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All Reporters → cal-unrep → Volume 5

Opinions in cal-unrep Volume 5

The plaintiff brought two actions against the defendant on alleged causes of action assigned to him by James McCoy (numbered in the superior court, respectively, 41,597 and 41,598), which, by stipulation of the parties, were consolidated and tried together as one action. No. 41,598 was an action to enforce specific performance of a written contract between defendant and McCoy, whereby the former, ...
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This is an action to recover $800 and interest paid by the assignor of plaintiff to the defendant upon a contract for the purchase of real estate from said defendant by plaintiff’s assignor, and which contract was alleged to have been rescinded by said assignor by reason of a breach thereof by defendant. Plaintiff had judgment for $871 and costs. Defendant moved for a new trial, which was granted....
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The order heretofore made, denying the motion to dismiss three certain appeals of Mary S. Doughty and others, is hereby vacated; for, upon further examination of the papers and records, it appears that notice of the first appeal—that from the decree of distribution—was not served upon all of the parties in interest, for that it was not served upon P. E. Whitney, Esq., representing William Bacon an...
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The order heretofore made, denying the motion to dismiss three certain appeals of Mary S. Doughty and others, is hereby vacated; for, upon further examination of the papers and records, it appears that notice of the first appeal—that from the decree of distribution—was not served upon all of the parties in interest, for that it was not served upon P. E. Whitney, Esq., representing William Bacon an...
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The executor of the above estate filed his final account with a petition for settlement and for a distribution of the estate, December 12, 1892. He reported that he had in his hands, after payment of debts and expenses, $1,855.41, from which he asked to be allowed attorney’s fees and accruing costs, and prayed that the balance be distributed to the parties entitled thereto; that the testator left ...
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This is an action by the Bank of Ukiah (a corporation) to foreclose two mortgages executed by E. S. Gibson, to secure the payment of a promissory note made by him to said bank. One of the mortgages was upon certain real property, and the other a chattel mortgage upon three thousand five hundred head of sheep, more or less, and one hundred head of neat cattle, more or less, upon a certain ranch the...
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This is an action to foreclose a mechanic’s lien. The defendant Shuey is the lessee of the land upon which the building is situated, and his codefendant is the owner thereof. The contractor is not made a party to the action. The plaintiff is a carpenter who was hired by the contractor, and he subsequently filed his notice of lien, wherein he stated that he was “to work on the building or structure...
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The plaintiffs brought this action to obtain a perpetual injunction restraining the enforcement of a deficiency judgment entered against them in a suit to foreclose a mortgage. The facts stated in the complaint are in substance as follows: On or about December 30, 1887, the plaintiffs, Ella M. Heim and Julius F. H. Heim, her husband, executed to the defendant their promissory note, bearing interes...
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This action is in the nature of a creditors’ bill to subject property in the possession of the defendant California World Publishing Company to the payment of a judgment recovered by the plaintiff against the defendant World Publishing Company. The court below found the facts, and gave judgment against the plaintiff, from which, and from an order denying his motion for a new trial, he appeals. The...
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This action was brought by Haines to recover from Stilwell $6,293.65, with interest. The cause of action was single, but was stated in different forms in the complaint: First, for money loaned; second, for money had and received; and the third count set out a contract in writing made March 30, 1891, whereby defendant agreed to sell and plaintiff agreed to buy one-half of the capital stock of the S...
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A demurrer to the amended complaint was sustained, and, plaintiff declining to further amend, judgment was rendered for defendant, from which plaintiff appeals. The complaint is substantially as follows: Defendant is the uncle of plaintiff, and ever since the latter’s boyhood plaintiff was under the control and direction of defendant, and in his employ, and a part of the time resided with him. Def...
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Richard Cunningham was the owner of certain premises known as the “San Bruno Hotel,” and leased the same to M. J. McBride, the rent to be paid to his wife, Mary Cunningham, since deceased.. Norton, the appellant here, executed a written guaranty that he would pay to Richard Cunningham all rents that might remain due and unpaid, “according to the terms of the written lease of the San Bruno Hotel”; ...
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This action was brought to obtain an injunction restraining the defendants, who were the supervisors of Santa Cruz county, from filling up, or causing, to be filled up, a ditch or watercourse along the- side of the Carlton road, in that county. It is alleged in the complaint that the plaintiff is the owner of a tract of land bounded on the northeasterly side by the “Carlton Road,” so called, and t...
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Action on a promissory note for the sum of $2,000, besides interest, dated April 1, 1893, payable three months after date, executed by appellant in favor of the respondent.d The complaint was filed October 12, 1893, and contained, among other 'allegations, an averment to the effect that no part of the principal sum or the interest mentioned in the note had been paid. This allegation was denied in ...
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This is an action to compel the defendant to account for and pay to plaintiff funds alleged to be held by him in trust for the plaintiff, Rebecca Spencer, who departed this life during the pendency of the action, whereupon John C. Spencer, administrator of her estate, was substituted as plaintiff herein. Plaintiff had judgment for $1,071.85 and interest from May 1, 1870, amounting in the aggregate...
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This action was commenced August 29, 1891, by Peter J. Christensen against H. P. Jessen, to recover damages alleged' to have been sustained by the plaintiff by reason of fraudulent misrepresentations made to him by defendant. All the issues, except that arising upon defendant’s plea of the statute of limitations, were submitted to a jury, which found a verdict in favor of the plaintiff for $2,000 ...
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Appeal from the judgment. The action is to compel the payment of moneys alleged to be due under contracts for the purchase of lands, and, in default of payment, to foreclose defendant’s rights under the contracts, and for general relief. The contracts are many, but they are alike in terms, and one will serve as a type of all. Plaintiff agreed to sell, and defendant to buy, a certain piece of land....
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The prisoner is in custody of the sheriff of San Francisco under an order holding him to answer on a charge of murder, and asks to be released upon the ground that he was committed without reasonable or probable cause. With his return to the writ of habeas corpus the sheriff has submitted a transcript of the evidence adduced at the examination of the prisoner before the committing magistrate, whic...
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One Nettie Gilman commenced an action in the superior court of the city and county of San Francisco against Gilbert L. Curtiss, the plaintiff in this action, and obtained a temporary injunction restraining him from doing certain acts during the pendency of said action. By an order of the court the plaintiff was required to file an undertaking in the sum of $5,000 to secure the payment of such dama...
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This is an action in claim and delivery to recover the possession from defendant of thirteen horses, one four-horse wagon, and one set of double harness, or their value, alleged to be $2,000. The amended answer contains two separate defenses. The first denies the ownership or possession of the plaintiff of the property described in the complaint, or any part thereof, or that it is of any value exc...
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The petitioner has been held to answer on a charge of perjury, and asks to be discharged, upon the ground, among others, that he was committed without reasonable or probable cause. The evidence adduced before the committing magistrate is, in my opinion, wholly insufficient to sustain the charge as laid in. the infonnation, or any charge. It seems that one Paulsell was on trial in the superior cour...
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On the thirtieth day of December, 1892, Henrietta R. Cooke sold" and conveyed to the defendant J. N. Scoggins a lot of land in the town of Colusa. The purchase price of the lot was $3,000, and of this sum the defendant at once paid $1,200, by assuming and discharging an indebtedness of Mrs. Cooke in that amount, which was secured by a mortgage on the property. On the 26th of February, 1893, Mrs. C...
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Plaintiff sues as assignee of Harding & Forbes, attorneys at law, to recover $1,700 for professional services alleged to have been performed by the latter for the San Francisco & San Mateo Eailway Company and the S. S. Construction Company (corporations), at their instance and request, and for which, it is alleged, the former company and defendant Joost promised to pay said sum of $1,700. At the c...
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This action is brought by the plaintiff, as the receiver of one E. M. Brickey, to recover damages in the sum of $5,500 for the conversion by defendants of a stock of drugs, claimed to have belonged to said E. M. Brickey, and to which plaintiff, as receiver, claimed to be entitled. The cause was tried by the court without a jury, and judgment rendered in favor of plaintiff for $915 damages, from wh...
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This is an action to quiet the title of the infant plaintiff to a forty acre tract of land, described as the NW. of the NW. % °f section 12, in township No. 14 S., of range No. 2 W., San Bernardino M., situate in the county of San Diego, state of California. The cause was tried by the court without a jury, and judgment entered in favor of defendant, from which judgment, and from an order denying h...
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Cornelius Jensen died December 12, 1886, seised of the lands described in the complaint, and plaintiff brings this action, as his executrix, to quiet the title of the estate thereto. The only controversy between the parties relates to an alleged water right and right of way for a ditch claimed by defendants over said lands. The court found in favor of defendants, establishing their right to the wa...
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In the action of Painter v. Painter, for the dissolution of a partnership, pending in the superior court of the city and county of San Francisco, a receiver had been appointed to take charge of the assets- of the firm, and an order was made by the court, directing the petitioner herein to deliver to the receiver certain contracts belonging to the firm, which were in its possession; and upon his re...
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The plaintiff is a corporation engaged in the business of banking. In 1887 it acquired the title to, and erected a two-story brick building on, a lot in the town of Escondido, county of San Diego. The defendants owned the two adjoining lots on the west, and shortly after the completion of the bank building they commenced the erection of a two-story brick building thereon, and completed the same ea...
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Plaintiff was road overseer of road district No. 6, Colusa county. As such road overseer, during the fiscal year 1890-91, he individually performed work upon the roads of that district and employed others to do the same, and, at his instance and request, materials were furnished to be used, and which were used, in the repair of the roads of such district. Claims in proper form for the amounts due ...
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There was a street in the city of Los Angeles called “Negro Alley.” Plaintiff owned land which, as she *102claimed, abutted on the westerly side of such alley, and defendant owned land adjacent to the easterly side thereof, opposite to plaintiff’s land. In April, 1889, the city council of Los Angeles vacated said alley as a street, and about the same time laid out a new street called “Los Angeles ...
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The Artesian Land and Water Company, a corporation, issued twenty bonds for $1,000 each, dated June 1, 1888, and secured by a mortgage on its corporate property. The defendant, Cook, became the owner of two hundred and seventy shares of the capital stock of said company on the twentieth day of June, 1888, and he continued to be the owner thereof until the twentieth day of November, 1888. The said ...
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This is an action for unlawful detainer, and the facts which need be noticed are as follows: On March 23, 1893, plaintiff leased to defendant fifteen acres of land for a term commencing at the date of the lease and ending January 1, 1894. Covering about one-half of the leased land was an orchard of orange and other fruit trees. The lease contained a covenant on the part of defendant “to keep, the ...
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Jesse Hunter, the appellant, brings this action to annul a marriage entered into with the defendant at Los Angeles, California, on the third day of July, 1862, upon the ground that at the time of the alleged marriage of plaintiff and defendant the latter had another husband living, viz.-, one Joseph Milam, from whom she was not divorced, and-*108which said marriage between said defendant and the s...
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Action to foreclose two mortgages on the same lot of land, each to secure a distinct promissory note. The rate of interest on each note was fifteen per cent per annum from date of note until payment,, payable and compounded semi-annually, and each note contained the following: “And I further agree that, in the event of suit being brought against me, then there shall be added to any judgment agains...
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The defendant John C. Fisher on April 11, 1891, made and delivered to the defendant Mary C. Morse his promissory note payable one year after date, and on the same day executed to her a mortgage to secure the same. On July 17, 1891, said Mary C. Morse indorsed said note in blank to the plaintiff, and assigned to it said mortgage. This action was brought against Fisher and the appellants Mary C. Mor...
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Action upon a street assessment. The testimony on behalf of the defendants showed that the certificate of the city and county surveyor, which was recorded in the office of the superintendent of streets, was not made by that officer, but that his name was signed thereto by a clerk in his employ, without any specific directions therefor. The testimony upon this point is almost identical with that gi...
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Plaintiff and defendant intermarried in the state of Ohio in 1859, and have ever since been, and now are, husband and wife. In 1873 they came to this state to live, and settled at Riverside. In November, 1878, Hattie L. Traver conveyed to defendant, by a quitclaim deed, twenty *120acres of land, situate in what is now the county of Riverside; and in May, 1883, she again conveyed to defendant the s...
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The defendant was convicted of murder, and appeals from the judgment and an order denying him a new trial. It was clearly proved that on June 15, 1893, Mishael Tovey, a messenger for Wells, Fargo & Co., while seated by the side of the driver on a stage going from lone to Jackson, in Amador county, was shot and killed by a man who stood behind and was partly concealed by a buckeye tree growing with...
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The special administrator of the estate of the deceased has appealed from an order of the superior court directing him to pay to the widow of the deceased the sum of $50 per month, as a family allowance. The order was made after a citation to the appellant and a hearing thereon before the court; but the appeal is presented here without any bill of exceptions or other showing of the matters which w...
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Action of ejectment to recover possession of the north half of a tract of land situate in the county of San Diego, described in the complaint by the name “Eancho Buena Vista,” and not otherwise. The complaint is in the most general form, alleging plaintiff’s ownership and possession of the north half of said tract, and that defendants ejected her therefrom, and withhold from her the possession the...
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Action for divorce on the grounds of desertion and willful neglect to provide for plaintiff the common necessaries of life, in which the judgment was in favor of plaintiff, dissolving the bonds of matrimony. Defendant has appealed from the judgment and from an order denying his motion for a new trial. The alleged defenses to the action were: First, a general denial of each and every allegation of ...
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When this case was here upon the former appeal (101 Cal. 206, 35 Pac. 643, 646) it appeared from the findings that “said bridge and all approaches thereto are located within the right of way in said deed described, and constitute part of the premises thereby granted to the California Central Railway Company”; and it was held that, by virtue of the conveyance from the plaintiff to the predecessor o...
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It is alleged in the complaint that, while the defendant was acting as the attorney and confidential agent of the plaintiff, he purchased a promissory note and mortgage that had been executed by her to one Wheeler; that, by reason of his position as her attorney, he received information that the note could be purchased for less than its face, and that thereupon he did so purchase it, in violation ...
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The plaintiff brought this action to recover the possession or value of three hundred head of sheep. The complaint was filed September 20, 1893, and it avers that on the eighth day of that month plaintiff was the owner and entitled to the possession of said sheep; that on the said eighth day of September defendant, without plaintiff’s consent, and wrongfully, came into possession of said property,...
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This action was brought to recover the sum of $452.70, alleged to be due from the defendants, who are husband and wife, to the plaintiff, for groceries, drygoods, and general merchandise sold and delivered by him to them at their special instance and request. Defendant William M. Hughes answered, admitting the indebtedness as against himself, and consenting that judgment be entered against him for...
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Petitioner was charged by information with the crime of burglary. A prior conviction for a like offense was also alleged against him. He pleaded guilty, and the judgment under which he is held recites that “whereas the defendant, John Woods, has been convicted of the crime of burglary in the first degree and a prior conviction of felony, it is ordered that he be imprisoned in the state prison for ...
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This action is brought to recover $400, for so much money alleged to have been had and received by the defendants for the use of plaintiff. Plaintiff had judgment for $350, interest, and costs, from which judgment, and from an order denying their motion for a new trial, defendants appeal. On the second day of September, 1892, W. N. Snow and Mrs. W. N. Snow, his wife, as parties of the first part, ...
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On September 12, 1892, the defendant F. J. Owens entered into a contract with the superintendent of streets of the city of Stockton to pave a portion of Channel street in that city with bitumen and basalt blocks. On September 22, 1892, Owens assigned his said contract to the defendants Girvin, Baldwin and Eyre, and the assignment appeared on its face to be absolute. The work under the contract was...
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This is an action to quiet the title of plaintiff to an undivided third interest in and to lots 8, 9, and 10, in block 40, situate in the town of Madera, county of Madera, state of California. The cause was tried before a jury, and written answers returned to certain special issues and interrogatories propounded to them, which the court approved and adopted, and, in addition thereto, made and file...
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The defendant was charged with the crime of forgery, and on his arraignment pleaded guilty' as charged. That plea was subsequently withdrawn, and a plea of not guilty entered. The case was tried, and the only defense interposed was that of insanity. The verdict was: “We, the jury, find the defendant guilty as charged, and so say we all.” A motion for new trial was made and denied, and thereupon ju...
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The defendants, Edward Hickman and Hepsabeth Hickman, his wife, executed their promissory note to George H. Castle, February 23, 1889, for the sum of *160$4,343, and on the 22d of April, 1890, for the purpose of securing the same, assigned to him a certain policy of insurance that had been issued by the Equitable Life Assurance Society, payable to Edward Hickman. In January, 1891, Edward Hickman w...
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This is an action to recover from the appellant, Coleman, a certain amount of money, the same being an indebtedness from Peyser & Bro. to plaintiffs, and assumed by Coleman. The appeal is by Coleman from the judgment, and also from the order denying his motion for a new trial. It is insisted that the evidence fails to support the findings as to the assumption by Coleman of the aforesaid indebtedne...
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A motion has been made to dismiss “the appeal” herein upon the ground that it has not been perfected in accordance with the provisions of the code. The transcript upon record contains a notice of two appeals, one from the judgment and another from the order denying a new trial. As the sufficiency of each of these appeals does not depend upon the same considerations, it is uncertain to which appeal...
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Action for the conversion of seventeen hundred and seventy sacks of wheat. The ease was tried by the court, and findings and judgment were against the defendant, who appeals from the judgment upon the judgment-roll alone The findings show the following facts: Plaintiff, a corporation, was the owner of certain lands in Stanislaus county, and orally leased the same to one Dallas for the term of one ...
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A creditor of the estate, whose claim had been allowed and approved by the court, filed several exceptions to the first annual account of the administrator. Several of these exceptions were confessed by the administrator, and after a hearing the court made the following record (omitting formal preliminary matter): “Now, after having considered said account and report, the objections to the same, a...
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Action against the defendant, an indorser, on three promissory notes. The complaint was unverified, and the answer was a general denial, and that the notes *172had been theretofore transferred to one Cerini, who brought an action to recover thereon, which was dismissed; and the judgment in that action is pleaded in bar of this. The court made general findings that all the allegations of the compla...
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Action to recover from defendant the reasonable value of work and labor alleged to have been performed by plaintiff for and at the request of defendant in cultivating a tract of defendant’s land, on which was a vineyard, during the years A. D. 1891 and 1892, and in constructing upon said land a dwelling-house and a barn, and in manufacturing boxes and trays in which to cure and store raisins produ...
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After full consideration of this cause in bank we are satisfied with the opinion delivered and the conclusion reached in department: 4 Cal. Unrep. 988, 39 Pac. 799. The petition for a rehearing in bank is mainly concerned with the proposition that Mrs. Austin, after her sale to Pulschen, conveyed the land to Rosencrantz, and thereby destroyed *177her vendor’s lien. But there is no finding that she...
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The defendant was charged with embezzlement in converting to his own use a bank check for $1,075, the property of one Mrs. Anderson. He appeals from the judgment and an order denying him a new trial. But one point need be noticed. It is contended that the evidence does not support the verdict, and it is clear that it does not. One Taylor desired to procure a loan of $2,200, to be secured by a mort...
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Appeal from an order denying a motion to change the place of trial. The action was commenced in the county of Los Angeles, and a motion was made by the defendant to transfer the cause for trial to the county of Sonoma. Upon the hearing of the motion there was read to the court an affidavit in behalf of the defendant showing that by its articles of incorporation the county of Sonoma is its principa...
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Messrs. J. K. and T. C. Law, brothers, were attorneys for plaintiff in this action. The former was elected judge of the superior court of Merced county, where the action was and is yet pending, and entered upon the discharge of the duties of that office; his brother remained an attorney of record for the plaintiff. This being the situation of the case, defendants notified plaintiff that they would...
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The plaintiff brought this action to recover the sum of $376.65, balance alleged to be due for peaches sold and delivered by him to defendants in 1892, and also to recover the further sum of $332.95, balance alleged to be due for peaches sold and delivered by George and P. B. Thresher to defendants in 1892, and by the sellers assigned to plaintiff. The defendants, by their answer, admit the purcha...
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The plaintiff brought this action on a promissory note, dated August 1, 1885, and payable one day after date, and the defendant pleaded as a defense thereto that there was no consideration for the execution of the note by him. The note was originally made by Thomas Hildreth, the father of defendant, and some months later was signed by defendant. The case was tried and the findings and judgment wer...
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The plaintiff brought this action to recover damages for injuries to his person alleged to have been caused by the negligence of defendant’s servants and employees, in consequence of which he was thrown from one of its moving cars. The answer denied any liability on the part of defendant, and alleged that the injuries sustained by plaintiff “were occasioned by the negligence of said plaintiff in j...
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Appeal by ■ plaintiffs from a judgment in favor of defendants and from an order denying plaintiffs’ motion for a new trial. This is the third appeal in this cause. To the first complaint a demurrer was filed, and sustained by the court, and judgment entered for defendants. On appeal the judgment was reversed (72 Cal. 544, 14 Pac. 204), and the cause remanded for trial. On November 17, 1887, the ca...
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Action by an assignee in insolvency to recover possession of goods and chattels as the property of the insolvents. It is mainly urged that the findings of the trial court that the insolvents were entitled, at the date of the adjudication of insolvency, to the possession of the property, and that defendant had no right thereto, is not supported by the evidence; but we are constrained to hold agains...
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This is an appeal by defendants from the judgment and an order denying a new trial in a case wherein plaintiff was awarded damages for a withdrawal of lateral support, and consequent injury to her property; and the single question presented is whether the evidence supports the findings, the contention being that it does not. It would be profitless to state the evidence, or advert specially to the ...
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This suit was brought by appellants to enjoin the defendant from removing certain water-pipes and destroying a certain reservoir situate upon the lands of appellants, and to adjudge that respondent has no right or claim to said pipes and reservoir, and to quiet plaintiffs’ title thereto. The answer of defendant alleged that in 1890 one Samuel Gruber was the owner in fee and in the possession of th...
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Plaintiff brought this action to recover from the defendant the sum of $1,599, with interest thereon from June 1, 1892. The complaint contains three counts. In the first count it is alleged that the defendant is indebted to the plaintiff in the sum of $434 for cutting, at its special instance and request, two hundred and fifty cords of pine wood at one dollar per cord, and two hundred and thirty c...
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This action was commenced in the superior court of Yolo county, and was based upon a written contract executed by the plaintiffs, as parties of the second part, and by the defendant, as party of the first part. The contract was dated May 28, 1892, and the material parts of it read as follows: “Whereas, a conveyance has this day been made by said parties of the second part to said party of the firs...
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This action was instituted to foreclose twelve liens for labor and materials furnished and used in the construction of a house for the defendant Riley, the several claims, including costs of recording, aggregating in amount the sum of $1,728.86. One of the said liens was for materials furnished by the plaintiff, and the others were duly assigned to the plaintiff. One Duncan also commenced an actio...
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This action is brought to recover damages from the defendant, a corporation, and a carrier of passengers by railroad, for personal injuries sustained by the infant plaintiff, while boarding defendant’s ear, at Fruitvale, in the county of Alameda. At the trial, and upon the close of the evidence on the part of plaintiff, counsel for defendant moved for a nonsuit, upon the ground that the evidence o...
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This is the same case as that already decided on the appeal of Woodward (Krouse v. Woodward, 110 Cal. 638, 42 Pac. 1084). The plaintiff has also appealed from that part of the judgment which denies him relief against Alexander and against the defendant corporation. The judgment is clearly right. By the indorsed assignment he made Woodward the apparent owner of the stock; and, when the court found ...
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Appellant was convicted of the crime of rape and sentenced to imprisonment at Folsom for the term of nineteen years; and he now appeals from said judgment, and from an order denying his motion for a new trial. The offense is charged to have been committed upon Felis Aldama, a girl of ten years of age, the granddaughter of appellant’s wife. Appellant complains of numerous rulings of the court below...
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Action to recover an endowment benefit of $2,000 alleged to be due the plaintiff from the defendant. The cause was tried by a jury, whose verdict was in favor of plaintiff for the sum demanded, and the judgment of the court was in accordance with the verdict. The defendant appealed from the judgment and from an order denying its motion for a new trial. The pleadings and evidence justified the jury...
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Defendant appealed from the judgment and an order denying a new trial. The appeal from the order was, oh motion of respondent, dismissed, for want of an undertaking to support it. The questions subject to our review, therefore, are such only as arise upon the judgment-roll. No such questions are presented in appellant’s briefs, the points there discussed being such alone as would arise on an appea...
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Action to recover damages for an alleged malicious prosecution. A demurrer to the complaint on the grounds that it does not state a cause of action, that in specified particulars it is uncertain, and that two causes of action are improperly joined therein, was sustained by the trial court; and thereupon, plaintiff declining to amend his complaint, judgment passed for defendants. Plaintiff appeals ...
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The plaintiffs were architects, doing business as partners under the firm name of Smith & Freeman. They brought this action in July, 1893, to recover the balance alleged to be due them for services performed at the request of the defendant, in 1891, in drawing plans and specifications, and procuring bids thereon, for a hotel, to be called “Hotel Edison, ’ ’ and to be situated at the corner of Sutt...
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This is an action by Peter Johnson to recover damages for personal injuries received by plaintiff by being knocked down and run over by a horse and wagon driven by a servant of defendant, upon a public street in the city of Los Angeles, California. Plaintiff had a verdict and judgment for $500, from which judgment, and from an order denying his motion for a new trial, defendant appeals. Appellant ...
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This action was brought to recover the sum of $482.88, alleged to be due from defendants to plaintiff for setting granite curbs, and grading and paving the street, in front of a certain lot in the city of San Francisco, and to foreclose a lien on the lot for the said sum, together with the cost of verifying and filing the claim of lien and a reasonable attorney’s fee. The defendants, James M. and ...
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Action to quiet the alleged title of plaintiff to an undivided two-fortieths part of a tract of land containing about one hundred and thirty acres, situate in the county of Los Angeles. The defendant, for want of information or belief, denied plaintiff’s alleged title, and asserted title adverse to that claimed by plaintiff. The court below, without the intervention of a jury, found the facts and ...
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The plaintiff was the owner of a tract of land in San Luis Obispo county, which was bounded on its westerly side for a distance of abont two thousand four hundred feet by a natural stream of water, known as 'Sycamore” or “Los Osos” creek. He resided on this land with his family, his dwelling-house being about fifteen hundred feet distant from the creek, and was engaged in farming *274the same, and...
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This action is brought to abate an embankment constructed by defendant, whereby the surface water is alleged to be prevented from flowing from and over a private right of way owned and possessed by him, the said plaintiff, and to enjoin defendant from maintaining such embankment. Plaintiff had a decree as prayed for, and this appeal is from the judgment, and from an order denying defendant’s motio...
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Action upon a promissory note. Judgment went for plaintiff, and defendant appeals therefrom upon the judgment-roll. The single point made in support *282of the appeal is that the lower court erred in overruling a general demurrer to the complaint, the contention being that there is no averment in the complaint of a consideration for the execution of the note, and that hence there is a failure to s...
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Appeal from judgment and from an order refusing a new trial. One Wilkins owned land at Azusa; Goldsberry, a tract at Clearwater. They agreed to exchange lands. Goldsberry was to convey his tract clear of encumbrance and give $2,000 difference—the $2,000 to be secured by a mortgage on the Azusa property which he was to get from Wilkins. It was found that his land was mortgaged to one Tring for $830...
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This is an action for damages for personal injuries. The defendant appeals from the judgment and order denying its motion for a new trial, and by the record the sole question presents itself, Was the evidence sufficient to support the verdict of the jury? The action is brought by the guardian of certain minor children. The father of these minors was a passenger upon a train belonging to defendant,...
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The .plaintiff brought this action to recover from the defendant Adams for certain labor and *287materials furnished by him, and to have the same declared a lien upon a certain building belonging to the defendant Dawson. The plaintiff, as a subcontractor, had furnished the materials and labor to Adams, who had contracted with Dawson for the construction of the building, and the materials and labor...
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This action is brought to restrain the defendants from constructing or maintaining a railroad track, and to compel them to remove all tracks and lines of track from a certain strip of land one hundred feet in width, and commonly known as “Park avenue,” situate and being in the county of San Bernardino, and owned, possessed and appropriated by the plaintiff for the purposes of a railroad; also, to ...
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Appeal from the judgment and from an order denying a new trial in an action by the respondent, as a prior appropriator, to enjoin the defendants from diverting water from Kings river so as to interfere with respondent’s *293appropriation; judgment being in favor of respondent, enjoining such diversion. 1. The - demurrer of the defendant Alta Irrigation District to the amended or supplemental compl...
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Defendant was convicted of grand larceny, and now appeals, insisting that the evidence is insufficient to support the verdict. The jury passed upon its sufficiency, and the trial court also did, when it denied a motion for a new trial. Under these circumstances, this court will not hold the evidence insufficient to support the verdict, unless defendant’s guilt has no support therein. In this case ...
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Defendant was convicted of grand larceny, and now appeals, insisting that the evidence is insufficient to support the verdict. The jury passed upon its sufficiency, and the trial court also did, when it denied a motion for a new trial. Under these circumstances, this court will not hold the evidence insufficient to support the verdict, unless defendant’s guilt has no support therein. In this case ...
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This action was brought against M. P. Farnham and J. Kendrick upon two promissory notes, each dated August 19, 1801, payable one day after date, one for $2,000 and the other for $800, to the order of Eppinger & Co., upon which there was claimed to remain unpaid $1,119.04 and interest. Farnham, having been adjudged an insolvent debtor, did not answer, and the action proceeded against Kendrick alone...
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This is an appeal from an order of the superior court, made after final judgment, denying defendants’ motion to strike out plaintiff’s cost bill, amounting to only $65.45. The only ground of the motion was that the memorandum of the items of costs, though properly verified and filed with the clerk, was not served on the defendants within the time prescribed by section 1033 of the Code of Civil Pro...
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This is an appeal from an order of the superior court, made after final judgment, denying defendants’ motion to strike out plaintiff’s cost bill, amounting to only $65.45. The only ground of the motion was that the memorandum of the items of costs, though properly verified and filed with the clerk, was not served on the defendants within the time prescribed by section 1033 of the Code of Civil Pro...
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This is an appeal by a creditor from an order adjudicating one Thomas an insolvent debtor. It is insisted that the court had no jurisdiction to make the order of adjudication, by reason of a want of sufficient averment of facts in the petition of the insolvent. Insolvent act, section 2 (Append. Code Civ. Proc.), provides: “An insolvent debtor, owing debts exceeding in amount the sum of three hundr...
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In 1892, Mrs. L. M. Wagner was engaged in the jewelry business in the city of Los Angeles, the business being chiefly managed by her husband, J. B. Wagner. Her store was at No. 125 South Spring street, and in it she had been accustomed to keep a large stock of goods, consisting, among other things, of diamonds, watches, and jewelry. On September 28, 1892, she filed in the superior court of Los Ang...
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Action for divorce on the ground of adultery, in which the judgment was in favor of plaintiff. The defendant has appealed from the judgment and from an order denying her motion for a new trial. The case was tried by the court without a jury and findings were not waived. The only written findings of fact are those prefixed to the judgment, as follows: “And the court, being fully advised in the prem...
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This is an appeal by the defendant and the intervener from an order of the court below granting a new trial on the motion of plaintiff. The action is in claim and delivery to recover by the plaintiff, A. B. Salisbury, a stock of groceries, trade fixtures, horses, wagons, harness, etc., alleged to be of the value of $2,800. The defendant, John Burr, denied the ownership or possession of plaintiff, ...
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This is a special assumpsit upon a contract by which defendant agreed to convey certain land to the plaintiff. The first count of the complaint, which was filed September 24, 1894, avers, in substance, that on the twelfth day of December, 1887, in California, plaintiff and defendant entered into a written contract by the terms of which defendant agreed to sell to plaintiff lot 11 in block 358 of P...
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This is an action upon a bill of exchange, and the material facts of the case are as follows: On August 12, 1890, Livingston, Clarke & Co. drew the said bill of exchange on the Pacific Hardware Company, payable to their own order ninety days after date; and on the twenty-seventh day of that month the same was accepted by the drawee, “payable at office Sather Banking Company, San Francisco, Calif. ...
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During the year 1894, John G-. Ellis, the plaintiff, was a supervisor and ex-officio road commissioner for supervisor district No. 5 in Tulare county. As such road commissioner, he performed services in his district for payment of which he, in January, 1895, presented a claim to the board of supervisors of the county for allowance. The claim was properly itemized and verified, and was for one hund...
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This cause was tried by the court, and findings and judgment were for the defendant; and the plaintiff appeals from the judgment and an order denying its motion for a new trial. The plaintiff is a corporation, organized under the act of the legislature known as the “Wright act,” for the purpose of supplying water for irrigating the lands within the district so organized. The defendant is a corpora...
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Action to foreclose a mortgage executed by the defendant Henry E. Coleman, to secure his promissory note for the sum of $2,000, and interest at eight per cent per flTirmm, payable to the plaintiff (a corporation) eight years after date, but provided that, if default be made in the payment of any part of said interest as it became due and payable, then the principal and interest should immediately ...
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This is an action to recover damages for the conversion by defendant of certain sheep and hogs alleged to be the property of the. plaintiff. The defendant justifies the taking of the property upon the ground that he was sheriff of the county of Placer, and as such seized and sold the property under an execution against C. Quinn, whose property he alleged it was at the time of such seizure. On the ...
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This is an action brought by the appellant to recover from the respondent money paid under protest for Dupont street taxes, levied under authority of the act of March 23, 1876, entitled “An act to authorize the widening of Dupont street, in the city of San Francisco” (Stats. *3421875-76, p. 433). A demurrer was interposed to the complaint by defendant, which was sustained by the court; and, plaint...
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Defendant Nelson is a member of the board of supervisors of Butte county and ex-officio road commissioner in and for his supervisor district. Under the direction of said board, it is his duty to take charge of the highways in his district, keep them clear from obstructions and in good repair, and employ the help necessary for that purpose: Pol. Code, secs. 2641, 2645. Defendant Richardson is emplo...
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The plaintiff brought this action to recover damages for trespasses committed by defendants by entering on his land, and tearing down about thirty feet of his boundary line fence, and digging up the soil, and destroying the grass and vegetation growing thereon, and also to obtain an *349injunction restraining defendants from repeating the said trespasses, and from constructing, as they threatened ...
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Plaintiff resides at Sacramento, and grows fruit in that county. The defendants are commission merchants doing business at Chicago, Illinois. On October 9, 1889, plaintiff shipped to defendants 22,758 pounds of dried French prunes, and 3,937 pounds of soft-shell almonds, under the terms stated in the following contract: “Sacramento, Cal., October 9, 1889. “Earl Bros. Co., Chicago, Illinois. “Gentl...
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It is alleged in the complaint in this case that on the twenty-eighth day of September, 1892, plaintiff was the owner, in possession, and entitled to the possession, of certain described personal property, which was and is of the value of $13,000; that on said day the defendant wrongfully, and without her consent, took said property from the possession of plaintiff; that on the third day of Octobe...
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Action to recover for personal injuries. The defendant had judgment, and the plaintiff appeals from an order denying his motion for a new trial. The injury occurred September 30, 1894,.and the plaintiff was seventeen years of age in the May preceding. He resided with his father in Berkeley,, and came to the West Berkeley station, situate at the corner of Third and Delaware streets, to take the loc...
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This action was brought December 2, 1891, against the testator, Leland Stanford, to recover possession of a trotting mare commonly known as “Hinda Rose,” or for the recovery of $50,000, the value of said Hinda Rose, in case a delivery of said mare cannot be had, and $25,000 damages, etc. Defendant answered, denying the ownership of plaintiff; averred that about February, 1880, he purchased said Hi...
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This is an appeal from a judgment of nonsuit entered upon the conclusion of the hearing of plaintiff’s testimony. All of the evidence is presented by bill of exceptions. Upon the former appeal in this case (Burns v. Sennett, 99 Cal. 363, 33 Pac. 916), it was held that, under the evidence before the court, the duty of defendants was *371fulfilled when they furnished to the employees suitable materi...
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This is an action to recover damages for malicious prosecution. There was a verdict and judgment for $500 in favor of the plaintiff. Defendant moved for a new trial, which was granted. Plaintiff appeals from the order granting a new trial. The order appealed from states no ground for the decision, hut the motion was made upon the ground, among others, of the insufficiency of the evidence to justif...
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Mandamus against the defendant, as controller of the state of California, commanding him to draw his warrant in favor of the plaintiff upon the treasurer of said state for the sum of $166.66%, as salary due plaintiff from the said state for services as expert to and for the state board of examiners during the month of July, 1895. An alternative writ of mandate issued to defendant, who demurred to ...
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The facts of this ease, briefly stated, are as follows: In July, 1893, one Z. H. Martin sold and delivered to the defendant a certain quantity of hay, for which the agreed purchase price was $541.17. On or about July 15, 1893, defendant paid Martin, for and on account of the hay, the sum of $194.37, leaving a balance still due therefor of $346.80. On August 2,1893, Martin assigned and transferred ...
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The plaintiff was the road overseer of road district No. 6 of the county of Colusa, from January 1, *3821891, until May 12, 1891. Between March 31st and May 12th of that year, as such overseer, he performed work and expended moneys upon the roads in that district, and others, at his instance and request as such overseer, also performed work and furnished materials for the benefit of the roads in t...
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The action was for damages for personal injuries. At the conclusion of plaintiff’s evidence defendant moved for and was granted a nonsuit. Plaintiff pleaded that defendant operated its railroad upon a public highway in Alameda county, known as “Stanford street.” She averred that there was a culvert or drain crossing Stanford street, and extending under the tracks of defendant, which drain was secu...
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Ejectment for two and twelve hundredths acres of land. The pleadings were unverified. Plaintiffs alleged that they are the owners of the land described in the complaint, and that defendant excludes them from the possession thereof. By his answer defendant denied generally “each and every allegation in said complaint contained except as hereinafter stated.” He then expressly admitted himself to be ...
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The appellant, Mattie Morgan, wife of defendant Benjamin F. Morgan, being the owner of a lot in the town of Berkeley, County of Alameda, having a frontage of one hundred feet on Channing Way, and extending therefrom three hundred and four and one-half feet, entered into a written contract with defendants Higgins, Davidson & Co., by the terms of which the latter agreed to build two dwelling-houses ...
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This appeal is from a judgment in favor of the plaintiff against E. Righetti, one of the defendants, upon the judgment-roll. The only question upon this appeal is whether in an action against two as partners, upon an alleged partnership liability, a recovery may be had against one of the defendants; the court finding that the defendants were not partners, but that appellant is individually liable ...
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The only question involved in this appeal is whether plaintiff is entitled to recover commissions for the sale of a lot at Sacramento. Defendant placed with plaintiff, as broker, a certain lot for sale, to remain in his hands for one year, with the condition that “if a sale of said property shall be negotiated during that time by the said Chas. Quiggle, directly or indirectly, for the amount stipu...
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The only question involved in this appeal is whether plaintiff is entitled to recover commissions for the sale of a lot at Sacramento. Defendant placed with plaintiff, as broker, a certain lot for sale, to remain in his hands for one year, with the condition that “if a sale of said property shall be negotiated during that time by the said Chas. Quiggle, directly or indirectly, for the amount stipu...
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This is an action to recover on a street assessment for grading Union street from Larkin street to west line of Franklin street, in the city and county of San Francisco, under a contract made on the fourth day of October, 1877, with plaintiff’s assignor, J. S. Dyer. Plaintiff had judgment, and defendants appeal therefrom and from an order denying their motion for a new trial. The cause has been he...
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Action to recover $500 for work, labor and services performed by plaintiff for defendant, and for $353.35 as a balance due for money paid, laid out and expended by plaintiff for defendant, and to recover interest on said two several sums. Defendant denied his indebtedness to plaintiff, and, by way of cross-complaint, set out that plaintiff was indebted to him in the sum of $1,000, for so much mone...
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Action to recover $755 rent reserved in a lease of real estate situate and being in Oakland, Alameda county. Verdict and judgment for defendants. Plaintiff appeals from the judgment and from an order denying his motion for a new trial. Two points only are made for reversal: 1. That there is no evidence to justify the verdict of the jury. 2. That the court erred in permitting defendant Fugel to tes...
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It is alleged by plaintiff that she placed in the hands of defendant, as her agent, a sum of money, to be loaned on security, and that he converted a large part of it to his own use. She had a verdict and judgment for the amount thus converted. Defendant denied the agency, and resisted the action on the ground, alleged among others, that an account had been stated between the parties, by which a s...
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The court below rendered judgment quieting the title of plaintiff, a corporation, to an undivided one-half interest in a certain tract of land, containing about one hundred and forty acres situated in Sonoma county. Plaintiff claims to be the sole owner of the land, and to be aggrieved by the refusal of the court to so adjudge. Patrick Lawler, father of the defendant, died on September 8, 1887, be...
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In this case the pleader has attempted by his complaint to set out a combination of causes of action. In his prayer for judgment, he asks to have his title to certain realty quieted; that a certificate of redemption issued by the sheriff to the defendant Bardue be set aside and canceled, and the sheriff issue a deed to him as the successor in interest of the purchaser at the sale; that an injuncti...
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Motion to dismiss appeal granted, upon the ground that an appeal by the accuser in such a proceeding is not contemplated by law....
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Motion to dismiss appeal granted, upon the ground that an appeal by the accuser in such a proceeding is not contemplated by law....
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Defendant appeals from a judgment of the superior court of the city and county of San Francisco, convicting him of robbery, and from an order denying him a new trial. The single contention upon which a reversal is asked is that the verdict is not sustained by the evidence. The contention is untenable. The evidence of the *416prosecution tended to show that defendant and a confederate found the pro...
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On August 26, 1887, the defendant agreed to sell to A. Bartlett (brother of plaintiff) a certain lot of land situate in Berkeley, Alameda county. At the date of the agreement, A. Bartlett deposited with defendant $950 as a partial payment of the purchase money, on the express condition that it should be returned to him in case defendant’s title should prove invalid. The agreement and deposit were ...
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This action was brought by a real estate broker to recover commissions for services performed in finding a purchaser of certain real estate, Judgment went for respondents, and this appeal is prosecuted from that judgment, upon a bill of exceptions setting out the evidence. The court is now asked to reverse the judgment upon the evidence, and order a judgment for appellants; but it has no power to ...
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This is an action to recover upon a promissory note, made by the corporation defendant August 4, 1892, for $6,261.29, payable one day after date to the order of John Conly, in gold coin, with interest at eight per cent per annum, and indorsed by the payee thereof to plaintiff. Plaintiff had a verdict for $5,532.38, upon which verdict judgment was entered. Defendant appeals from the judgment, and f...
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This is an action upon an injunction bond given in an action in the United States circuit court, in which a temporary injunction was issued, enjoining the assignors of the plaintiff herein from infringing upon a certain patent right, issued originally to one Hancock for a certain dye used in dyeing broomcorn and brooms. In the suit in the United States court the injunction was finally dissolved, a...
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Action for divorce on the ground of adultery. After the statement of a complete cause of action for a divorce on the ground of adultery the complaint contains the following: “That the plaintiff is possessed of considerable property, both real and personal, situate and being in the said state of California, all of which is the separate property of the plaintiff, having been acquired by him before h...
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Four actions having been brought against the defendants to foreclose mechanics’ liens upon certain land in Berkeley, they were consolidated and tried together under the above title. One of these actions was brought by H. W. Taylor, and judgment was rendered in his favor, giving him a personal judgment against Lemberger, and making the same a lien upon the land. Certain of the defendants moved for ...
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W. A. Sanders was indicted for forging the name of William Wootton in a draft upon ICutner-Gnldstein Co. for the sum of fourteen hundred dollars, payable to the order of said Sanders, and for uttering and passing the said draft, knowing the same to be false and forged. From the judgment of conviction, and from the order denying him a new trial, he prosecutes these appeals. The story, as told by th...
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Action to recover the reasonable value of work and labor performed by plaintiff for the defendant at the request of the latter, between September 14, 1888, and September 14, 1889, in cutting and fitting clothing in the tailoring establishment of the defendant, in the city of San Francisco. The plaintiff alleged in his complaint that his services thns rendered were reasonably worth the sum of $3,40...
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This is an appeal from an order setting aside a default judgment. The motion to set aside was based upon the grounds of inadvertence and excusable neglect. The showing made by affidavit is very weak, and, if the lower court had denied the motion to vacate, its action upon appeal probably would not have been disturbed. But in matters of this kind the superior court is vested with large discretion; ...
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This is an appeal from an order setting aside a default judgment. The motion to set aside was based upon the grounds of inadvertence and excusable neglect. The showing made by affidavit is very weak, and, if the lower court had denied the motion to vacate, its action upon appeal probably would not have been disturbed. But in matters of this kind the superior court is vested with large discretion; ...
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This is an action to recover upon a promissory note dated May 25, 1891, made by defendant George T. Hughes, for $700, payable to the order of Jesse Harris, three years after date, at the First National Bank, Fort Collins, Colorado, with interest, etc. Plaintiff sues as the indorsee and owner of the note. Defendant’s amended answer denies plaintiff’s ownership of the note, or that it was ever the l...
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Appeal from an order refusing to vacate and dissolve an attachment. The order must be affirmed. The showing made by plaintiff on the motion directly contradicted that of the moving defendant as to the purposes for which the bicycle installment contracts were assigned to plaintiff; the defendant claiming that they were so assigned as security for the debt sued on, and plaintiff’s affidavit setting ...
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This action was commenced June 16, 1888, and defendants answered and filed a cross-complaint, upon which issue was also taken. During the trial, plaintiff asked and obtained leave to file an amended complaint; but *463when it was prepared the court refused to permit it to be filed, upon the ground that it did not conform to the proofs. Judgment went against the plaintiff, and his motion for a new ...
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The plaintiff is a corporation organized in accordance with the laws of this state for the purpose of constructing and operating a railroad in this state. Its capital stock, as fixed by its articles of incorporation, is $250,000, divided into two thousand five hundred shares of $100 each, of which shares only two hundred and sixty had been subscribed prior to the commencement of this action, and t...
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This is an action by Abbie A. Hayford to quiet her title to certain parcels of land situate in Placer county. Defendant, by her answer, denied the title of plaintiff, and in apt terms averred that the land was the property of W. B. Hayford, the husband of plaintiff, who in December, 1886, was insolvent, and in contemplation of insolvency, and for the purpose of defrauding his creditors, without co...
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This action is brought to enforce three several liens, one in favor of each of the plaintiffs, for labor performed upon the Gold Nugget mining claim, situate in the county of Siskiyou. The three plaintiffs united in the action, as under section 1195 of the Code of Civil Procedure they may properly do. At the trial the liens were severally offered in evidence. To their introduction, and to the intr...
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Writ of mandate to compel the defendant, as treasurer of the county of Glenn, to pay a warrant for $811.36, drawn upon the said treasurer by the county auditor, and payable to petitioner. Defendant had judgment in the court below, from which judgment plaintiff appeals. At the trial the plaintiff or relator, read to the court his petition and the answer thereto, and rested his case. Thereupon defen...
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Action to quiet title to separate parcels of land conveyed to appellant by separate deeds. Defendant, as a defense and by way of cross-complaint, averred the tract of land involved in this appeal was conveyed to plaintiff, who is appellant, by W. B. Hayford, her husband, November 7, 1886, without other consideration than love and affection; that at said date said W. B. Hayford was insolvent, and t...
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A petition for letters of administration upon the estate of the above-named decedent was filed in the superior court by Joseph L. Enos, who stated therein that he had been requested by Antonio Silvar, the brother of the deceased, to act as administrator of the estate, and accompanied his petition with the written renunciation by said Antonio of his right to letters of administration upon the estat...
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The action was to recover for merchandise alleged to have been sold to defendant, the theory o£ plaintiff being that the goods were sold and delivered through one B. Cerf, acting as defendant’s agent. Without first requiring proof of the agency, the court, against defendant’s objection, admitted the testimony of several witnesses as to declarations by Cerf of his authority to represent the defenda...
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Defendant was convicted of grand larceny in stealing a certain described steer. He moved for a new trial upon various grounds, and, among others,; he claimed that the verdict of the jury was not supported by the evidence, and also that the court misdirected the jury as to matters of law. The motion for a new trial was granted, and this appeal is by the people from such order. The order of the cour...
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Defendant was convicted of grand larceny in stealing a certain described steer. He moved for a new trial upon various grounds, and, among others,; he claimed that the verdict of the jury was not supported by the evidence, and also that the court misdirected the jury as to matters of law. The motion for a new trial was granted, and this appeal is by the people from such order. The order of the cour...
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plaintiff is the owner of certain lands adjoining those of the defendants, and claims to have a right *498of way through and over the lands of the defendants from his own land to the county road. The present action was brought by him to restrain the defendants from obstructing said right of way, the plaintiff alleging in his complaint that they threaten and intend to close and lock certain gates a...
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The plaintiff is a corporation organized under the laws of this state for the purpose of carrying passengers and freight on steamboats to be run upon the navigable waters of this state, and especially between the cities of Stockton and San Francisco. In February, 1892, plaintiff applied to the defendants for a suitable berth for their boats at some one of the wharves under their control or supervi...
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This is an appeal from a judgment and order refusing a new trial. No brief has been filed on behalf of the respondent. The action is for the forcible detention of certain lands and premises in Santa Cruz county known as the “Gamble Place.” The complaint alleges that on the first day of December, 1893, the plaintiff was in the actual, peaceable and undisturbed possession of the said lands and premi...
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The plaintiff, as the executrix of the last will of E. F. Spence, deceased, brought this action to have canceled and set aside a certain conveyance made on January 22, 1889, by said E. F. Spence to M. M. Bovard, E. F. Spence, H. Sinsabaugh, J. P. Widney, P. M. Green and R. M. Widney, “as trustees of an express trust,” upon the ground that the conveyance was void from the beginning, and the further...
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At the trial of this case the parties agreed on the facts by written stipulation which was adopted by the court as its findings. It thus appears that on October 24, 1890, defendant was a common carrier operating a line of railroad between Colfax, in Placer county, and Ogden, Utah, the latter point being the terminus of its route in the direction of the city of New York. On that day defendant recei...
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The appeal herein was taken May 26, 1896, and, no transcript on appeal having been filed in this court, the respondents, on August 27th, gave notice to the appellants of a motion to dismiss the appeal. At the hearing of the motion the appellants presented affidavits to the effect that one of the appellants had been ill, and that, while in this condition, had, on June 15th, instructed her attorney ...
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This is an appeal from an order appointing a day for the execution of the judgment of death pronounced against the defendant. At the time the day was so appointed an appeal was pending from an order refusing a new trial, and the point made here (if it can be said that any point was made) was that it was error to execute the judgment pending that appeal. The time for execution of the judgment was f...
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This is an appeal from an order appointing a day for the execution of the judgment of death pronounced against the defendant. At the time the day was so appointed an appeal was pending from an order refusing a new trial, and the point made here (if it can be said that any point was made) was that it was error to execute the judgment pending that appeal. The time for execution of the judgment was f...
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Plaintiffs are copartners in the practice of their profession of architects. They sued in this action to recover the alleged reasonable value of services performed, it is claimed, at defendant’s request in the preparation of drawings, plans and specifications for a building defendant had in mind to erect. After verdict and judgment in plaintiffs’ favor, the court granted a new trial on the sole gr...
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This appeal is by the defendants from an order denying their motion for a new trial. The action is in trover for the conversion of certain personal property, consisting principally of farming implements, of the alleged value of $660. The cause was tried by the court without a jury, and the court found that the defendants had converted to their own use certain specified portions of the said propert...
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This is an action of ejectment to recover possession of a strip of land containing twenty-five and one-fifth acres. It appears that plaintiffs and defendants own adjoining tracts of land in Yolo county, plaintiffs’ tract lying north of defendants’ tract. The strip in controversy extends along the dividing line of the said tracts from the east to the west side thereof, and is claimed by both partie...
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The plaintiff brought this action to recover the possession or value of eleven thousand raisin trays, more or less. The case was tried before a jury, and the verdict and judgment were in favor of defendant. The plaintiff moved for a new trial, which was denied, and has appealed from the judgment and order denying his motion. Two propositions are relied upon and urged as grounds for a reversal. The...
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This action was brought by the plaintiffs to foreclose their several alleged) liens for labor performed by them, respectively, upon the Weske Consolidated Placer Mine, of which all the defendants were alleged to be reputed owners, and that defendant Muir was the person in charge, and by whom they were employed. Muir answered, alleging that at all the times covered by the alleged claims of the seve...
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The plaintiffs sought by this proceeding a writ of mandate commanding the defendant, as treasurer of the city and county of San Francisco, to pay certain coupons of the Dupont street bonds. The defendant pleaded as a defense to the proceeding that the moneys in his hands belonging to the Dupont street fund had been paid in under protest, and that the parties paying the same had instituted an actio...
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E. C. Vancil, the intestate of the defendant Edwards, executed to the plaintiff, April 23, 1879, a conveyance of certain lands in the county of San Joaquin, as a security for the payment to him of certain sums of money. The transaction was evidenced by a conveyance absolute in form, and a separate defeasance in the nature of an agreement for the sale of said land to the grantor for the considerati...
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This action is prosecuted to recover for services rendered by the plaintiff as a physician and surgeon. The complaint contains two counts—the first upon an account stated, amounting to $1,200, and admitting a payment thereon of $500; and the second count alleged said services to be reasonably worth $2,500, the whole of which remained unpaid except the sum of $500. The defendant denied all the alle...
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Dwyer v. Parker, 115 Cal. 544, 47 Pac. 372, it was held that the provisions of the “Act to establish the fees of county and township, and other officers, and jurors *569and witnesses, within this state” (Stats. 1895, p. 267), so far as the same attempt to fix the compensation of the officers therein named, are unconstitutional. The compensation of the appellant, as constable of Los Angeles townshi...
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Dwyer v. Parker, 115 Cal. 544, 47 Pac. 372, it was held that the provisions of the “Act to establish the fees of county and township, and other officers, and jurors *569and witnesses, within this state” (Stats. 1895, p. 267), so far as the same attempt to fix the compensation of the officers therein named, are unconstitutional. The compensation of the appellant, as constable of Los Angeles townshi...
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This is an application for a writ of review, asking the court to annul an order made by the superior court of Placer county in the month of May, 1896, appointing one Mitchell administrator of the estate of Joseph Byrn, *570deceased. It is claimed that such order was beyond the jurisdiction of the court. Petitioner, Maggie Barrett, was the administratrix of the estate of said deceased. Upon the fif...
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This is an application, on notice, for a peremptory writ of mandate to the governor of California to appoint two police commissioners for the city and county of San Francisco. The attorney general moves to dismiss the proceeding, upon the ground that the relator has received no authority to sue in the name of the people of the state, and that he is not himself a party beneficially interested (Code...
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This is an application, on notice, for a peremptory writ of mandate to the governor of California to appoint two police commissioners for the city and county of San Francisco. The attorney general moves to dismiss the proceeding, upon the ground that the relator has received no authority to sue in the name of the people of the state, and that he is not himself a party beneficially interested (Code...
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The appellants constitute the board of supervisors in and for the county of Kern, state of California. Ordinance No. 52, adopted by the board of supervisors of the county of Kern, provides for the issuance of license to sell at retail spirituous, malt or fermented liquors or wines. The ordinance provides the mode of application, time of hearing the application, etc., and then provides as follows: ...
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In this cause judgment final for defendant was rendered on demurrer to an amended complaint. To support the judgment on appeal respondent relies on the plea of the statute of limitations (Code Civ. Proc., sec. 337) contained in the demurrer. March 30, 1896, plaintiff filed his original complaint, alleging that on April 1, 1891, defendant executed his promissory note in plaintiff’s favor for the su...
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This is an action of ejectment brought by the plaintiff to recover possession of certain lands in Sonoma county of which, it is alleged, he is the owner in fee and entitled to possession. Judgment was entered for the defendants upon the findings, and plaintiff appeals therefrom and from an order denying his motion for a new trial. John Shuster, the husband of Sarah E., and father of the other defe...
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Action to recover by C. T. H. Palmer, as assignee of C. A. Warren, contractor, upon a street assessment, and to enforce a lien therefor for grading Broadway, a public street in the city of Oakland. A demurrer was interposed by the defendants to the amended complaint of the plaintiff, which was sustained by the court, and, plaintiff having failed and declined to amend, final judgment went for the d...
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This is an action to recover damages from the corporation defendant, alleged to have been sustained by plaintiff by reason of the fall of a passenger elevator erected by said defendant for plaintiff in the History Building, Market street, San Francisco. Defendant, among other defenses to the action, set up the bar of the statute of limitations as found in subdivision 1 of section 339 of the Code o...
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This is an action to recover damages for an injury sustained by the plaintiff while he was in the employ of the defendant. By the verdict and judgment plaintiff was awarded damages in the sum of $1,500; from which judgment and an order refusing a new trial the defendant has appealed. In 1895 the defendant was engaged in constructing jetties at the entrance to Humboldt bay. A portion of the work to...
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The court is unanimously of the opinion that the writ ought to be dismissed. The fact, impliedly found by the court in exercising jurisdiction, that the notice of appeal had been filed, was, under the circumstances, entirely justified. The marking of the filing is not the exclusively competent evidence of the filing of the paper, and the absence of an entry in the justice’s docket is not conclusiv...
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This is certiorari to review the judgment of the superior court of Fresno county adjudging the petitioner guilty of contempt of court. The affidavit upon which the petitioner was cited was as follows: “ [Title, Court, and Cause.] “State of California, County of Fresno—ss.: [Affidavit of Graham.] “Geo. B. Graham, being duly sworn, deposes and says: That he is now, and at all times since the commenc...
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The court is unanimously of the opinion that the writ ought to be dismissed. The fact, impliedly found by the court in exercising jurisdiction, that the notice of appeal had been filed, was, under the circumstances, entirely justified. The marking of the filing is not the exclusively competent evidence of the filing of the paper, and the absence of an entry in the justice’s docket is not conclusiv...
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We regard this action as without any foundation in merit in its inception and as manifestly vexatious and oppressive, and the appeal which is here prosecuted as frivolous. The action was to foreclose a chattel mortgage given to secure eight several promissory notes, amounting in the aggregate to $675, made by defendant to plaintiff, falling due at different' dates; and was prosecuted upon the theo...
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This action was brought to recover the sum of $4,588, alleged to be the balance due from defendant to plaintiff for one hundred “rubber concentrator belts,” manufactured by plaintiff for defendant between January 3, 1893, and December 20, 1893. The defense was that a large number of the said belts were not of good quality, and were not reasonably fit for the purposes for which they were intended. ...
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Plaintiff claims that certain deeds of land, absolute in form, by him executed to one Charles McLaughlin, whose interest defendants have acquired by devise, were intended by the parties thereto to operate virtually as a mortgage; and he prosecutes this action to obtain an accounting of the rents and profits of the land, and to redeem the same from the effect of the deeds, or compel a reconveyance ...
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This is an action in ejectment, brought by the city and county of San Francisco against Ellen Grote to recover the possession, for street purposes, of a small strip of land alleged to be a portion of a public street, dedicated to the public as such. Said alleged street is known as " Garden avenue,” and extends through a single block from Devisadero street to Broderick street, between Geary and Pos...
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The defendant was charged, under section 548 of the Penal Code, with the offense of willfully destroying by fire a certain building, with the intent to defraud the Palatine Insurance Company, Limited, of Manchester, England, a corporation, in which company the property was then insured. A fire occurred in the town of Madera on the 27th of July, 1895, in which several buildings were consumed, one o...
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Petitioner discharged....
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Petitioner discharged....
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The plaintiff, as administratrix of the estate of John M. Little, deceased, brought this action to have a deed of three pueblo lots in the city of San Diego, executed by the decedent to the defendant St. Joseph’s Hospital and Sanitarium, on February 5, 1895, canceled and set aside, upon the ground that at the time of its execution the grantor was sick and infirm, and mentally incompetent to attend...
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In this proceeding the order of the superior court amending the original decree in the case of O’Brien v. O’Brien is conclusive upon me, and the decree as amended shows that the question of alimony was reserved. This being so, the subsequent order or supplemental decree awarding alimony is not void, and the court did not exceed its jurisdiction in imprisoning the petitioner for his refusal to pay ...
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In this proceeding the order of the superior court amending the original decree in the case of O’Brien v. O’Brien is conclusive upon me, and the decree as amended shows that the question of alimony was reserved. This being so, the subsequent order or supplemental decree awarding alimony is not void, and the court did not exceed its jurisdiction in imprisoning the petitioner for his refusal to pay ...
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This is an action to foreclose a lien for materials furnished for and used in the construction, alteration and repair of certain buildings on a lot of land in the town of Santa Monica, county of Los Angeles. Defendant Hege was the owner of the lot, and defendant Naumann was the lessee thereof. The materials were furnished by plaintiff upon the order of Naumann, and were of the alleged value of $24...
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Plaintiff leased of one Gregory ninety-five acres of land, and also purchased of Gregory barley to seed the same for a crop of grain hay; the lessor extending credit for both rent and seed upon an understanding that he should be paid therefor from the first proceeds of sale of the crop. Plaintiff then took one Smith Leedom as a partner in the business of raising the crop, they agreeing to share eq...
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This is a proceeding in mandate, commenced in the superior court, against the board of dental examiners of the state, and the individuals composing said board, to compel the issuance to petitioner of a certificate entitling him to practice dentistry, under the act of the legislature entitled “An act to insure the better education of practitioners of dental surgery, and to regulate the practice of ...
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The plaintiffs brought this action to foreclose a mortgage, given to secure payment of two promis*646sory notes of which they were the assignees. They obtained a judgment and decree of foreclosure as prayed for, from which, and from an order denying their motion for a new trial, the defendants Weed, the McCarthys and the McCarthy Company, a corporation, appeal. It appears from the record that prio...
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Action upon a verbal contract to cut and deliver sawlogs at the sawmill of defendant, on the East Fork of the North Fork of the North Yuba river, county of Sierra. The cause was tried by the court without the intervention of a jury. Written findings were filed, upon which judgment was entered in favor of plaintiff for $560 and costs. Defendant appeals from the judgment and from an order denying hi...
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This action is brought to foreclose a mechanic’s lien taken by plaintiff upon a building of the defendant the Masonic Building Association, to secure a balance of $756 due on account of material furnished and labor performed upon a building described as the “New Masonic Building,” situate in Redding, county of Shasta, state of California. The other defendants, viz., Confer and Hanks, who were the ...
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In probate. A. G. Clough, public administrator in and for the county of Merced, petitioned the court for letters of administration upon the estate of Gio*658vanni Galliano, deceased. Respondents Prank M. Borello, as the guardian of the person and estate of Charles C. Galliano, a minor son of the deceased, and N. P. Justy, as the guardian of the person and estate of James Prank Galliano, also a min...
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Action to quiet title. Findings and judgment were for the plaintiff, and defendants appeal from an order denying their motion for a new trial, upon the ground that the findings are not justified by the evidence. Plaintiff and defendants own contiguous lots in the city of Los Angeles, fronting on Buena Vista street, formerly known as Eternity street. Said street runs nearly north *660and south. Bel...
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The only question presented by the defendant in support of his appeal herein from the judgment of conviction is that the evidence was insufficient to justify the verdict of guilty. Without analyzing the evidence in its details, it is sufficient to say that the bill of exceptions shows that there was sufficient evidence presented to the jury to justify it in finding that the defendant had committed...
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The only question presented by the defendant in support of his appeal herein from the judgment of conviction is that the evidence was insufficient to justify the verdict of guilty. Without analyzing the evidence in its details, it is sufficient to say that the bill of exceptions shows that there was sufficient evidence presented to the jury to justify it in finding that the defendant had committed...
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At the hearing of this cause the appeal from the order denying a new trial was dismissed for want of an undertaking upon such appeal, the $300 undertaking for costs which was filed herein reciting only that it was in consideration of the appeal from the judgment: Duncan v. Times-Mirror Co., 109 Cal. 602, 42 Pac. 147. The only *665ground urged by the appellants in support of the appeal from the jud...
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At the hearing of this cause the appeal from the order denying a new trial was dismissed for want of an undertaking upon such appeal, the $300 undertaking for costs which was filed herein reciting only that it was in consideration of the appeal from the judgment: Duncan v. Times-Mirror Co., 109 Cal. 602, 42 Pac. 147. The only *665ground urged by the appellants in support of the appeal from the jud...
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This is an action brought to enjoin the defendants from selling or disposing of certain bonds issued, but not yet sold, by the city of San Luis Obispo (one of the defendants), and to restrain defendants from levying the taxes mentioned in the complaint, and from enforcing a certain ordinance of the said city. The cause was tried by the court, and judgment given for the defendants. The appeal is fr...
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This action is prosecuted by the plaintiff, an attorney at law, to recover for professional services rendered to the defendant under a special contract made June *6754, 1888, and for moneys paid out for the defendant at its request. Said contract fixed a monthly salary as a retainer, and for advice, etc., and provided that for his services in litigated cases he should have a reasonable compensatio...
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This is a motion to dismiss an appeal, in which the moving party denies the right of the appellant to appeal, and the right of the attorney who gave the notice as attorney for appellant to act as such. Affidavits were filed showing that the appellant had never appeared in the probate court at all, and, of course, had no attorney of record. It does appear, however, from the record, that the appella...
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This is a motion to dismiss an appeal, in which the moving party denies the right of the appellant to appeal, and the right of the attorney who gave the notice as attorney for appellant to act as such. Affidavits were filed showing that the appellant had never appeared in the probate court at all, and, of course, had no attorney of record. It does appear, however, from the record, that the appella...
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This is an action to quiet the plaintiff’s title to a quartz-mining claim, which is described by metes and bounds, and as being fifteen hundred feet long and six hundred feet wide, and called the “Starlight Quartz Mine.” The complaint is in the usual form, averring that the plaintiff is the owner and in possession of the said mine, and that the defendant claims some right, interest and estate ther...
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This is an action to obtain a decree annulling a deed of conveyance by defendant to plaintiff of the undivided one-sixth interest in and to about four hundred and eighty acres of land situate in the county of Pacific, state of Washington; to have it determined that plaintiff has an interest in the firm of Wiester & Co., which on August 1, 1890, was of the value of $7,000; that defendant be decreed...
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This action is upon a promissory note alleged to have been made and delivered by the defendant' to the plaintiff on August 8, 1890, for the sum of $3,000, payable one year after date, with interest at seven per cent. The answer denies that defendant made, signed or delivered said note. The pleadings are verified. A jury trial was had, and resulted in a verdict for- the plaintiff, upon which judgme...
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Action by W. J. Carlisle to recover from the county of Tulare $518.35 as fees in criminal cases earned by plaintiff as city marshal of the city of Tulare. A demurrer was interposed to the complaint, which was overruled by the court, and defendant declining to answer, judgment went for plaintiff.' Defendant appeals. There are some six causes of action set out in the complaint. Waiving these separat...
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The property involved in this case is situated in Lassen county, and described as that certain storage reservoir known as “Ball’s Canyon Reservoir,” or *708“Ward’s Lake,” located upon certain described sections of land, and a canal leading from said reservoir in an easterly direction to or near the town of Amedee, and known as the “Eagle Lake Company Canal.” The action was commenced April 3, 1895,...
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On December 18, 1893, J. D. Reilly, the appellant in this case, commenced an action against the Mammoth Spring Mining Company to recover the sum of $428.53 due him from said corporation for timber theretofore sold *713and delivered to said corporation, and on the same day caused a writ of attachment to be issued in said action, which was levied upon all the property of the corporation. At and prio...
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Plaintiff, being the owner of certain lots in the city of Fresno, entered into a contract of sale thereof with defendant Mary Husted, on March 6, 1891, for the consideration of $2,000; payments to be $40 upon signing the contracts, and $40 monthly until fully paid. It nowhere appears in the transcript whether these or any payments were made, nor whether said Husted was in default in the payments. ...
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These appeals are from the judgment, and from the order denying plaintiff a new trial. Defendant Firth was the treasurer of the corporation plaintiff. The defendants Fretwell and Kerr are his bondsmen. Plaintiff sued to recover the sum of $600, alleged to have been misappropriated. The facts disclosed upon the trial were as follows: The moneys of the plaintiff corporation were deposited in a bank,...
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The complaint alleges that on February 25, 1882, the plaintiffs and the defendants Warren C. Kim-ball and Moses A. Luce, and James S. Gordon, since deceased, executed their promissory note for $10,000, payable to the order of the Consolidated Bank of San Diego six months after date, with interest, and that said bank afterward indorsed said note to Bryant Howard; that plaintiff Ella S. Rogers signe...
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This is an action brought. by the administrator of E. L. Cook, deceased, to recover personal property alleged to be the property of the estate, and which, if is charged, is wrongfully withheld by defendant. The answer denies that the property belongs to the estate, or that it belonged to the deceased at the time of her death, or that plaintiff is entitled to the possession thereof. Prom the eviden...
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The ease in hand arises out of an action for malicious prosecution. There was a verdict for the plaintiff for $5,000 damages, which the court, of its own motion, set aside under section 622 of the Code of Civil Procedure. By the provisions of that section a court is authorized of its own motion to set aside a verdict “when there has been such a plain disregard by the jury of the instructions of th...
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In the superior court of Kern county the plaintiff commenced an action to recover judgment upon three promissory notes, made and delivered to him in that county by the defendant in the action. After service of summons, the defendant moved for a change of the place of trial of the action, on the ground that he was, at and before the commencement of the action, a resident of the city and county of S...
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We have examined the transcript herein, and are of opinion that this case must be governed by the rulings of this court in Davis v. Scott, 56 Cal. 165, Hosmer v. Duggan, 56 Cal. 258, and McBrown v. Morris, 59 Cal. 64. This must result in an affirmance of the judgment. Conceding that the showing is sufficient to authorize the court to grant the motion here made, and vacate the judgment of affirmanc...
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This was an application for a writ of prohibition. Upon the return of the alternative writ, the respondent *746demurred to the petition, and at the same time filed an answer. Argument was had upon the demurrer, but in the decision thereon, which was filed December 28, 1889, reference was made to the fact that a certain allegation in the petition and writ was not denied, and the decision is open to...
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This case was originally heard upon demurrer to the petition, an answer being filed at the same time. The demurrer, though not in terms, was in legal effect overruled, and a judgment final entered which was open to the construction that the same was given upon the petition and answer. Subsequently, upon motion, this decision was set aside, and the defendant was allowed to file an amended answer, a...
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This action was commenced on July 12, 1889, to recover the sum of $600, money had and received by the defendant for the use and benefit of the plaintiff. Issue was joined, and when the case came on for trial, on the objection of the defendant, the testimony on the part of the plaintiff was excluded by the court, as not admissible under the complaint. The plaintiff thereupon asked leave to file an ...
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Action to recover possession of a house and lot situate in Woodland, Yolo county, and damages for the detention, rents, etc. Plaintiff had judgment, from which defendant appeals. The cause comes up on the judgment-roll. The complaint avers, in substance, among other things, that on or about May 1, 1880, one Jacob Hays, being the owner of the locus in quo, did lease and let the same to the defendan...
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The plaintiffs claim to own, and to be entitled to divert and use upon their lands, 567/10,000 of all the waters flowing in and from the San Antonio canyon, which is located partly in Los Angeles county and partly in San Bernardino county; and they brought this action to have their title to the part of the said waters, so claimed by them, quieted, as against the defendants. The answer denied all t...
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This is an action for an accounting between partners. The material facts set out in the complaint may be briefly stated as follows: On or about the first day of March, 1885, the plaintiff and defendant, at the county of Del' Norte, in this state, entered into a verbal contract whereby they agreed to go into the business of buying, slaughtering and selling beef cattle and mutton sheep, and to divid...
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Action on a promissory note made by the defendant Larabee to A. Davis & Son, and indorsed by the decedent as guarantor. The plaintiff is a member of the firm of A. Davis & Son, and sues as assignee of the note. The defendant Larabee was not served with summons. The court found in favor of plaintiff on all the issues of fact, and, among other things, found the note to have been made and indorsed in...
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Action in ejectment to recover possession of two acres of land in Stanislaus county. The complaint is in the usual form. The answer, after denying the allegations of the complaint, for a second defense alleged that defendants were tenants in common, with the plaintiff, and were entitled to possession as such, and that they did and always had permitted plaintiff to have possession as such cotenant....
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This action was brought by the appellant, a constable within the county of Placer, to recover from that county fees for services rendered by him as constable in criminal cases other than felonies. The amount demanded in the complaint is the sum of $573.10, with interest from July 1, 1893. A judgment was rendered in the superior court in favor of plaintiff, but not for the full amount claimed. The ...
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The plaintiff is a corporation purporting to have been organized under provisions of Political Code, section 3446 et seq., for the reclamation of swamp and overflowed lands situate in the counties of Fresno and Tulare, the proceedings for the formation of which were initiated by petition to the board of supervisors of the county of Fresno. The *777object of this action is to recover from defendant...
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Motion by respondent to dismiss the appeal for failure of appellant to file a brief. We think it sufficiently appears from the affidavits filed by appellant in resistance of the motion that the failure to file the brief arose from a misunderstanding between appellant and his counsel as to whom appellant desired to represent him in this court. Daly & Toland were the attorneys for appellant in the l...
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In October, 1892, A. Sittenfeld and 0. Mandershied were partners, doing business at Paso Robles under the firm name of A. Sittenfeld & Co., and were indebted to numerous merchants in San Francisco in sums aggregating $8,900. They were in financial trouble, and desired an extension of time to pay their debts. To obtain such extension, they executed a promissory note for the full amount of said inde...
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One Gould made and delivered to plaintiff the following writing: “On or before sixty days, I, E. H. Gould, do hereby agree to pay to F. S. Bagley, or order, out of .the profits realized by me from my business of packing raisins at Malaga during the present season, the sum of $310 in gold coin of the United States of America. “Dated Fresno, September 12, 1894. “E. H. GOULD.” To this writing was att...
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The plaintiff and defendant, many years ago, were copartners as contractors for the construction of sea-walls, filling in streets, and other similar work. On March 18, 1880, the plaintiff brought an action in the superior court of -San Francisco against the defendant for an accounting and settlement of the partnership affairs, the appointment of a receiver and a dissolution of £he partnership, cla...
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Action to foreclose a vendor’s lien upon certain mining claims in Siskiyou county. Plaintiffs were the owners and conveyed the property to H. H. Hunter, one of the defendants, for the consideration of $2,000, of which $500 were paid in cash, and two promissory notes given for the balance. The notes falling due, plaintiffs commenced this action, and made certain holders of laborers’ liens, among th...
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Petition for certiorari to review the judgment of the superior court removing the board of supervisors of the city and county of San Francisco from office in a proceeding under the provisions of the act of March 7, 1881 (Stats. 1881, p. 54). The writ must be denied. The facts alleged disclose no excess of jurisdiction; and error in the proceedings, not involving excess of jurisdiction, if there wa...
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Petition for certiorari to review the judgment of the superior court removing the board of supervisors of the city and county of San Francisco from office in a proceeding under the provisions of the act of March 7, 1881 (Stats. 1881, p. 54). The writ must be denied. The facts alleged disclose no excess of jurisdiction; and error in the proceedings, not involving excess of jurisdiction, if there wa...
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This action was brought for the partition of a lot of land in the city and county of San Francisco. Plaintiff prays that she be decreed to be the owner of the undivided three-fourths of said property, and each of the defendants James H. Cameron and George T. Cameron to be the owner of an undivided one-eighth thereof; that certain conveyances to and by one A. Steinberger be disregarded and held for...
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Plaintiffs gave notice to defendant that they would on June 7, 1897, apply to this court for a writ of mandate directed to defendant, commanding him to forthwith pay to plaintiffs certain salary alleged to be due F. G. Ward, as sheriff of Lassen county, and remaining unpaid at the time of his death, to wit, for the months of April and May, 1895. The notice and accompanying affidavit were duly serv...
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Upon the former appeal in this case (Woodside v. Hewel, 109 Cal. 481, 42 Pac. 152) the judgment and order denying a new trial were reversed upon the ground that the evidence failed to justify the findings of the court. Upon the next trial, the superior court, at the close of the plaintiffs’ case, granted the motion of the defendant for a nonsuit, and entered a judgment dismissing the complaint. Pr...
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This suit was brought by the plaintiff to enjoin the water company, a corporation engaged in supplying the city of San Diego and its inhabitants with water for domestic and other purposes, from shutting off and refusing to supply the plaintiff with water. Plaintiff had judgment, and the defendant appeals therefrom. The cause was tried upon an agreed statement of facts, which is set out in a bill o...
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Rehearing denied....
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This action was brought on a promissory note calling for the payment of $36,000. Prior payments had been made thereon; but the amount of these payments is not material. Defendants, by way of cross-complaint, set out certain agreements, claiming thereby full satisfaction of the note, and also a judgment against plaintiff in th'e sum of $4,000. The views of the trial court coincided with defendants’...
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This is an appeal from the judgment rendered upon the verdict of a jury finding defendant guilty of assault with intent to commit murder. In January, 1895, the appellant, Bennett, was placed on trial before the superior court of Alameda county under an information charging him with an assault with intent to commit murder. The jury found the defendant guilty of the lesser offense of assault with a ...
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This action was based upon an order or draft drawn by the defendant Robinson on the defendants Newmark & Edwards, copartners, requesting them to pay to the plaintiff on certain conditions named, a certain sum of money. The order was dated September 24, 1894, and was accepted by the drawees in writing on the same day. The defendants jointly demurred to the complaint upon the ground that there was a...
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The only question presented here is as to which of certain two wills of decedent should be admitted to probate. Both are conceded to have been executed by the deceased in her lifetime. One is olographic, and is dated June 21, 1882. The other bears no date, but is witnessed, and was found by the court to have been executed in the summer of 1883, and was also found to have been the last will of the ...
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This action was brought to recover certain sums of money alleged to be due and owing from the defendant to the plaintiff for services rendered in criminal cases by himself and others, as constables and justices of the peace, the claims of the others having been duly assigned to him. It appears that a claim for each of the sums sought to be recovered had "been regularly and in proper form presented...
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Appeal from an order settling an account of appellant as assignee of said insolvent debtor. The principal question arises out of the sale of certain property of the insolvent by the assignee, the proceeds of which are embraced in said account, and to which account the Madera Flume and Trading Company, a creditor, filed exceptions. Said property was sold at public auction, after due notice, on the ...
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Action to recover $1,400 and interest for the alleged wrongful taking and sale of certain personal property of the plaintiff. Judgment of dismissal was entered as to C. S. Laumeister, one of the defendants. Final judgment was rendered in favor of plaintiff and against defend*864ant Jacob Steen for $943.41 and costs, and in favor of the deféndants S. Barnet, I. Blum, Joseph Blum and J. H. Jacobs fo...
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This action was brought to restrain and enjoin the issuance of a deed by the street superintendent of Los Angeles. A general demurrer was interposed to the complaint, which was sustained. Thereupon the plaintiff declined to amend, and, judgment having been thereafter entered, took this appeal. Since the appeal he has redeemed *867the property by paying the taxes, costs and percentage required. The...
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This action was brought to restrain and enjoin the issuance of a deed by the street superintendent of Los Angeles. A general demurrer was interposed to the complaint, which was sustained. Thereupon the plaintiff declined to amend, and, judgment having been thereafter entered, took this appeal. Since the appeal he has redeemed *867the property by paying the taxes, costs and percentage required. The...
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On June 1, 1887, the defendant M. L. Wicks executed to Mary Connolly and Patrick Connolly his promissory note for $20,000, bearing interest at the rate of ten per cent per annum, and to become due ¿June 18, 1888; and to secure payment of the note he, on the same day, executed to them a mortgage on two hundred and eighty acres of land, which contained the following clause: “It is agreed that any fo...
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Action for damages alleged to have resulted from a collision on defendant’s railroad at the station of Orange. The cause was tried by a jury, and defendant had the verdict. Plaintiff appeals from the order denying motion for a new trial, and on a statement of the case. The complaint alleges that, while plaintiff was a passenger on the car of defendant, a collision occurred at said station, ‘ ‘ cau...
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The court below made an order on April 24, 1896, authorizing and directing the executrix of the last will and testament of Thomas J. Brannan, deceased, to sell at public auction a certain described lot of land in the city of San Francisco, belonging to the estate of the deceased, for *883the purpose of paying the debts and legacies of said deceased. From that order this appeal is prosecuted by the...
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This action was brought to recover from defendants an alleged indebtedness of $2,093.75 for a carload of twenty-five thousand pounds of sweet pickle hams, sold by plaintiff to defendant on March 5,1890, and delivered to them at Sioux City, Iowa, on April 26, 1890. The defendants, by their answer, denied that the hams were delivered to them in *887accordance with the contract of sale, and denied th...
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In this cause Justice Harrison is disqualified ; and of the other members of the court Justices Garoutte, Van Fleet and McFarland are of the opinion that the judgment should be affirmed, and the Chief Justice and Justices Temple and Henshaw are of the opinion that the judgment should be reversed. The cause has been pending a long time, and repeated consultations have demonstrated that the said dif...
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The principal objection urged by appellant, that section 176 of the Civil Code does not contemplate or warrant the character of relief sought in the action and awarded by the judgment below, was, after very mature consideration, decided adversely to appellant’s contention in Livingston v. Superior Court, 117 Cal. 633, 38 L. R. A. 175, 49 Pac. 836—an original proceeding, resting primarily upon the ...
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The defendant has been convicted of the crime of forgery, in raising the amount of a check from $2.50 to $850, and also forging certain indorsements thereon, with intent to defraud the State Loan and Trust Company. He is also charged with uttering the check as forged, with intent to defraud said loan and trust company. 1. The demurrer to the information was properly overruled, and likewise the obj...
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The plaintiff brought this action to restrain the defendant Laumeister, as sheriff of the city and county of San Francisco, from selling a certain piece of real estate owned by him in said city, under an execution issued upon a judgment against the plaintiff’s grantor in *940favor of the defendant Weatherly. The defendant Laumeister made default, and the defendant Weatherly answered, alleging that...
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The only question presented is whether the evidence sustains the finding of the jury that the deed from defendants to plaintiff was intended as an absolute conveyance of the property, in satisfaction of the pre-existing indebtedness, and not as a mortgage to secure such debt. It would subserve no useful purpose to state the evidence, but it is sufficient to say that while, to our minds, it would s...
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The only question presented is whether the evidence sustains the finding of the jury that the deed from defendants to plaintiff was intended as an absolute conveyance of the property, in satisfaction of the pre-existing indebtedness, and not as a mortgage to secure such debt. It would subserve no useful purpose to state the evidence, but it is sufficient to say that while, to our minds, it would s...
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Action brought in the county of Fresno to enforce the conveyance by defendant to Sarah L. Foulke, wife of the other plaintiff, of certain lots of land in the town of Clovis, in said county of Fresno. Afterward J. N. Hines intervened in the action, claiming an interest in the property adversely to the plaintiffs. Judgment was rendered in favor of the plaintiffs and against the defendant, and in fav...
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Suit for divorce. This appeal is from an order made October 17,1892, on the motion of defendant requiring the plaintiff to pay to the defendant alimony, pendente lite, in the sum of $125 per month, and $200 counsel fees. Notice of appeal from said order was served October 29,1892, but the bill of exceptions was not settled until September 16,1896. The affidavit of defendant in support of said moti...
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The plaintiff brought this action to recover the amount due on a promissory note for $1,035, executed by defendant Alex De Borra to plaintiff, and to have foreclosed said defendant’s interest and equity of redemption in and to two certain described promissory notes alleged to have been pledged by him to plaintiff as security for the payment of his said note, and to be held by the defendant Orange ...
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The defendants appeal from the judgment upon the judgment-roll. The original complaint states a cause of action in ejectment to recover possession of a certain storeroom described as the east half of the ground floor of a certain building. Plaintiff claims under a lease executed by defendant Goodenow, the owner of the premises, consisting of a lot with a two-story and basement building thereon, th...
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Defendant was tried on an information charging him with murder. He was convicted of manslaughter, and sentenced accordingly. There was evidence at the trial of the following circumstances attending the homicide: Defendant and the deceased, one L. G. Brown, lived in a small house belonging to defendant, and together followed the business of making shakes in the adjacent forest. Deceased was about s...
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This is an action to recover $866.66 paid by plaintiff’s intestate to John P. Sanborn upon a contract for the purchase of land in the county of Los Angeles. After the contract had been made, Sanborn conveyed the land to Murphy, who expressly assumed all the obligations of San-born’s contracts. Sanborn was not served with process, and Murphy is practically the only defendant. The contract was made ...
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Action to recover damages for alleged breach of covenant in a deed of lands. It was alleged in the complaint that the conveyance was made in consideration of the sum of $700 paid by plaintiff. In their answer, defendants did not deny the execution of the deed, or that it contained the covenant alleged, or that the covenant was broken; but they denied that the conveyance was made in consideration o...
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This action was for money had and received. Defendants denied all indebtedness, and set up a counterclaim alleging that plaintiff was indebted to defendants for goods, wares and merchandise. When the case came on for trial the court made the following consent order: “ . . . . That this action be, and it is hereby, transferred to Stuart S. Wright, Esq., court commissioner of this court, for an acco...
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Action to recover a balance of $1,773.94, alleged to be due to plaintiff from defendant on an account for wood, for services, and for pasturage. Defendant pleaded the general denial, the two year statute of limitations, and affirmatively set up an agreement that the stock for which pasturage was charged was to be pastured free in consideration of their use. The pleadings are verified. Defendants a...
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Plaintiff brought this action to contest the right of defendant to exercise the office of supervisor of the county of Tulare, for supervisor district No. 3 therein, for the term commencing January 4, 1897, to which said office defendant had been declared elected by the board of supervisors. The court found that three hundred and forty-six votes were counted by the board of election of the several ...
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This action was brought by plaintiff, as a stockholder in the corporate defendant named, against the corporation, the directors thereof, and various other persons, charging a fraudulent conspiracy between the directors and others to cheat and defraud the corporation. Among other preliminary allegations, the plaintiff charges that Hayward and Hobart were largely the owners of the stock in the Nevad...
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