made a part thereof, as an exhibit, a writing containing the evidence, rulings, and exceptions t...
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The amended answer filed in this cause raised.issues entitling defendant to a trial upon the merits. The order sustaining plaintiff’s demurrer to the amended answer was therefore erroneous. Judgment reversed and cause remanded, with directions to the court below to overrule the demurrer. Thornton, J., dissenting....
Views: 2
This is ejectment to recover certain leased premises, upon the ground that the lease had become forfeitéd and void. It appears from the record that on the fourth day of April, 1877, Z. B. Heywood leased to the de*659fendant the Berkeley Land & Town Improvement Association, a corporation, the Berkeley Ferry wharf, with two strips of land, on one of which the wharf was constructed, for the term of t...
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We think the remedy of the petitioner is by' appeal, and that the application for a writ of prohibition should be denied. So ordered....
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The respondent, Hegard, makes the point that this cause should be considered here upon the judgment-roll only, for the reason that the notice of intention to move for a new trial on the part of the appellant, although served within the statutory period of ten days, was not so filed. From the statement on motion for a new trial it appears that findings were filed on the fifth day of February, 1885;...
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We are of opinion that, from the facts stated in the petition, the petitioner is not entitled to a writ of prohibition. The request of the governor, as set forth in the petition, was sufficient authority for Judge Williams to hold a superior court in the county of Los Angeles. It is therefore unnecessary to consider any, issue raised by the answer of respondent. The application for a writ of prohi...
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The certificate of the clerk of the court below, filed at the hearing, is sufficient, and the motion to dismiss is denied. On the authority of People v. North San Francisco, H. & R. R. Assn., 38 Cal. 564, the judgment is reversed and cause remanded....
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Under a contract made in pursuance of the act of April 23, 1880, entitled “An act to promote drainage” (Stats. 1880, p. 123), the plaintiff performed work and furnished material, and his claim therefor was audited and allowed by the state board of drainage directors, as provided for in the act. That act was declared unconstitutional by this court: People v. Parks, 58 Cal. 624. On the 10th of March...
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This action was originally brought by A. W. Peck, in his lifetime (for whom his executor, Richards, has been substituted), for the purpose of canceling a deed of gift made by said Peek to the defendant, M. E. Donner, while he was in such an enfeebled mental condition, and so circumstanced in his surroundings, as that he did not understand or appreciate the nature, effects, and consequences of the ...
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The answer raised an issue as to the presentation of the claim to the executor. The decision is sustained Toy the evidence. There was no proof of the signature of the executor to the rejection of the claim, and therefore no proof of presentment. Judgment and order affirmed....
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We cannot take notice that plaintiff moved for judgment on the pleadings, or that the motion was granted. Recitals in a judgment entered by the clerk are ordinarily immaterial; at least, on direct appeal. They are not necessary to the judgment, are not ordered by the court, and are frequently but the clerk’s exposition of events antedating the judgment: Lesse v. Clark, 28 Cal. 36. Here the judgmen...
Views: 0
The court was justified by the evidence in finding that the plaintiff was not the owner of the premises upon which the wood and timber had been cut, and had no interest in the premises other than as security, and that he was not the owner of the wood and timber, and that the wood was cut by parties in the possession of the premises under a claim of title adverse to plaintiff. Under such circumstan...
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The court below should have granted a new trial. The evidence was insufficient to show that there was an immediate delivery and continued change of possession of the property in controversy. Judgment and order reversed and cause remanded for a new trial....
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The demurrer was properly overruled. The findings show that, on the day mentioned in the complaint, the plaintiff was in the peaceable possession of the property, and *689that on that day, during his absence, Murray wrongfully entered thereon, and has ever since forcibly detained possession thereof from the plaintiff. As there was no omission to find upon any material fact set up by the defendants...
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The evidence is conflicting on every material point. Therefore we can find no error in denying the motion for a new trial; nor do we find any error in the record. Judgment and order affirmed....
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This is an appeal from an order granting a new trial. Judge Moore tried the cause, a jury being waived, and gave judgment for the plaintiff. A statement on motion for a new trial was settled by him, and afterward the motion was duly heard and granted by Judge Griffith. The order was clearly made on the ground that the evidence was insufficient to justify the decision. The appellant contends that t...
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Appeal from judgment. If the recital of facts contained in the decree is not to be treated as a finding of facts, it will be deemed that findings were waived. If the recital is to be treated as a finding of facts, the facts were therein sufficiently found to sustain the decree. There is no bill of exceptions; and it does not in any manner appear that findings of fact were not waived. It may be tha...
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This is an action to recover damages for injury to the land of the plaintiff by construction of levees, which are claimed to have obstructed the natural flow of water, and for a judgment that the levees, dams and embankments of defendants be abated as a nuisance. Plaintiff had a verdict as follows: “We, the jury in the above-entitled cause, find for the plaintiff in the sum of fifteen hundred ($1,...
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The verdict is not sustained by the evidence. The instructions given show no error. Judgment and order reversed and cause remanded for a new trial....
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It does not appear from the findings that the property omitted from the assignment was in fact exempt from execution. Judgment reversed and cause remanded....
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The case shows that the water in controversy, while situate upon public land of the United States, was appropriated by the plaintiff prior to acquisition by defendant of any right or title from the government to the land upon which the water is situate. Judgment and order affirmed....
Views: 2
The nonsuit was improperly granted. The deed to Henry Stull & Co. vested'the title in Henry Stull: Winter v. Stock, 29 Cal. 411, 412, 89 Am. Dec. 57. The answer shows a sufficient ouster. Judgment reversed and cause remanded for a new trial....
Views: 0
There was no misjoinder of parties defendant. The complaint was sufficient. There was no error in striking out that portion of defendant’s, Boydstun’s, answer, which attempted to raise an issue as to the necessity of taking the land for the road. The question of necessity is settled by the board of supervisors, and, having so determined, it is not a question for the court to pass on: Tehama Co. v....
Views: 1
Plaintiff’s demurrer to the intervention should have been sustained. The intervention does not allege facts which show that the judgment was unjust, or facts showing that the defendant in Chielovich v. Roth had a defense to that action. The statement that he pleaded a defense which he was advised by counsel was good, and which he believed to be good, was not sufficient. The mode of offering to per...
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We have examined the points presented on behalf of the appellants, and we find no error in the rulings of the court below, nor in the instructions. The court did not err in denying the challenges to jurors. They were challenged for actual bias, and no exception is by law allowed on such ruling: Pen. Code, sec. 1170; People v. Cotta, 49 Cal. 166; People v. Vasquez, 49 Cal. 560; People v. Taing, 53 ...
Views: 7
The findings are not contradictory, and they cover all the material issues. Judgment affirmed....
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We are of opinion that the deed from the Natoma Water & Mining Company to the state did not impose an obligation upon the company to proceed to the completion of the canal. Therefore the ruling of the court below on the demurrer was correct. Judgment affirmed....
Views: 0
Ejectment. The defendants pleaded the statute of limitations. The findings fail to respond to this issue. The judgment is reversed and cause remanded....
Views: 0
These three cases are embraced within one appeal. The court below was justified in granting the nonsuits. The evidence failed to show a waiver by the defendants of notice of other insurance, and failed to show any act by which the defendants would be estopped from asserting want of such notice. The orders denying motion for new trial are affirmed....
Views: 0
The court erred in dissolving the attachment in this case. The affidavit of the defendant was fully answered by the affidavits produced on behalf of plaintiffs. The court had no right* to disregard or discredit the showing on behalf of plaintiffs. The undertaking was sufficient. Order reversed....
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Ejectment. The defendant pleaded the statute of limitations. . The land in controversy is a strip of land, about two and one-half feet wide, of lot 8, adjoining the west half of lot 7. The plaintiff proved paper title to lot 8. The defendant proved paper title to the west half of lot T, and gave evidence tending to show that he and his grantors of the said west half of lot 7 had been in the contin...
Views: 1
The plaintiff, being intoxicated, lay down by .the side of the defendant’s railroad track, at a point within its right of way, about a mile distant from Salinas, in Monterey county, and went to sleep; and while lying there in that condition had one of his feet so crushed by the engine of the defendant’s south-bound passenger train as to require amputation. The train was on time, and was running at...
Views: 0
These three cases are embraced within one appeal. The court below was justified in granting the nonsuits. The evidence failed to show a waiver by the defendants of notice of other insurance and failed to show any act by which the defendants would be estopped from asserting want of such notice. The orders denying motions for new trial are affirmed....
Views: 0
Motion to dismiss an appeal on the ground of failure to file an undertaking as required by law. An undertaking was filed, with one surety only, viz., the Pacific Surety Company. The company was incorporated under the laws of this state, and executed the undertaking under the act of March 12, 1885: Stats. 1885, p. 114. That act authorized the officer approving a bond or undertaking to accept, as so...
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Application, on clerk’s certificate, to dismiss an appeal for failure to file the transcript in time. The application is granted....
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In respect to the crime of which defendant was convicted, the instructions of the court below to the jury were conflicting, for which reason the judgment and order are reversed, and cause remanded for a new trial....
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We are of opinion the court should have granted plaintiff’s motion to set aside the judgment, and for leave to file an amended complaint. The order appealed from is reversed, and the cause remanded, with directions that the motion of plaintiff be granted....
Views: 0
This is an appeal by plaintiff from the judgment and certain orders in the case with the same title (No. 9121) : 71 Cal. 295, 12 Pac. 167. The court below rendered judgment herein in favor of plaintiff for the sum of five thousand dollars. The plaintiff claimed that he was entitled to legal interest on this sum from the 5th of April, 1879, the day on which possession of the land involved in the su...
Views: 1
The court below did not err in its calculation of interest. The mode adopted is in strict accord with the contract of the parties. Judgment affirmed....
Views: 0
This action was brought with a view of obtaining a judgment affirming to the plaintiff the whole of the right, title, and interest in and to certain waters mentioned in the complaint, as well as to the pipe which conducted said waters over the defendants1’ land, as also to the waterworks *725and appurtenances thereto belonging. An injunction was prayed for, restraining the defendants from tapping ...
Views: 0
There was sufficient evidence to support a finding in favor of defendant upon the plea of the statute of limitations to uphold the judgment. Order denying plaintiff’s motion for a new trial affirmed....
Views: 0
In this cause, which is ejectment, the court found that defendants were not in possession when the action was commenced. This finding is sustained by the evidence. Judgment passed for defendants. The finding above mentioned is conclusive of the cause and no other point need he determined. Judgment and order affirmed....
Views: 0
The facts stated in the affidavit on which the motion to quash the writ heretofore issued in this case is made are insufficient to authorize this court to grant the motion. The motion must be denied, with leave to respondent to answer within ten days....
Views: 0
We are of opinion that the affidavit on which the judge of the superior court made the order of arrest stated facts and circumstances tending to show that the petitioner was about to depart from the state with intent to defraud his creditors. We therefore decline to discharge the petitioner from arrest. The petitioner is remanded to custody and the writ is discharged....
Views: 3
On the authority of Kahn v. Bauer, ante, p. 728 (No. 11,764, this day decided), motion denied, with leave to respondent to answer within ten days....
Views: 0
This is an action to recover damages by plaintiffs, the widow and children, as heirs, of Gilman George Brown, deceased, for the. death of the latter, through the alleged negligence of defendant, a railroad corporation. Plaintiffs had a verdict and judgment for ten thousand dollars and costs, from which judgment, and from an order denying a new trial, defendant appeals. The decedent of plaintiffs w...
Views: 5
Motion to dismiss appeal granted....
Views: 1
This cause .was decided by Department 1 of this court, in an opinion filed July 14, 1886, affirming the judgment of the court below. A rehearing in bank was thereafter ordered, and the case again comes under review. 1. The. act of March 12, 1885, authorizing the commencement of this action by plaintiffs against the state, simply empowered them to bring a suit, and to make the defendant a proper pa...
Views: 0
The certificate of the clerk of the superior court is in due form, and the appeal should be dismissed. But the application of respondent for damages on appeal must be denied. We are not authorized to decide an appeal to be frivolous on the ex parte affidavit of respondent that he has been informed and believes it to be without merit: Vaughn v. Werley, 62 Cal. 181. Appeal dismissed....
Views: 0
The motion for a new trial is not the proper remedy in this cause. Considered as a petition for a rehearing, we see no reason to grant it. Motion for a new trial and a rehearing denied....
Views: 7
It appears by the answer of respondent that an appeal has been duly perfected to said superior court *742from a judgment of a justice of the peace, who transferred all the papers in the case except a copy of his docket, which the superior court has made an order to have transferred as the law requires: Code Civ. Proe., sec. 975. Petitioner demurs to said answer, and upon the issue so raised the ma...
Views: 0
Conceding that the court below erred in its direction to the jury, in which it affirmed the power of the president and secretary of the Bear Creek Lumber Company, a corporation, to make a pledge of its property in satisfaction of a just claim of the company, still the jury might have based their verdict on the conclusion that such assignment was void as made with intent to hinder, delay, and defra...
Views: 0
In this cause the appellant Ketchum, on taking an appeal, filed the undertaking on appeal required by law. This had the effect of staying the execution of the judgment as to him, in all respects, pending the appeal. The following order is directed to be entered: On motion of appellant Ketchum, it is hereby ordered that the execution of the judgment herein, as to him, be, and is hereby, in all resp...
Views: 0
This is an action for the recovery of personal property. The wife of the plaintiff was called as a witness for the defendant, and gave testimony against the plaintiff without his consent. Her testimony was material—• in fact, covered nearly all the matters included in the findings of the court. The ruling admitting the testimony over plaintiff’s objection was duly excepted to. We think the evidenc...
Views: 0
This is an appeal from an order granting a new trial. The action was instituted to recover from Vanderslice, the defendant, the value of some silverware left with him for safekeeping. Judgment was rendered for the defendant. The plaintiff then moved for a new trial, which was granted, and from the order made therein this appeal is prosecuted. We perceive no such abuse of the discretion vested in t...
Views: 0
Application for a writ of review denied. The petition does not set forth sufficient facts....
Views: 0
This action is to recover personal property levied upon as the property of Jonathan Kittredge. The plaintiff claims as purchaser from Kittredge. The negotiations for the sale were made in March, but the sale was not consummated until April 1st—the day on which summons was served on Kittredge. The levy of the execution was in September following. We think the undisputed facts show that the sale was...
Views: 0
A careful examination of the transcript of the record—including the affidavits used on the motion— satisfies us that the court below did not abuse its discretion in granting the defendant’s motion to dismiss the action, but that it was justified by the evidence in making the order appealed from. Order and judgment affirmed....
Views: 1
This is an appeal by the executor from an order settling an account rendered by him to the probate *752court. We do not think it necessary to consider the question as to whether the issues made at the contest were sufficient. . The court had the power to examine, to allow or disallow, any items in the account, even though there were no contest; and, if it were brought to the knowledge of the court...
Views: 1
This is an appeal by the defendant from an order granting the plaintiff a new trial. The motion was made and granted upon the ground that the evidence did not justify the decision and judgment. It is settled law in this state that a motion for new trial, made upon the ground of the insufficiency of the evidence to justify the verdict, or other decision, is addressed to the sound legal discretion o...
Views: 0
The demurrer to the complaint was properly sustained. The plaintiff had no claim against the defendant, the county of Los Angeles, according to his own pleading, save and except one based upon the condition that the board of supervisors of that county should accept the bid of some “reliable party” for the building of a jail. They refused, in the exercise of a proper discretion, as the complaint sh...
Views: 0
This is an action in ejectment for a lot of ground in the city and county of San Francisco. The court below gave' judgment for the" plaintiff, and the defendant moved for a new trial, which, being denied, he appealed from the order made in the premises. The only real ground of objection which the defendant makes against the correctness of the action of the trial court is that the findings are not ...
Views: 1
An action to quiet title to thirty-three ninety-sixths of certain land described in the complaint. Some time during the year A. D. 1859, one George W. Ellis filed in the recorder’s office of the city and county of San Francisco a *758pre-emption claim to one hundred and sixty acres of salt marsh and tide lands, the property of the state of California. In the interval between such time and October ...
Views: 0
Mrs. Haley instituted an action for divorce against her husband, Salisbury Haley. She alleged and proved that, in a former action for divorce instituted by him against her, he had, in his pleading and affidavits filed in the cause, charged her falsely and maliciously, and for the purpose of grieving her, with having been pregnant at the time of their marriage by a man other than himself, and that ...
Views: 1
We are of opinion that the evidence is insufficient to justify the findings of fact in the court below in the following particulars, viz.: That the location of the Willow quartz lode was made at the request or for the use or benefit of the defendant, Philipp Deidesheimer; that Deides*769heimer conveyed an undivided half of the American quartz lode to Busch on the 21st of April, 1884, or at any oth...
Views: 0
Tested by what we conceive to be now the well-settled rule in this state, the complaint states facts sufficient to constitute a cause of action. The demurrer to it was properly overruled. As we construe the deed of Louis Lamori, it conveys all his interest in the land to his wife. The contract with the trustees of the Lick estate is clearly referred to in the deed for the purpose of describing mor...
Views: 1
This action is brought by the plaintiff, Mary R. Cummings, against her husband, "William N. Cummings, defendant, for a divorce from the bonds of matrimony, and for a division of the community property, etc. Morgan L. Ketchum, James L. Simpson, and the Bank of Watsonville were also made defendants. It is averred in the complaint that, during the coverture of plaintiff and defendant Cummings, the la...
Views: 2
The demurrer to the answer of defendant Elizabeth Burkle was properly sustained. We are of opinion that there is error in the judgment in the direction for the sale of the property without the right of redemption. The right to redeem is given by statute, and the defendant cannot be deprived of it by the court. It makes no difference that the security here involved is a deed of trust. It was held a...
Views: 2
On August 22, 1870, Jackson and Rulofson, being the owners of lots 6, 7 and 8, in block 1, in the town of Davisville, executed and delivered to defendant Allen a contract agreeing to sell said lots to him for the sum of two hundred and fifty dollars, and to convey the same on the twenty-second day of August, 1872. The sum of fifty dollars was paid down and the balance was to be paid in two install...
Views: 2
The main question argued in this case, and the one upon which we think the decision must turn, is whether the act of 1880, entitled “An act to amend section 3481 of the Political Code,” is in violation of section 24 of article 4 of the constitution, which provides that “Every act shall embrace but one subject, which subject shall be expressed in its title.....” It is not contended that the act emb...
Views: 8
This is an appeal from an order granting a new trial, made by a judge other than the one who presided at the trial of the cause. The order was made upon the ground that the record did not show sufficient evidence to support one of the findings of facts. Every intendment prevails in favor of the correctness of such an order, made in the manner above specified, and such intendments must be overcome ...
Views: 1
This was an action of ejectment for a tract of land. As to the facts given in evidence going to show the plaintiff’s legal possession of the premises in dispute, prior to the defendant’s entry thereupon, and as to those relative to the character of the defendant’s entry, whether or not it was in good faith, and under a claim of right adverse to that of the plaintiff, there is a decided conflict, f...
Views: 1
This is an action by the assignee of Emma, F. Sanders and W. W. Cowell, insolvents, to compel defendant to convey to plaintiffs certain lots of land, upon *788the averment that they were conveyed to defendant by said Emma P. Sanders without consideration, and for the purpose of defrauding creditors, etc. Defendant claimed that he had furnished the purchase money to buy said lots; that the deed was...
Views: 1
The motion to dismiss the appeal herein is denied. We do not see that the appellant is in any default for not having filed the transcript on appeal, the bill of exceptions not having been settled until the 22d of April, 1887: Rule 2 of this court. Motion denied....
Views: 2
This is an action to enforce payment of a swamp-land assessment. The plaintiff was organized as a swamp-land district in January, 1882, to reclaim certain swamp lands situate on Andrus island, in Sacramento county; and, as alleged in the complaint, the assessment sought to be recovered was thereafter regularly levied on land owned by the defendant within the district. In the court below judgment w...
Views: 1
There is no error in the record. We think that Mrs. Whyler was a guardian when she executed the lease to defendant, and that, the lease was properly executed. The judgment must be affirmed. So ordered....
Views: 5
This is an action brought for the purpose of reforming certain conveyances, and to recover certain lands which should have been properly described, but which by mistake were erroneously set out, therein. The plaintiff had *806judgment against' all the parties defendant, but only one of them, Williams, appeals therefrom, and from an order denying him a new trial. The points made by the appellant ar...
Views: 1
The petition is insufficient, and the application for the writ of review must be denied. Ordered accordingly....
Views: 0
This is a proceeding under chapter 1, title 5, Code of Civil Procedure, for the removal of respondent as an attorney and counselor. We think the evidence insufficient to sustain any of the charges preferred against him. Therefore the proceeding is dismissed....
Views: 0
The defendant, Hattie W. Strong, and her husband, by a deed absolute in form, mortgaged to the plaintiff the wife’s separate property, upon which a homestead had been declared, to secure a debt of the husband. The husband died and the defendant Coe was appointed administrator of his estate, and as such gave notice to the creditors to present their claims. The plaintiff did not present any claim, b...
Views: 1
In the above-entitled cause the application for a writ of review is denied....
Views: 3
This is an action to determine an adverse claim to one hundred and fifty acres of land, more or less, situated at the northern extremity of the peninsula of San Francisco, and the appeal is from a judgment rendered in favor of the defendant on demurrer to the complaint. It is alleged in the complaint that the premises in dispute were below ordinary high-water mark at the date of the purchase from ...
Views: 0
The plaintiffs were husband and wife, and brought this action to quiet their title to a lot of land in the city of San Francisco. The lot fronts on Perry street, having a width of twenty-five feet and a depth of eighty feet, and is claimed by the plaintiffs as their homestead. In January and February, 1883, there were two houses on the lot, one on the front and the other on the rear part of it, an...
Views: 0
As stated by the attorney general upon the argument, the evidence upon which a conviction was had in this case is very weak, although there is sufficient to prevent this court from setting aside the verdict. In view of the testimony in the ease, however, we think that the affidavits filed in support of the motion for a new trial on the ground of newly discovered evidence were sufficient to entitle...
Views: 5
The application of Ollie Hutchings to be discharged from custody on a writ of habeas corpus having been heretofore argued, submitted, and taken under advisement by the court, and now, at this day, the court being advised in the premises, it is ordered and adjudged that the application of petitioner be, and the same is hereby, denied, and that she be remanded....
Views: 0
Ejectment. The plaintiff claims through a United States patent issued to the Central Pacific Railroad Company, as successor in interest of the Western Pacific Railroad Company, under the act of July 1, 1862, and the amendatory acts. The defendant was in possession at the commencement of the action, claiming that the land was public land, and that he had complied with the pre-emption laws. .The cou...
Views: 2
This is an action to recover the value of certain wheat and hay claimed to be the property of Farnum, and alleged to have been converted to his own use by Hefner. The plaintiff recovered judgment for the value of the wheat. A motion for a new trial was made and denied, and from the order made in the premises an appeal has been taken. The facts of the case are that on October 15, 1884, the plaintif...
Views: 0
This is an application for a writ of mandamus, requiring respondent to substitute M. C. Baum as attorney for plaintiff in case of Wilson et al. v. Tobin et al. The alternative writ was issued by the late chief justice on the seventh day of September, 1886, returnable before Department 2 of this court, September 10, 1886. We find no evidence of service on respondent in the record, and he has, so fa...
Views: 0
Appeal from a judgment setting aside a homestead under the insolvent law. The homestead set apart consisted of lots 4 and 5, in block 39, of the town of Chico. These two lots adjoined each other. Upon lot 5 was the dwelling-house, and upon lot 4 were certain out-buildings and a blacksmith-shop. The two lots and buildings were together under the value of five thousand dollars. It is conceded that t...
Views: 2
This is an action to establish and enforce a trust. It appears that the plaintiff has been divorced from her husband; and being largely in debt, and her property mortgaged, desired to effect some compromise with her creditors whereby she might retain for herself some part of her estate. With that end in view, and acting in perfect good faith, she made to her son, David Mallagh, a deed of the prope...
Views: 1
The appeal is from an order granting plaintiff’s motion for a new trial. No briefs have been filed. *842There is nothing to show upon what grounds the court below granted the motion. We do not feel called upon to search the record for the purpose of determining whether the court erred. We presume that a new trial was properly ordered. Order affirmed....
Views: 1
There being no appearance on the part of the appellant, and no points or authorities filed on his behalf, the judgment and order appealed from should be affirmed. We concur: Belcher, C. C.; Hayne, C. For the reasons given in the foregoing opinion the judgment and order appealed from are affirmed....
Views: 0
The information filed against the defendant charged him with practicing medicine at a time when he had not obtained a certificate authorizing him to do so, as required by the “Act to regulate the practice of medicine in the state of California” (DBering’s Penal Code, pages 625-629). The defendant demurred to the information, and his demurrer was overruled. We see no error in this ruling. The infor...
Views: 5
The court did not abuse its discretion in granting the motion to set aside the default and judgment. Order affirmed....
Views: 1
I think the accusation should be dismissed. As to the first specification, the charge as made has not been established by evidence which satisfies my judgment. It does appear, however, that Gumpel was employed by the defendant in the case of Sharon v. Sharon to examine the alleged marriage contract, wdth the expectation that he would be called as a witness if his opinion was favorable. After the e...
Views: 1
Appeal from the judgment. The only point made is that there was no finding upon the issue as to ouster. It is found that plaintiff was not at any time the owner of the premises, or entitled to the possession thereof or any part of the same, “nor did defendant, during any of said time, wrongfully or unlawfully enter upon or oust the plaintiff therefrom, nor then nor now wrongfully withhold the same...
Views: 5
This is an appeal from an order denying a motion to set aside a decree of final discharge in insolvency. The motion was based upon the inadvertence, surprise, excusable neglect, etc., of the appellant. The disposition of motions of this kind rests largely in the discretion of the nisi prius court; and in this ease we see no such abuse of discretion as would warrant us in disturbing the ruling of t...
Views: 1
The above-entitled cause having been ordered submitted on briefs to be filed within thirty days from February 14, 1888, and the time having expired, and no briefs having been filed, it is ordered the judgment appealed from be affirmed....
Views: 1
The petitioner, being restrained of her liberty, sues out a writ of habeas corpus, praying to be discharged upon the ground that the judgment under which the proceedings were had which resulted in her imprisonment for contempt had been discharged by subsequent proceedings under the insolvent laws of this state. The superior court had jurisdiction to hear and determine this question, and, it would ...
Views: 0
The showing made is not sufficient to justify the setting aside of the judgment of affirmance herein, and the motion is denied. So ordered....
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This appeal is taken by the plaintiff from the judgment, which was in his favor; and the point is made that a portion of one finding is not sustained by the evidence. The judgment must be affirmed, so far as this appeal is concerned—First, because, if we can take the facts stated in the bill of exceptions as the evidence, it fully sustains the finding; and, second, waiving the objections that the ...
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In 1882, plaintiff had a judgment against the defendant Huff, and also held a note given by him, secured by a mortgage. He threatened to foreclose the mortgage, and finally agreed with Huff that Huff should convey to plaintiff the mortgaged premises, in consideration whereof the plaintiff would release Pluff from all the indebtedness. The agreement was reduced to writing, and is signed by Huff onl...
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This is an action for work and labor performed by the plaintiff as a painter for the defendant. Upon a cross-complaint the court below rendered judgment for the defendant, which, upon motion being made for a new trial, was modified in favor of the plaintiff to the extent of lessening the sum of money for which the original judgment was given, and, the defendant agreeing to the reduction thus made,...
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The motions of respondent herein to dismiss the appeals of the appellants, and to advance the hearing of the cause, and to direct the court below to issue an execution or order of sale are hereby denied....
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This is an appeal from a judgment dismissing a cause for the want of prosecution. From the affidavits in the transcript, which are mutually agreed, by the joint certificate of counsel on both sides, to have been those used on the hearing of the notice, it is apparent that the cause was tried before Judge Allen, but that no findings were ever waived or filed; that after some delay the plaintiff, ag...
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The contention of appellant in this ease is that the evidence is insufficient to justify the decision. We find, on an examination of the record, that the evidence is conflicting on the material points, and therefore the judgment and order must be affirmed. So ordered....
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We have examined the petition on this application for a writ of review, and can find no reason why the writ should issue. The application is therefore denied. Ordered accordingly....
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This action was brought to recover a sum of money alleged to be due the plaintiff from the defendant. The court below gave judgment in favor of the defendant, and from that and an order denying a new trial the plaintiff has appealed. In his statement, on motion for a new trial, he specifies particulars in which the evidence is alleged to be insufficient to support findings 1 and 2 of the decision;...
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On August 24, 1885, Mrs. Cecelia Bowers, wife of defendant, Dr. Bowers, became very ill with what appeared to he a bilious colic. On the following day, and later, physicians were called in, and, after making a diagnosis of the case, all pronounced it to be “abscess of the liver.” She was treated accordingly by the attendant physicians, but continued to suffer great pain in the right side, and to v...
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This is an action brought to recover a sum of money for the alleged services, as an attorney at law, rendered by the plaintiff’s intestate to the defendant’s intestate. The complaint was demurred to, and the demurrer sustained. Thereupon, the plaintiff declining to amend his pleading, judgment was given in favor of the defendant, from which this appeal is prosecuted. The fourth clause of the compl...
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