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All Reporters → p → Volume 269

Opinions in p Volume 269

In the year 1925, one Barney Hanson and others filed an action in the superior court of Whatcom county against a number of defendants, among whom was the First National Bank of Bellingham. The gist of the complaint was that the plaintiffs were stockholders in a corporation, and that, on behalf of the corporation, an application had been made to the treasury department for refund of certain income ...
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Appellant, convicted of the crime of bootlegging, has appealed. He urges that the evidence was insufficient to sustain a conviction. The facts follow: About midnight on April 2, 1927, the sheriff of Okanogan county was investigating conditions at a dance being held at Malott in that county. He overheard the appellant say to another, "Are you the man that wanted the bottle?" The other asked appella...
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This case presents for decision the question: Is the surety on a contractor's statutory bond on public work, given pursuant to Rem. Comp. Stat., § 1159 [P.C. § 9724], liable for groceries furnished to the contractor for use in a cook house or boarding house operated by the contractor at the site of the work? The trial court held the surety liable and entered judgment accordingly. There is no subst...
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The appellant telephone company seeks in this court reversal of a judgment of the superior court for Yakima county affirming an order of the state department of public works finding and fixing the value of appellant's public service property; appellant contending that, in so far as the department refused to consider and add to the valuation of its property a substantial amount based upon so-called...
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THESE parties appear here in the same order as in the trial court, and for convenience we refer to them as there. Plaintiff brought this action to recover of defendant as one of the guarantors of a promissory note. A demurrer to the complaint was overruled and defendant answered. A demurrer to the answer was overruled in part and sustained in part. A reply was filed and the cause *Page 209 was tr...
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THE Walker Investment Company, plaintiff below, hereinafter called Walker, obtained a decree against Sanderford, et al., quieting title to certain real estate. Sanderford brings the case here for review. The decree shows that Walker's title was derived through two tax deeds, dated August 20, 1926, issued to the American Tax Company, and by deed from the latter to Walker, on September 15, 1926. It ...
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THIS writ of mandamus was sued out of the district court of Huerfano county by S. Julian Lamme as relator, against Charles S. Buckland, et al., as members constituting the Huerfano high school committee, and J. W. Yost, principal of the school. Its object was to compel the respondents to reinstate in the high school the daughter of Lamme, who had been a pupil therein but who was expelled from the ...
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PLAINTIFF Shearer had a money judgment against Mrs. Shearer, his divorced wife. She brings error. The complaint avers that in December, 1924 (which was before the wife was granted a divorce from him), plaintiff lent to the defendant at her request $4,683.34, no part of which has been paid. The answer denies that plaintiff at any time lent any sum of money to the defendant at her request, or at the...
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DEFENDANT in error was plaintiff below and had judgment against plaintiff in error upon his first cause of action for a divorce and upon his second cause of action for a division of certain property. She brings error. The evidence is not brought up; we must, then, assume that it was sufficient to sustain the judgment. The briefs show that the evidence was of a common law marriage only, and that th...
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The opinion of the court was delivered by These are statutory actions against the directors of the Farmers State Bank of Mulvane to recover the amounts of deposits made by the plaintiffs while the bank was alleged to be insolvent. Plaintiffs prevailed and defendants appeal. The facts are substantially these: The bank’s business had been conducted for several years by J. R. Rosecrants, its cashier...
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The purpose of the law providing for a written notice of a decision is very forcibly stated in Kelleher et al. v. Creciat, 26 P. 619, particularly page 620, second column thereof. In this case there was service of proposed findings in writing and acceptance thereof in writing, which under our practice could only mean that a decision had been rendered and that the prevailing party was completing th...
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This is an action by the Washburn-Bettis Company against the Southern Surety Company. Judgment was entered for plaintiff for the amount claimed, and from this judgment the defendant has appealed. The parties will be named herein as in the court below. Plaintiff in its amended petition, in substance alleged that prior to August 30, 1924, defendant had in its employ a firm known as Groner McDonley,...
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On January 27, 1925, in the District Court of Fremont County, Wyoming, the Lawer Auto Supply Company, a corporation, as plaintiff, obtained a judgment against Teton Auto Company, a corporation, L.B. Gaylord and A.C. Olson, as defendants, for the return of a certain auto truck described in the petition, and "unless the same is returned to plaintiff within ten days from the date hereof, that plainti...
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ON PETITION POR REHEARING A petition for rehearing has been filed by respondent, but a careful examination of the authorities and arguments presented with it have not convinced us that we were wrong in the conclusions set forth in the opinion heretofore announced in this case. However it has come to our notice that counsel have some doubt as to the procedure to be followed by the trial court in...
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This is an original proceeding commenced in this court by the plaintiff for an alternative writ of prohibition to be directed to the defendants, the District Court of the Eighth Judicial District of Wyoming, within and for the County of Natrona, and Bryant S. Cromer, Judge of said court, commanding it and him to desist and refrain from any further proceedings in a certain civil action, mentioned i...
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This was an action brought in the District Court of Weston County by Mrs. Grace Brown, plaintiff below and respondent here, to quiet title to certain real estate in that county, and to restrain the sale of said property under execution issued on a judgment obtained by defendant and appellant, Citizens National Bank of Cheyenne, Wyoming, against one John Popham. The case was tried to the court with...
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The plaintiff is one of the lessors and the defendant the lessee in an oil and gas lease of lands held by the lessors as placer mining claims. *Page 507 The lease is dated September 22, 1917, and recites that the lessors have "leased, let and demised" to the defendant the described lands "for the purpose of drilling for petroleum, gas and other minerals, and of extracting the minerals from the la...
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[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 517 Plaintiff in error, the Wyoming Building and Loan Association, brought an action against the Mills Construction Company to foreclose a mortgage on certain real property in Natrona County, Wyoming, making D.E. Davidson and Pat Royce, junior mortgagees, par...
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OPINION OF THE COURT Appellants are the present owners of New Mexico private land claim No. 1, and appellee of claim No. 29, both confirmed by Act of Congress of June 21, 1860 (12 St. at L. 71); subsequent to which act both were surveyed and patented, the former to Preston Beck, Jr., and the latter to Manuel Rivera and thirty-five others, unnamed, their children, successo...
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OPINION OF THE COURT This is an action by plaintiff (appellee) and intervener (appellee) to set aside a conveyance made by appellants W.H. McNew and Nettie McNew, his wife, to their son, Robert J. McNew, and for other incidental relief. The answer contained general and specific denials, and also three separate affirmative defenses, which, if sustained, would defeat the cl...
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Anglo London Paris National Bank of San Francisco, a corporation, hereinafter called plaintiff, brought suit against Consolidated National Bank of Tucson, a corporation, hereinafter called defendant, on two causes of action. The first was on a guaranty of certain promissory notes *Page 162 amounting to the sum of $67,649.68, and the second for an alleged loan by plaintiff to defendant in the sam...
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On May 1, 1928, this case was referred to the superior court of Maricopa county *Page 191 for the purpose of having that court find the facts necessary to determine these two ultimate facts: First, whether plaintiff, H.S. McCluskey, failed for three consecutive months prior to January 20, 1928, to perform the duties of the office of industrial commissioner when not prevented from doing so by sick...
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Willard De Witt Rogers was accidentally killed in this state on August 15th, 1926, while in the discharge of his duties as an employee of the Central Arizona Light Power Company. His occupation came within the terms of the Workmen's Compensation Act (Laws 1925, chap. 83), and the Industrial Commission made an award to his widow, Eutrophia Marie Rogers, with whom he was living at the time of his d...
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Abelardo J. Vazquez, hereinafter called plaintiff, on July 13, 1921, brought suit against Grace Dreyfus, hereinafter called defendant, to have a certain deed given by him to defendant declared void for lack of consideration. T.F. O'Brien and Fred H. Luth, who were attorneys residing in Los Angeles, California, filed an answer *Page 185 for the defendant on August 30th, 1921. On October 23d 1922, ...
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On May 1, 1919, respondent, Cooperative Publishing Company, which hereinafter will be referred to as the corporation, authorized the issuance of first mortgage gold bonds totaling $75,000. On the same date the corporation executed a chattel mortgage or deed of trust to secure the bonds, which mortgage covered the printing plant, machinery and equipment of the corporation, and delivered the same to...
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This is an appeal from a judgment of the district court for Twin Falls county, quieting title in the defendant, First National Bank of Twin Falls, Idaho (respondent here), to certain real property situated in the city of Twin Falls, and described as Lot 8, Block 107 of the original townsite of said city, and referred to in the record as "The House of Seven Gables." The facts are substantially as f...
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Appellant filed this action against respondent to recover upon a promissory note executed by respondent, made payable to the Paysee Investment Company, and by the latter company sold and delivered to appellant. Respondent's defense was that the note was obtained by the investment company by fraud and misrepresentations, and failure of consideration in that the Paysee Investment Company had failed ...
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Respondent brought action against the Commercial State Bank, insolvent, and the state commissioner of finance in charge thereof, to compel classification of a claim against the bank as a trust fund under 1921 Sess. Laws, chap. 42, sec. 13, subd. 2, instead of classification as a general deposit under subd. 3. Respondent was engaged in loaning money on city property in Burley and was represented in...
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At a general election held November 2, 1926, appellant and respondent were candidates for the office of sheriff of Benewah county. After the votes were canvassed and respondent was found to have received a majority, appellant filed a complaint contesting the election and setting forth numerous grounds of contest. Coincident with the filing of his complaint, appellant presented to the clerk of the...
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Plaintiff sued, under the authority of C. S., sec. 4676, to recover the amount expended by it in the care of John Evans, son of the defendant. A general demurrer was filed by defendant and was overruled. Defendant answered, has appealed from an adverse judgment and assigned as error the action of the trial court in overruling her demurrer. Her position is that the complaint fails to state sufficie...
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It is alleged that the defendants, E.K. Lorimer and Lorimer's City Dye Works, a corporation, issued certain shares of stock in the corporation to plaintiff and certain others, his assignors, on an agreement that the purchasers could return the stock and receive back the price paid, together with interest, at any time they became dissatisfied with the stock. Plaintiff and his assignors, according t...
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Certain water users in Meridian precinct, Ada county, owned and operated in common a lateral ditch known as the Lower Hunter Lateral through which they received water from The Nampa & Meridian Irrigation District and Company in common with the defendant and appellant, who owns approximately 105 miner’s inches of water in the distributing company. During the irrigating seasons of 1923 and 1924 p...
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This is an action in damages for alleged breach of contract. In the spring of 1924 respondent-plaintiffs and the defendant, Edward Rutledge Timber Company, each had independently certain logs in both Cranberry and Bussel Creeks, small tributaries of Marble Creek, through which latter stream they expected to transport such logs to the St. Joe River and thence to market. Plaintiffs plead that they a...
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Plaintiff sued to recover judgment upon a promissory note executed by defendants at Shelley, Idaho, payable to themselves at the Pingree National Bank of Ogden, Utah, by them indorsed and purchased by plaintiff from the holder. Plaintiff alleged it *Page 547 purchased the note before maturity, for value and without notice, and that it claimed the benefit of and relied upon the laws of the state o...
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Action brought by appellant to quiet title to certain real property, of which she claims to be the owner. Appeal from judgment dismissing complaint. On January 3, 1918, Jerry L. Dore deeded the property in controversy to appellant, who was then his wife. On October 11, 1919, Dore and his wife executed a deed to the property to F. A. Shultis, the named consideration being $500; it appearing by oral...
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Plaintiff sued to recover judgment upon two promissory notes executed by defendant in favor of W. A. Bishop Company and by it transferred to plaintiff. The defense, pleaded in detail, was that the notes were given as part of the purchase price of a 22-40 tractor purchased by defendant from the plaintiff and the Bishop Company by reason of his reliance upon certain false "representations, guaranti...
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This is an action to foreclose a mortgage on real estate, given by defendants J.B. Perkins and wife, appellants here, to one E.C. White, to secure payment of their promissory note for $7,000, both the mortgage and debt being assigned to plaintiff before maturity. Defendants admit the execution and delivery of the note and mortgage, and allege that it was executed and delivered with the understandi...
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I concur in the views expressed by Mr. Justice CHERRY in his dissenting opinion....
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This is an action to recover an inheritance tax on shares of capital stock of several corporations alleged to have been transferred by the deceased, Ezra Thompson, to his children more than six years prior to his death. After the cause in the above-named estate was closed, a distribution of the property had, the adminstrators discharged, and their bonds exonerated, William D. Sutton, the state tre...
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Chapter 68, Laws Utah 1919, provides for the organization and government of irrigation districts and for the acquisition Corpus Juris-Cyc. References: [1] Counties 15 C.J. p. 540 n. 93; Municipal Corporations 44 C.J. p. 69 n. 60. [2] Waters 40 Cyc. p. 824 n. 58. *Page 90 or construction of works for the irrigation, drainage, and local improvement of lands embraced within such districts. The Price...
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This case has been once decided by this court, and a rehearing was granted. The opinion first handed down will not be published, since it seems necessary in discussing the *Page 99 questions involved to cover much the same ground covered in the first opinion. By his complaint, respondent alleges, in substance, as a first cause of action, that on or about April 1, 1910, he was the owner and entitl...
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This is an original petition to this court for a writ of prohibition against Hon. Dilworth Woolley as judge of the district court of the Seventh judicial district for Sanpete county, state of Utah. Upon the petition of the plaintiff herein an alternative writ was issued. So far as is necessary to the decision and for a full determination of the question involved, the facts set out in the petition ...
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The five above-entitled cases were, by stipulation, tried together in the court below, and separate judgments entered. They have also been argued and submitted together in this court. The cases are identical in their nature and purpose, and involve, with the exceptions hereinafter stated, the same questions. The actions are to quiet and confirm the title of the plaintiff to the several tracts of r...
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Seth Pixton, as state bank commissioner, brought this action against Heber W. Perry, personally and as county treasurer of Box Elder county, to recover from him certain bonds and stock certificates alleged to be assets of the Bank of Garland and to have been delivered to him by the bank without authority. The case was tried to the court, who made findings in favor of the defendant and rendered Cor...
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The plaintiff, as assignee of certain alleged claims against the defendants, instituted this action to enforce the collection of said claims. The defendant Boston Acme Development Company is an Arizona corporation, and the defendant Boston Acme Mines Corporation is a Delaware corporation. These companies will hereinafter be called the development company and the mines company. It is alleged in the...
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In this action the plaintiff sets forth a cause of action against the defendant, his wife, for divorce upon the ground of wilful desertion. To this a general demurrer was interposed, which was by the court overruled, and this ruling, amongst others, is assigned as error. The complaint states a cause of action and the demurrer was properly overruled. (Sec. 5739, Rev. Codes 1921; Grierson v. Grierso...
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This is a suit for foreclosure of mortgage on real estate. The appeal is from an order of the district court, refusing to grant an injunction pendente lite, in favor of Minnie H. 8. See 14 Cal. Jur. 180; 14 R.C.L. 312. *Page 24 Bingham, a defendant, and against the plaintiff and Richard Manger and Clara Manger, other defendants. Plaintiff is and was a national bank. April 11, 1924, for a valuable...
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This action against the defendant, the City of Sacramento, was filed in the county of Yolo. Said defendant appeared therein and moved the court for a change of the place of trial of said action upon the ground that the plaintiff was either a resident of or was doing business in said county of Yolo. The motion was granted and an order made changing the place of trial of said action from said county...
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Appeal by plaintiff from judgment in favor of defendants. The complaint was in the usual form of a quiet title suit, but upon the filing of answer and cross-complaint by defendants it was amended to declare a trust in real property, and under such pleadings, upon request of the parties, the question of title to the property was tried. The appeal is utterly without merit and the various contenti...
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THE COURT. [1] The order granting defendant's motion for a change of venue in this action is affirmed on the authority of Finance Construction Co. of California v. City of Sacramento, ante, p. 491 [269 P. 167]. The only difference in the two cases is that in this case the plaintiff is a private person, while in case No. 3996 the plaintiff is a corporation. This difference is not material to any qu...
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This is an appeal from a judgment of dismissal following the sustaining of a demurrer to the complaint without leave to amend. The complaint is one for damages for loss of a crop of rice resulting from the defendant's alleged refusal to deliver irrigation water to the rice lands of the plaintiff. Briefly and in substance it is alleged that the defendant is organized and existing under the Californ...
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The appeal is by defendant, as seller, from a judgment for plaintiff, as a buyer, for seven hundred dollars, the amount paid on the purchase price, in an action to rescind the purchase under formal written contract dated May 6, 1923, of a second-hand Packard automobile. As finally amended, count one of the complaint is denominated a cause of action to rescind for fraudulent misrepresentations touc...
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This suit was commenced by C.W. Dorris. He subsequently died, and defendant's appeal is therefore *Page 505 prosecuted against his executor. The action is one to recover upon a creditor's claim filed against the estate of Henry D. Meyer, deceased, based upon an alleged promissory note dated November 26, 1923, executed by decedent to said C.W. Dorris, payable six months after date, in the principa...
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The plaintiff, Hazel B. Olson, brought this action to foreclose the rights of defendants in certain real property situate in the city of Los Angeles. The case was tried by the court without a jury, and the court found, among other things, that plaintiff had no right, title or interest in the property described in the complaint, and rendered judgment in favor of defendants, from which judgment the ...
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The defendant was charged by an information filed in the superior court of Alameda County with the murder of Elizabeth Buckles. Upon the trial the jury returned a verdict of murder of the second degree, and from the judgment thereon and an order denying a motion for a new trial the defendant appealed. As grounds for reversal it is contended that the evidence is insufficient to support the verdi...
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Appellant was charged by information filed by the district attorney of Los Angeles County with the crime of murder. From the judgment upon a verdict of guilty of manslaughter, and an order denying the defendant's motion for a new trial, this appeal is prosecuted. Four assignments of error are stated, as follows: First. "A dying declaration, or statement, was admitted in evidence contrary to law, a...
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The plaintiff brought a creditor's bill against the defendants. They answered and a trial was had before the court sitting without a jury. The court made findings in favor of the plaintiff and from a judgment entered thereon the defendants have appealed. The defendants made two points. They contend the evidence is insufficient to justify the decision and they contend that the bonds hereinafter men...
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On the eleventh day of May, 1928, in the municipal court of the city of Los Angeles, Francisco Ahumada was convicted of a misdemeanor committed in said city On the same day he was sentenced to pay a fine of $250, or in default thereof to be confined in the city jail in the proportion of one day for each $10 of the fine unpaid, not to *Page 153 exceed 25 days. He was then taken to the Los Angeles ...
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The petitioner is under sentence of imprisonment for having violated certain provisions of an ordinance of the city of Los Angeles. He asks to be discharged on habeas corpus, claiming that the ordinance is void. The provisions of the ordinance here in question are the early part of section 5, subdivision (a) of section 5, and the first paragraph of section 12. The first part of section 5 reads: "P...
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A proceeding in mandamus to compel respondents to make a proportionate distribution of the remaining part of a fund known as the "Twin Peaks Ridge Tunnel Assessment Fund," which was created by the assessment upon land owned by petitioners and others of the cost of constructing the Twin Peaks tunnel in the city and county of San Francisco. On March 3, 1913, there was adopted by the Board of Supervi...
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This is an action for declaratory relief under section 1060 of the Code of Civil Procedure. The case was tried by the court sitting without a jury and judgment was entered in favor of the defendant, from which judgment the plaintiff prosecutes this appeal. *Page 118 The facts are, briefly, these: The plaintiff and appellant is the owner of the Chamber of Commerce building, situate in the city of ...
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The defendant was convicted upon an information charging the commission of a felony, omitting mere formal allegations, in the following words, to wit: "The said Robert Maine, on or about the 15th day of November, A.D. One Thousand Nine Hundred and Twenty-seven at and in the County of Sonoma, State of California, did wilfully, unlawfully and lewdly commit certain lewd and lascivious acts upon and w...
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Defendant appeals from a judgment of conviction of the crime of robbery and from an order denying his motion for a new trial. The fact that a robbery occurred, as charged in the information filed against defendant, is not disputed; but the sufficiency of the evidence to establish the identification of defendant as the man who committed the crime, as well as the effect of certain evidence admitted ...
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The respondents were tried before a jury in San Bernardino County upon a charge of having violated the Corporate Securities Act, and were convicted. They then moved the trial court for an arrest of judgment, which motion was granted upon the ground that the indictment failed to state facts sufficient to constitute a public offense. The People appealed from such ruling, and respondents moved this c...
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The defendant was convicted upon an information charging her with the offense of manslaughter, and appeals from the order denying a motion for a new trial and from the judgment of conviction. Upon this appeal the principal grounds urged for a reversal are that the verdict is not sustained by the evidence; that the court erred in its instructions to the jury; and that prejudicial error was committe...
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This is a suit by plaintiff to set aside and cancel a deed executed by plaintiff conveying four hundred acres of land to Favell-Utley Realty Company and to quiet title in plaintiff to the conveyed lands. The cause was tried in the court below and, *Page 229 from a decree dismissing the suit, plaintiff has appealed. The only allegations contained in the complaint upon which the right to a cancella...
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This is an action for malpractice against a physician who is an eye specialist. A small sliver of steel entered the plaintiff's left eye January 31, 1924; he employed the defendant to attend to the injury and at that time informed the latter that he believed an *Page 162 object had entered his eye. The defendant made an examination which convinced him that the plaintiff was mistaken; he bandaged ...
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[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 179 This is a suit to remove a cloud from the titles of the plaintiffs. The complaint alleges that October 11, 1920, the plaintiffs, or their predecessors in interest, were the owners of certain lots described in the complaint; that upon that day the aforemen...
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This is an action for damages to recover the balance of warrants issued by the defendant city to plaintiff, on account of the construction of improvements in paving districts 26 and 27 in the City of McMinnville, during the year of 1920. After the disposition of an equitable defense interposed by defendant the court tried the case as an action at law pursuant to a stipulation of the parties withou...
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The appealing defendant was adjudged guilty of the crime of assault with intent to rob, and sentenced to serve a term of fifteen years in the penitentiary. The statute under which he was indicted, tried and convicted reads: "If any person shall assault another with intent to kill, or rob, or to commit rape upon such other, or to commit any of the crimes specified in section 1914, such person, upon...
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This is an action to recover damages for the breach of a contract. The facts are that in September, 1924, the plaintiff came to the City of Portland and proceeded with plans to establish an advertising publication *Page 220 to be distributed to the homes of the city. At the same time the defendant, Harry Marcus, was contemplating a similar venture. After the plaintiff had made considerable progre...
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This is an original proceeding in mandamus, brought to require Honorable JACOB KANZLER, as *Page 246 Judge of Department No. 1 of the Circuit Court of the State of` Oregon for Multnomah County, to enter and record and pronounce judgment upon the verdicts rendered in Case No. M-6387, wherein Richard P. Landis and Mabelle E. Landis are plaintiffs, and James A. Reynolds and Minerva D. Reynolds are d...
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[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 109 This appeal is from a judgment in favor of defendants on their affirmative defense to plaintiff's action of claim and delivery against them. The action was instituted by plaintiff to recover the possession of 469 packed boxes of apples and 2,500 boxes of ...
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The defendant appeals from the judgment of the Circuit Court requiring him to issue to plaintiff, Karl Herbring, a license to act as agent for the Northwest National Fire Insurance Company in the sale of fire insurance in the City of Portland, Oregon, without said fire insurance company being required to pay to the State of Oregon the sum of $500 as an annual license fee for the appointment of an ...
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This action was commenced in the district court of Garfield county on June 27, 1922, by Lydia M. Brooks, as plaintiff, against the city of Enid, as defendant, for damages by reason of certain inconveniences and annoyances alleged to have been caused said plaintiff by the defendant's negligent operation of its sanitary sewer system during the two years next preceding the filing of the action. The p...
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This is a suit brought by Eugene Howe, defendant in error, against George A. Cornell, Jr., plaintiff in error, to recover commission as broker in the sale of a tract of land. The case was tried to the court without a jury, and the plaintiff had judgment, from which the defendant appeals. The parties will be referred to as they stood in the trial court. The question most seriously urged is that *Pa...
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On November 25, 1919, C. W. Stephens obtained a judgment in the district court of Osage county, Okla., against Julia Edwards on a promissory note for the sum of $1,410 and interest. Sometime thereafter the county court of Osage county adjudged Julia Edwards incompetent and appointed J. W. Halterman as her guardian. Thereafter, C. W. Stephens made an application to the county court of Osage county,...
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This action originated in the district court of Seminole county, wherein B. F. Davis, as plaintiff, who is defendant in error here, filed his petition naming the unknown heirs, executors, administrators, devisees, trustees, and assigns, immediate and remote of Echoille Harjo, Seminole Roll No. 92, deceased, et al., as defendants, and alleged he was the owner and in possession of certain lands (120...
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This was an action by A. B. Dollard and Minnie G. Dollard against the Union Transportation Company, for the recovery of damages based upon the alleged negligent act of running down and killing plaintiff's eleven year old son, by a motor bus operated by the defendant. A demurrer was sustained to the evidence of plaintiffs, and the jury were instructed by the court to return a verdict for the defend...
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In this cause the parties appear here as they appeared in the trial court. Plaintiff sought judgment against defendant on two promissory notes aggregating $2,500, and for foreclosure of a mortgage lien on certain realty subject to a certain first mortgage. The petition contained the usual allegations in such cases. By appropriate pleadings, defendant answered that the notes sued on were given with...
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The essential facts in this case are as follows: 1. Lena Friedman filed suit for divorce against her husband, Loues Friedman, in the district court of Tulsa county, and after the issues were properly joined, on the 10th day of March, 1925, the court rendered a judgment in the case granting plaintiff a divorce and the apportionment of personal effects, allowance of alimony, and judgment for the cos...
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This action is presented on appeal for the purpose of reversing a certain judgment rendered in the district court of Johnston county, Okla., wherein the district court decreed the removal of certain administration proceedings pending in the county court of Johnston county to the county court of Marshall county. It appears that prior to statehood J. B. Chastain was, by the United States Court for t...
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This is an original action filed in this court by petitioners, Pickering Lumber Company and Consolidated Underwriters, to review an award of the State Industrial Commission made and entered on the 20th day of September, 1927, which award found that respondent Henry Tincup was temporarily totally disabled and that he was entitled to compensation at the rate of $18 per week from the 2d day of Januar...
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This is an original proceeding instituted in this court by the Industrial Track Construction Company and the Consolidated Underwriters, as petitioners, seeking to have an order and award of the respondent, the State Industrial Commission, dated June 9, 1927, reviewed and set aside on account of certain alleged errors. The respondent, William Franklin Colthrop, will be referred to as claimant. The...
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The parties appear as they appeared below, and will be so referred to. The plaintiff brings this action to recover on a contract made and entered into between the plaintiff and defendant Lewis F. Jennings, on the 25th day of April, 1922, by the terms of which the plaintiff was to deliver to the defendant Jennings, at wholesale price, goods and other articles manufactured by the plaintiff, to be so...
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This action originated in the district court of Lincoln county, wherein Fannie McCall and Malissa McCall filed their petition against Reubin Hines, alleging Fannie McCall to be the widow and Malissa McCall the daughter of James N. McCall, deceased; that they were the only heirs of the deceased; that the deceased at the time of his death was the owner and in possession of certain lands, 20 acres, d...
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Ella Bennett, plaintiff in error and plaintiff below, brought this action against the city of Seminole, a municipal corporation, defendant in error and defendant below, in which she sought to enjoin the defendant and its officials from enforcing the provisions of a fire ordinance which had been enacted by the defendant. In the absence of the district judge from the county, she presented the same t...
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M. B. Boling, the defendant in error, as plaintiff, brought this suit in the justice court against Peter Harris, plaintiff in error, as defendant, and alleged that the defendant was the owner of a Chevrolet automobile and was an occupant thereof while the same was being driven by one Spiker on the public highway, and that Spiker negligently drove the same into a certain Star automobile belonging t...
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This appeal presents the question whether the surety on a bail bond, for a defendant in a criminal case, can recover from the defendant, without an express promise to indemnify, the amount he was obliged to pay because of the forfeiture of the bond. We think this question must be answered in the affirmative. The defendant was apprehended under a fugitive warrant. W. A. Greenwood, since deceased, w...
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This is an action by Willie Segro, an incompetent, by and through his guardian, H. M. Fender to recover possession of the northwest quarter (N.W.¼) of section twenty (29) in township 13 north, range 15 east of the Indian Meridian, Okmulgee county. It is alleged that these premises constituted the allotment of Eli Segro, a Creek citizen, now deceased; that plaintiff, then a minor, was his only h...
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This action was begun in the county court of Kiowa county by the defendant in error, Thomas J. Hill, as plaintiff, against the plaintiff in error, E. L. Hensley, as defendant. The plaintiff alleged that John C. Nass owned certain lands in Kiowa county, and that on September 22, 1925, E. L. Hensley, the defendant, entered into a written farm lease whereby the defendant leased the farm for agricultu...
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William H. Walker, plaintiff in error, as plaintiff, brought this suit in Tulsa county against William S. McCray, defendant in error, as defendant, and alleged that on the 14th day of March, 1924, the defendant made a written application for a policy of life insurance in the sum of $100,000, and attached a copy of the application to his petition. He further alleged that, in accordance with the app...
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This appeal grew out of a proceeding in the administration of the *Page 22 estate of Daniel Kelly, deceased. Daniel Kelly died intestate, a resident of Creek county, Okla., in November, 1922, and left, as his heirs at law, Thomas C. Kelly, Patrick Kelly, Mrs. Anna Caufield, Margaret Nolan, and Mary Keen, brothers and sisters of deceased, and May Kelly, Eva Kelly, Veronica Kelly, Frank Kelly, and ...
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The First National Bank of Wynona commenced this action against John N. Harlow and John N. Harlow, an incompetent, by his guardian, W. E. Browning, and against Vida Harlow upon a number of promissory notes executed by the Harlows in favor of G. E. Autry, which had been assigned by him to said bank as collateral security for certain promissory notes executed by said G. E. Autry and payable to said ...
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B. W. Mammert, plaintiff in error, as plaintiff, instituted this suit in the district court of Caddo county against Louie E. McKnight, executor of the estate of Thomas F. Woodard, defendant in error, as defendant. Thomas F. Woodard at the time of his death owned in fee simple the lands involved in this litigation. In the course of administration the executor, through the probate court, sold the la...
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John E. Carson sold and indorsed to the Night and Day Bank of Oklahoma City a note executed in his favor by James McMeachan and William L. Payne, dated June 1, 1911, for the sum of $3,110, due March 1, 1912. On June 7, 1911, the *Page 290 Night and Day Bank was declared insolvent, and taken over by the State Bank Commissioner for the purpose of winding up its affairs. On September 28, 1926, this ...
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The plaintiff, P. A. McNeal, filed his petition in the district court of Tulsa county, on March 1, 1923, to recover judgment against G. C. Stebbins and P. G. Walker, Jr., defendants, on their indorsement of 12 negotiable bonds of the Choctaw Portland Cement Company of $1,000 each, drawing *Page 41 seven per cent. interest from July, 1919. The defendants had guaranteed payment of these bonds, on m...
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This action was begun by the plaintiffs in error, as plaintiffs, in the district court of Cherokee county, to enjoin James S. Sanders, county treasurer of said county, from selling certain town lots in the city of Tahlequah for the payment of outstanding warrants issued against said lots for the construction of sewers. Plaintiffs alleged ownership of the lots affected, and that the said county tre...
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J. W. Green, the defendant in error, brought this action in the district court of Oklahoma county against E. Todd Nelson, the plaintiff in error. The action sought to recover damages for failure on the part of the defendant Nelson to have an automobile insurance policy transferred to plaintiff for his protection against loss by theft. In December, 1924, the plaintiff purchased a Chevrolet automobi...
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The plaintiff in error, as plaintiff, brought this action against the defendant in error, as defendant, in the district court of Nowata county. The action was brought to foreclose a mortgage on certain personal property to secure the payment of a promissory note. The defendant admitted the execution or the note and mortgage, but pleaded that the same had been fully paid. The plea of payment was...
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Isaac Gregory, one of the defendants in error, as plaintiff below, filed this action in the district court of Washington county to determine the heirs of Joseph Miller, deceased, and quiet title to 80 acres of land allotted the said Joseph Miller, together with certain lands, the allotment of Jacob Miller, deceased. The Jacob Miller allotment, however, is not involved in this appeal. The plaintiff...
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The contention here involved is to whom rents and profits, collected by a receiver, shall be paid. The contestants are both mortgagees and the question arises under the following facts: J. W. Couch and Louise K. Couch, on August 11, 1920, executed a first mortgage to Gum Brothers Company, in the amount of $9,800, and covering 280 acres of land located in McClain county. On the same date the same m...
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The parties to this action occupy the same position here as in the district court. The plaintiff, on November 21, 1924, brought suit in the district court of Garfield county against the defendants for an accounting and other relief. The defendants thereafter filed separate demurrers to the petition of the plaintiff. These demurrers were by the court sustained. The plaintiff elected to stand on his...
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This is an appeal from the district court of Tulsa county. United States Mortgage Trust Company, as plaintiff, brought suit against A. L. Bowles and wife, Flora Bowles, Susie Conway, Charles P. Yadon, and others. Plaintiff sought judgment on a promissory note for $9,000 executed by Bowles and wife, and for foreclosure of a first mortgage covering lots 13, 14 and 15 in block 11, Morningside additi...
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This is an original action brought in this court to review an award of the State Industrial Commission made and entered on the 24th day of August, 1927. The record discloses that on January 31, 1926, petitioner, who was in the employ of the Oklahoma Pipe Line Company, sustained an injury by being struck in the left eye with a piece of steel. A hearing was had *Page 304 upon application of petitio...
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This is an appeal from district court of Grady county. J. P. Wolverton, as plaintiff, brought suit to recover possession of a Ford truck under a chattel mortgage securing two promissory notes made October 20, 1924, one of which notes was for $150, due December 1, 1924, the other for $264, due October 1, 1925, the payment of which was secured by a chattel mortgage covering the Ford truck and also c...
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This is an action brought by plaintiff against defendants for the sum of $546.85, balance due on a promissory note, and $379.33, attorney fee. The controversy arises over the attorney fee. There is no dispute as to the balance due on the note. Prior to the filing of this suit, defendants tendered the entire amount due on the note, less the attorney fee, which tender plaintiff refused; hence this l...
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This is an action in mandamus brought by plaintiff against defendants as members of school board of school district 73, Carter county. Judgment was rendered in favor of defendants. Plaintiff appeals. It appears that on" the 28th day of November, 1921, Phillips & Stansell recovered judgment against the school district in the sum of $740.69. This judgment was subsequently assigned to the pla...
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The plaintiff in error, hereinafter referred to as the defendant, was convicted in the county court of Pontotoc county, of the crime of transporting intoxicating liquor from one point in the state to another point in the state, and his punishment fixed at 30 days in jail and a fine of $50 and all costs. Motion for new trial was filed and overruled, and exceptions saved, and the defendant has appea...
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The plaintiff in error, hereinafter referred to as the defendant, was tried in the county court of Kiowa county, on a charge of selling intoxicating liquor, was convicted, and sentenced to pay a fine of $400 and cost, and to be imprisoned in the county jail of Kiowa county for a period of 120 days. Motion for new trial was filed and overruled, exceptions saved, and the defendant has appealed to th...
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The state filed an information in the district court of Comanche county charging defendant in error with obtaining property by means and use of a false and bogus check. To this information a demurrer was interposed and sustained by the court. The state reserved the question and prosecutes this appeal. The information charges: "* * * Artis Baxley * * * did then and there willfully, unlawfully and f...
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The judgment in this cíase was affirmed on February 4. In due time a petition for rehearing was filed which has been strongly presented. This petition for rehearing, among other grounds, insists that the verdict and judgment is excessive under all the circumstances, and that justice requires that the punishment assessed should be reduced. The Assistant Attorney General, representing the state, ap...
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The plaintiffs in error Wess Davis and A. A. Davis were convicted in the county court of Carter county on a charge of having the unlawful possession of intoxicating liquor, and were each sentenced to pay a fine of $50 and to serve 30 days in the county jail. Judgment was rendered May 10, 1926, and the appeal was lodged in this' court September 1, 1926. No briefs in support of the appeal have be...
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OPINION OF THE COURT This is an action brought by A.D. Brownfield, administrator of the estate of James A. Cooper, deceased, having for its object the sale of the real estate of deceased, in order to raise funds to discharge the debts which had been allowed against the estate of [1] 3CJ p. 570 n. 44; p. 1043 n. 31; p. 1044 n. 35. *Page 465 James A. Cooper, deceased; ther...
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I concur in the result reached by the court. The point urged, that the rejected evidence was competent as tending to show the probability as to who was the aggressor, was not called to the attention of the trial court, and the evidence was not offered for such purpose. It is true that self-defense had been previously announced as one of the defenses to be relied upon; still I know of no way that ...
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The information in this case, charging defendants with the crime of burglary in the second degree under Rem. Comp. Stat., § 2579 [P.C. § 8772], alleged that James Nichols, James Campbell and Jerry Kessner ". . . on or about the 30th day of October, 1925, in Snohomish county, State of Washington, did feloniously and unlawfully break and enter a store room of the Longfellow Schoolhouse, the property...
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Respondent has moved to dismiss this appeal upon the sole ground of the failure to serve and file an abstract of the record in accordance with Rule VI of this court, which was effective as of January 1, 1924. The appellant admits the failure to prepare, serve and file an abstract in accordance with the rule mentioned, and seeks to justify its failure by advancing the argument that this court, by i...
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A per curiam opinion (In re Cross' Estate, 147 Wash. 699,266 P. 712) was filed in this case April 11, 1928, holding that, since the identical questions were involved therein that were disposed of in the companion case of In re Cross' Estate,147 Wash. 441, 266 P. 711, filed the same day, that opinion would control. The sole question decided in that case was whether the proceeds of certain war risk ...
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Both parties have appealed from an interlocutory decree adjudging the wife to be entitled to a divorce upon the expiration of the statutory six months, awarding her certain specified personal property and effects, $5,000 to be paid one half in cash and one half in six months with interest at the legal rate, *418 and as a further property settlement, the decree directs that the defendant pay to ...
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This is an action to recover damages for a breach of a contract. The plaintiffs are the owners of a small sawmill, apparently of the portable type. The defendant and his wife owned, as an estate by the entireties, 357 acres of land in Marion County: 110 acres of this tract is covered with timber consisting principally of second growth red fir. January 18, 1926, the defendant and the plaintiffs ent...
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This is an action commenced by plaintiff in error, plaintiff below, against defendant in error, defendant below, to recover the sum of $328.45, alleged to be the balance due upon an account for goods, wares and merchandise sold and delivered. A verified statement of the alleged account was attached to the petition as a part thereof. The first item on the statement was: "November 15, 1921, Bal. bro...
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In cause No. 8940, district court of Carter county, the A. B. Kirschbaum Company recovered a judgment of $1,510 against Budd Hoard Company. It was affirmed. Budd Moard Co. v. A. B. Kirschbaum Co., 115 Okla. 21, 242 P. 268. Execution was issued. Budd Hoard Company brought suit against Kirschbaum Company for defective materials furnished, etc., and secured a temporary restraining order against the e...
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Marion Sisney, plaintiff in error and plaintiff below, formerly resided in the state of Arkansas and while residing in Arkansas was legally married. Thereafter he left his wife in Arkansas and came to the state of Oklahoma and while his wife was still living, and without the dissolution of that marriage, on the 19th day of August, 1920, in Cherokee county, Okla., married Dora Welch Sisney, defenda...
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By verdict of the jury, the *Page 73 defendant in error, Fred L. Riley, herein designated as plaintiff, secured a judgment of $300 against the plaintiff in error, C. B. Whitworth, defendant below, as damages resultant of a collision of plaintiff's automobile with that of defendant. In his petition plaintiff alleged in substance as his cause of action that, with his wife, mother, and a friend, he ...
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This case was begun by W. R. Slover against the National Surety Company, a corporation, in the district court of Comanche county, to recover $200 for the alleged loss of $200.46 and one automobile tire, by the theft or embezzlement alleged to have been committed by one Willie Brown, an employee of plaintiff, who conducted a retail and wholesale gasoline filling station, and in connection therewith...
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The identical question here presented was involved in No. 18375, Thomas L. Eggleston, Sr., v. Sinclair Oil Gas Co. et al., this day decided by this court (132 Okla. 81,269 P. 306), and by stipulation of the parties, this cage was submitted on the same briefs and oral argument. The decision in Eggleston, Sr., v. Sinclair Oil Gas Co. et al., supra, is therefore controlling here, and upon authority...
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The parties will be referred to as in the trial court, reverse from which they appear here. The plaintiff began its action in this case on a promissory note in the sum of $2.552.15, dated November 30, 1918, and due May 5. 1919, on which there was indorsed a payment of $1,659.45, plaintiff asking a judgment *Page 101 for the balance due in the sum of $1,268.19, with interest and attorney's fees, t...
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The identical question here presented was involved in No. 18375, Thomas L. Eggleston, Sr., v. Sinclair Oil Gas Co. et al., this day decided by this court (132 Okla. 81,269 P. 306), and by stipulation of the parties, this case was submitted on the same briefs and oral argument. The decision in Eggleston, Sr., v. Sinclair Oil Gas Co. et al., supra, is therefore controlling here, and upon authority...
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The identical question here presented was involved in No. 18375, Thomas L. Eggleston, Sr., v. Sinclair Oil Gas Company et al., this day decided by this court (132 Okla. 81,269 P. 306), and by stipulation of the parties, this case was submitted on the same briefs and oral argument. The decision in Eggleston, Sr., v. Sinclair Oil Gas Co. et al., supra, is therefore controlling here, and upon autho...
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This action was commenced by Gertrude Rice, as plaintiff, against the city of Sayre, as defendant, in the district court of Beckham county for damages occasioned by the negligent operation of a sanitary sewer system which had its outlet in the vicinity of plaintiff's home. Defendant filed a demurrer to plaintiff's original petition which was overruled and defendant answered by general denial to th...
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Chetopa Motor Company, plaintiff in error, as plaintiff below, filed this action in the district court of Ottawa county, wherein plaintiff sought to recover personal judgment against defendant, J. E. Douglas, upon a promissory note given as balance of purchase price on a Fordson tractor, and for the foreclosure of a chattel mortgage covering the tractor and given to secure the note. The defendant,...
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The parties will be referred to in the order in which they appeared in trial court. Edward Warren, a minor, by his father, Joe Warren, as next friend, brought this action for damages for personal injuries against the Chicago, Rock Island Pacific Railway Company in district court, Marshall county, Okla. The petition alleged that plaintiff was a resident of Canadian county, Okla., in Western Judici...
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The plaintiff in error, who for brevity will be referred to as defendant, was convicted in the county court of Jackson county on a charge of a violation of the prohibitory liquor law and was sentenced to pay a fine of $200 and to serve a term of 30 days in the county jail. This case rests upon evidence procured by a search warrant. Before entering upon trial, defendant filed a motion to suppress t...
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The plaintiff in error, hereinafter called the defendant, was convicted on a charge of selling one quart of whisky to J.H. Harden, and sentenced to pay a fine of $50 and be imprisoned in the county *Page 370 jail for 30 days. The record was properly saved, and defendant has appealed from the judgment. To properly determine the questions presented, it is necessary to set out the substance of the t...
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The plaintiff in er^or, hereinafter called defendant, was convicted in the district court of Oklahoma county on a charge of larceny of an automobile, and was sentenced to serve a term of five years in the state penitentiary. Complaint is made that the court erred in his instructions 4, 5, 6, and 7. This assignment is not particularly stressed, but we have examined these instructions with care, ...
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The plaintiff in error, hereinafter referred to as the defendant, was convicted in the county court of Jefferson county, on a charge of having possession of intoxicating liquor for the purpose of selling, giving away, and otherwise disposing of the same in *Page 405 violation of the prohibitory laws; was sentenced to 90 days' imprisonment in the county jail and to pay a fine of $150. Motion for n...
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Appellant, Ab Berkley, was tried and convicted on ,an information charging that in Kiowa county on the 19th day of January, 1926, he did unlawfully have in his possession a distillery, used for the manufacture of whisky, and in accordance with the verdict of the jury was sentenced to pay a fine of $500 and to be confined in the county jail for 90 days. To reverse the judgment he appeals. Neithe...
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This is a proceeding for a writ of mandamus filed in this court on the 12th day of August, 1926, setting out that a petition to call a grand jury under the provisions of section 18, art. 2, of the state Constitution has been filed with Hon. James Hepburn, judge of the district court of Okmulgee county. Among other things, said petition for a grand jury sets out as a matter for investigation the c...
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Appellant, Harry Sledge, was convicted in the district court of Jefferson county, on a change of venue from Stephens county, of the crime of rape in the first degree, and his punishment assessed at imprisonment in the state penitentiary for a term of 35 years. Upon this appeal from the judgment rendered in pursuance of the verdict, various errors are assigned, among which is the overruling of appe...
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The plaintiff in error, hereinafter called defendant, was convicted in the county court of Okmulgee county on a charge of having the unlawful possession of whisky, and was sentenced to pay a fine of $50 and to serve 30 days in the county jail. The record discloses that defendant was a night clerk and porter at the Antlers Hotel, a rooming house in the city of Okmulgee, which was operated by one Mr...
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The plaintiff in error, hereinafter referred to as the defendant, was convicted of having illegal possession of one gallon of whisky with intent to sell, barter, give away, and otherwise furnish the same to others unlawfully, and was sentenced to pay a fine of $300 and serve a period of 90 days in the county jail. The evidence discloses that the defendant lived on a farm, and that the officers wen...
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The plaintiff in error, hereinafter referred to as the defendant, was convicted in the district court of Beckham county, on a charge of assault with intent *Page 386 to commit rape upon the person of Anna Laura Elliott, a female under the age of 16 years, and his punishment fixed at a term in the penitentiary for 5 years. The record was properly saved, and defendant has appealed from the judgment...
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It is the contention of the appellants that the county commissioners of Custer county should have complied with the 3. See 7 Cal. Jur. 511. *Page 132 provisions of Chapter 92, Session Laws of 1927, and simply directed the clerk and recorder to proceed to supply the information as provided for in said chapter, and section 2209 of the 1921 Codes; and that when such direction was made by the county ...
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On March 27, 1927, Louis D. Goodwin, a married man, received injuries during the course of, and arising out of, his employment as a miner by the Elm Orlu Mining Company, of Butte, from which injuries he later died. At the time of the injury Goodwin was receiving a wage of $4.75 per day and was working seven days a week, and at that time his wife, Winifred J. Goodwin, was not, and had for a period ...
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The plaintiffs brought this action to recover a tract of ground, about eighteen acres in extent, of which they allege they have been at all times the owners and entitled to possession, and from which they allege the defendant wrongfully ousted and ejected them in 1921, and of which she has ever since wrongfully remained in possession; plaintiffs ask to be restored to the possession of the land, an...
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Plaintiff brought this action in claim and delivery against his mortgagee and the sheriff, alleging wrongful foreclosure of a chattel mortgage. At the first trial the jury found for the sheriff, but disagreed as to the liability of the mortgagee. On the second trial, plaintiff recovered a verdict against the defendant mortgagee for the return of certain chattels or their value ($550), $300 *Page 5...
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In this appeal the plaintiff in error seeks to reverse a judgment rendered by the District Court of Fremont County, Wyoming, whereby the Farmers State Bank of Riverton, Wyoming, recovered judgment against her, in her representative capacity, in the sum of $10,971.49 together with costs. From an examination of a certified copy of the papers and the record on appeal it is disclosed that the Farmers ...
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In 1921 and 1922 the plaintiff was the lessee and in possession of 120 acres of land in Reclamation District No. 1000. In the latter part of the year 1921 he seeded the land with barley. On the ninth day of February, 1922, the crop was about two inches high. On that day a heavy rainstorm started and continued for three or four days. On February 12th one of the drainage ditches of the district loca...
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THE COURT. The petition for a hearing in this court after decision by the district court of appeal, second appellate district, division two, was granted. Further consideration of the record and of the points involved has persuaded us of the correctness of the conclusions expressed by the district court of appeal. We therefore adopt the opinion of the district court of appeal, of which Mr. Justice ...
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We are satisfied with the conclusion of the learned district court of appeal in this cause and adopt a part of its opinion herein: "This is an action in damages for deceit. Judgment was entered against defendant for $3,958.33 and costs on the verdict of a jury. Defendant moved for a new trial, his motion was granted and plaintiff appealed. "In his second amended complaint plaintiff alleged that he...
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This appeal is from a judgment in favor of the defendants after a directed verdict given and made by order of the court on motion of the defendants at the close of the trial. The action was one to recover damages for injuries sustained by plaintiff while walking upon a wooden driveway superimposed upon the sidewalk in front of the property owned by the defendant Mary J. Claasen, and at the time of...
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This is the second appeal in this action. Our decision of the first appeal will be found reported in 199 Cal. 318 [249 P. 197], where the facts of the case are fully stated, and for that reason it will not be necessary to repeat them here. At the first trial of this action judgment was rendered in favor of plaintiff, which judgment was reversed by this court. On the going down of the remittitur th...
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This, the third appeal in the above-entitled cause, is from an order made on July 10, 1925, on motion of plaintiff, appointing a receiver pendente lite. The order confers power upon the receiver to collect what is termed "mesne profits," which is therein interpreted to mean a conferring of power upon said receiver to substitute himself for the defendant and secure and keep, pending further order o...
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This is an appeal from an order dismissing, for want of prosecution, an action to enforce a mechanic's lien. *Page 596 The defendant Woulfe is the owner in fee of certain lots in the Vista Del Mar Tract, in the county of Orange. On June 1, 1921, he entered into an oil and gas lease with the defendant Robert M. Pease. By assignment this lease came into the hands of the defendant Malis Aldahl Syndi...
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This is an appeal from a judgment of conviction and from an order denying a motion for a new trial. In January, 1927, the defendant was indicted on twelve counts, four for grand larceny, four for obtaining property by false pretenses and four for embezzlement. Four transactions only were involved, each one of the four being pleaded three ways and charging a different offense. The trial court susta...
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Action in equity to establish the provisions of a joint and mutual will made by husband and wife. The case was before this court upon a former appeal taken from a decree of distribution in the matter of the estate of John Rolls, deceased. Two questions were there involved – one as to whether the assets of the estate were separate or community property, the other concerned the revocability of the j...
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This action was brought to recover damages growing out of the sale on March 24, 1922, by defendant to plaintiff of a used 80-horsepower return tubular boiler. The complaint, as finally amended, in substance alleged that prior to March 10, 1922, plaintiff informed defendant that he was about to enter into a contract with a customer, viz., Leal Sons Lumber Company, for the sale to said company of o...
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[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 128 Plaintiff, on behalf of himself and some two hundred associates, sued in replevin to recover four Liberty bonds, the property of the members of the San Francisco Lodge Number 198 of the Brotherhood of Railroad Trainmen, prior to its dissolution. By order ...
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MEMORANDUM CASES. Action in assumpsit to recover fifteen hundred dollars held by the defendant bank on deposit for the members of Local 198, Brotherhood of Railroad Trainmen. Before trial the money was deposited in court and is held there, awaiting distribution. A complaint in intervention was filed on behalf of a minority of the former members of Local 198 and the trial co...
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The defendants Kenneth George, Edward McSorley, and Carl J. Stanley were jointly charged by an information, containing two counts, with grand theft and also with the offense of violating section 146 of the California Vehicle Act, which section provides that "Any person who shall drive a vehicle not his own, without the consent of the owner thereof and in the absence of the owner, and with intent t...
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[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 99 This action was brought by plaintiffs, respondents-appellants, hereinafter referred to as the Stanleys, against the defendant, appellant-respondent, hereinafter referred to as Westover, to set aside a judgment rendered by the superior court in and for the ...
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This action was brought by plaintiff, respondent-appellant, under the provisions of an Act to provide for the Establishment and Quieting Title to Real Property in Case of Loss or Destruction of the Public Records, approved June 16, 1906, and commonly known as the McEnerney Act. (Stats. 1906 [Ex. Sess.], p. 78.) The plaintiff will be hereinafter referred to as Westover and the defendants as the Sta...
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Defendant was found guilty by a jury of the crime of being a persistent violator of title 54, Compiled Laws of Utah, 1917, and acts amendatory thereof, or of what is commonly known as the Prohibition Act. He was thereafter sentenced to serve an indeterminate term of imprisonment in the Utah State Prison, as provided by law. This Corpus Juris-Cyc. References: [1] Intoxicating Liquors 33 C.J. p. 761...
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The defendant was convicted of the crime of rape and sentenced to serve an indeterminate term in the state prison. He appeals. After the jury had been impaneled to try this cause counsel for defendant requested that an order be made excluding from the courtroom all of the witnesses except the one testifying. Thereupon the prosecuting attorney stated that the sister of the prosecutrix might become ...
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The plaintiff brought this suit against the defendant Soren Jensen for a divorce. The complaint is founded on cruelty and failure to provide. The defendant Jensen answered, and filed a cross-complaint against the plaintiff. In his cross-complaint Jensen seeks a divorce from the plaintiff on account of her alleged cruelty towards him. The plaintiff answered the cross-complaint, denying any acts of ...
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This is a controversy between divorced parents over the custody of their minor child, Raymond George Alley, a boy now nearly five years of age. The parents were married on September 9, 1922. The child was born October 16, 1923. On May 2, 1925, the plaintiff brought an action against his wife, the defendant, for a divorce upon the grounds of cruelty. The defendant waived time to plead and suffered ...
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The state having alleged forgery, with intent to defraud, the appellant contends that the trial court should have required the state to prove that the check passed upon the Golden Hotel was in fact a forgery. Forgery is defined by section 6633, Revised Laws of Nevada, 1912, and it was under this section that the State of Nevada proceeded to prosecute the defendant. And there was no evidence of any...
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In Banc. ON OBJECTIONS TO COST BILL. (For Opinion on the Merits, see 125 Or. 598.) This cause came on for hearing on the separate cross-bills filed by respondent The First National Bank of Portland and respondents F.A. Douty and Multnomah Lumber Box Company. Appellants R.C. Bell and H.B. A. Logging Company object to the cost bill filed by the plaintiff-respondent The First Nat...
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Plaintiff sued defendant for damages on account of personal injuries received in an automobile accident. Plaintiff was riding as the guest of defendant when a collision occurred between his car and a car driven by Willie George. Defendant was returning from Enterprise to Wallowa. Willie George was driving from Wallowa toward Enterprise. The two cars collided on a curve a few miles north of Enterpr...
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— Respondent as plaintiff brought this action to recover the cash surrender value of a certain policy of life insurance issued on his life by the appellant. His former wife, Frances Mende, was made a party defendant in the action for the purpose of determining and excluding any possible interest which she might have in the policy or its proceeds. She, not being found in the state, proper service ...
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The plaintiff brought this action to recover hack the purchase price paid for ten barrels of shellac shipped him by the defendant. In its cross-complaint, the defendant sought recovery against the plaintiff for a second shipment of shellac which he declined to accept. While the action was pending, the plaintiff George Feige died and Elizabeth Johanna Feige, the executrix of his estate, was substi...
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Respondent sued to recover of appellant the sum of $1,920.75, the balance due upon the sale of a set of radio equipment installed in an apartment house belonging to F.F. Travis in Tacoma, for which the lower court gave respondent judgment. The contract price of the radio equipment was $3,051.85. $551.85 was agreed to be paid in cash as an initial payment and the balance to be paid in monthly insta...
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The opinion of the court was delivered by This is an appeal from a judgment of the district court of Douglas' county, in which plaintiff’s application for a writ of mandamus to compel the county clerk to print plaintiff’s name on the primary election ballot as a candidate for the Republican nomination for sheriff was denied. The ground of the county clerk’s refusal was that plaintiff’s *577declara...
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While discharging his duty as an employee of E. Payne Palmer, doing business *Page 205 under the name of Vanadium Mining Company, William L. Connor was killed on October 18, 1926, in an accident arising out of and occurring in his employment. Both the employer and employee were subject to the Workmen's Compensation Law of this state, and the carrier of the insurance was the Home Accident Insuranc...
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The plaintiff in error, who for brevity will be referred to as defendant, was convicted in the county court of Jackson county on a charge of having the unlawful possession of intoxicating liquor, and was sentenced to pay a fine of $150 and to serve 50 days in the county jail. The appeal seeks to raise the question that the conviction was procured by evidence obtained by an illegal search warrant. ...
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The plaintiff in error, hereinafter called the defendant, was convicted in the county court of Jefferson county on a charge of having possession of intoxicating liquor for the purpose of selling, giving away, and otherwise disposing of the same in violation of the prohibitory liquor laws, was sentenced to 90 days’ imprisonment and to pay a fine of $150, perfected the record, and has appealed to t...
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The plaintiff in error was convicted in the district court of Creek county on a charge of manslaughter in the first degree, and was sentenced to serve a term of ten years in the state penitentiary. The judgment was rendered in October, 1925, and the appeal lodged in this court in March, 1926. No briefs in support of the appeal have been filed, nor was any appearance for oral argument made at th...
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The plaintiffs in error, hereinafter called defendants, were convicted in the county court of Kiowa county on a charge of transporting whisky, and were each sentenced to pay a fine of $100 and to serve 30 days in the county jail. The only assignment of error argued is that the evidence is insufficient to sustain the verdict and judgment. The record discloses a state of facts about as follows: On t...
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The plaintiff in error, hereinafter called defendant, was convicted in the district court of Le Flore county of manslaughter in the first degree, and his punishment fixed at confinement for four years in the state penitentiary. The record discloses that at the time charged defendant shot and killed one Ed Melton. The sufficiency of the evidence to sustain the verdict and judgment is not challenged...
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The plaintiff in error was convicted in the county court of Nowata county on a charge of having *Page 421 the possession of a still, and was sentenced to pay a fine of $150 and to serve 30 days in the county jail. No notice of appeal, as required by section 2809, Comp. Stat. 1921, was served. There appears in the record a written notice of appeal, stating that plaintiff in error serves notice in ...
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Joe Massey, an employee of the Denver Rio Grande Western Railroad Company, was killed in an automobile accident on Main street in the city of Price, Utah, on the morning of November 20, 1926, while on his way to work. In proceedings before it, the Industrial Commission, under the Workmen's Compensation Act (Comp. Laws 1917, §§ 3061-3165), made an award of compensation against the employer in favo...
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Review of an order of the Industrial Commission. On June 17, 1926, Mary R. Robinson filed with the Industrial Commission an application for an adjustment of her claim for compensation by reason of the death of her son Leo Robinson. Subsequently the application was amended by claiming compensation for a minor brother of the deceased. Deceased was unmarried. His mother was a widow, and hence his sol...
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The defendant, John De Angeles, was charged jointly with Mike De Angeles, and Nick Galanis with feloniously setting fire to a certain stock of merchandise, the property of John De Angeles, with intent to defraud certain insurance companies. Mike De Angeles and Nick Galanis were tried separately and acquitted. The offense was charged to have been committed on March 13, 1926, in the city of Price, C...
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This action involves the rights of possession of a certain automobile described in the complaint and also described in the answer. The plaintiff, respondent here, bases its right to the possession of the automobile by virtue of a certain chattel mortgage executed by Casperson & Snyder, Inc., admittedly the owners of the automobile at the date of the execution of the mortgage. The cause was trie...
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A rehearing of this case was granted for the reason that this court desired to consider, before the final determination of this appeal and in connection with it, the case of Stewart v.Stewart, then pending on its second appeal to this court, and in which many of the same questions were involved as are presented by the appeal in the *Page 559 present proceeding. The decision of this court on the s...
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THE COURT. [1] Petitioners filed an application for a writ of mandate to compel the respondent to settle a proposed bill of exceptions preparatory to an appeal from a judgment against sureties on an appeal bond entered on motion after the affirmance of the judgment appealed from. (Code Civ. Proc., sec. 942.) From the facts alleged in the petition for the writ it appears that, on timely motion, the...
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This is an appeal by the plaintiffs from an order taxing costs. *Page 7 The main action is one to determine conflicting claims to water rights. It was commenced on July 15, 1916. Upon issue joined two trials were had. The first trial was commenced on October 16, 1917, before the Honorable W.B. Wallace, since deceased. After the cause was submitted for decision the court indicated that judgment wo...
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This appeal is from a judgment in favor of plaintiff and against defendants. The defendant Doolittle alone has appealed, and filed a brief in support of his contention that the judgment is erroneous. No appearance herein has been made by the respondent, and we have not been favored by any brief or points and authorities in her behalf. [1] The sole contention of appellant is that the evidence is no...
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Action by plaintiffs to recover damages for the death of their minor son, Dan Marchetti. The defendants Duree and Adair were the engineer and fireman, respectively, in charge of the train of the defendant the Southern Pacific Company at the time of the collision which resulted in the death of plaintiffs' son. The deceased at the time of his death was eighteen years of age, and was then and for som...
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Motion to dismiss appeal for alleged failure to file, within the time required by Penal Code, section 1247, statement of grounds of appeal. *Page 679 [1] Judgment was imposed on defendant on November 16, 1927. On November 21, 1927, the court gave and made an order directing the preparation of clerk's and reporter's transcripts, which recited therein that the required statement above referred to ...
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Suit to enjoin and to restrain defendant corporation from disposing of certain shares of stock in a water system and the water and water rights represented thereby. *Page 648 [1] The complaint is somewhat voluminous. The facts show that in 1902 defendant, Empire Water Company, hereinafter designated as the Water Company, acquired certain water rights and a system of irrigation and diverted from ...
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Action brought to recover the amount due on a promissory note, given as part payment of certain real property sold by the plaintiff to the defendant E.H. Miller, who will be referred to hereafter as the defendant. Alice A. Miller, the other defendant, is his wife, and her only interest in said real property is by reason of this relationship. *Page 23 By an amended answer and cross-complaint defen...
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Action against the City of Sacramento and its officers by a property owner of said City to enjoin the enforcement of a zoning ordinance enacted by the city council of said City. A general demurrer to plaintiff's complaint was sustained by the trial court, and upon her refusal to amend said complaint the court entered its judgment in favor of defendants. From this judgment plaintiff has appealed. T...
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Certiorari to review an award of the Industrial Accident Commission in favor of Ida M. Dracket and against Fred S. Moody. Briefly, the facts are that petitioner, Fred S. Moody, while suffering from an infection, which caused a high fever and delirium, was ordered sent to the hospital by his physician, who requested the hospital to assign petitioner a room, to prepare the operating room, and to cal...
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This is an appeal by the defendant, Charles Amador, from a judgment entered against all of the defendants, perpetually enjoining and restraining them, their servants, agents, and employees, and all persons acting in privity with them from, (a) disposing of, advertising or dealing in a motion picture called "The Race Track"; (b) from using the name "Charles Aplin" or "Charlie Aplin," or any other n...
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This is an application for a writ of prohibition to prevent the respondent judge from sentencing petitioner for contempt of court. In an action for divorce wherein the petitioner was defendant he was ordered, on December 1, 1926, to pay to the plaintiff in that action (he having stipulated that the order might be made) as permanent alimony the sum of $750 per month and the further sum of $250 per ...
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In the lower court each of the three defendants was charged in each of two counts in the information with the commission of the crime of robbery. On the trial each of the defendants was convicted on the first count; while as to the second count, defendant Melendez only was convicted. The appeals herein are from the several judgments and orders denying the motions for a new trial. [1] The defense c...
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This matter is before us upon an application for a writ of review seeking an order of this court annulling and setting aside that portion of a judgment entered in respondent court on the ninth day of February, 1928, wherein it was adjudged that neither party to the action hereinafter named should recover costs. *149 The record shows that on or about the fourth day of March, 1927, one Harry W....
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This is an appeal from the judgment declaring a certain deed executed by respondent to his daughter, Mary Ann Fullerton, one of the defendants, to be null and void, and from the order denying defendants’ motion for a new trial. The defendant Jesse B. Fullerton is the husband of the defendant Mary Ann Fullerton. Since the trial of this action the said Mary Ann Fullerton has died and this appeal is...
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This is an appeal by defendant Escondido Citrus Union, a corporation, from a judgment entered against it upon a verdict of a jury in the sum of $2,250. Plaintiff brought this action for damages, charging that his lemon orchard was damaged by being fumigated by the agents of defendant in a careless and negligent manner and under unfavorable climatic conditions. The defendant and appellant is a Cali...
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The petitioners herein pray a writ of supersedeas to restrain the Superior Court of Los Angeles County from enforcing a decree directing the Bandini Petroleum Company to permit respondent Hartman to inspect and make notes from its corporate books and records, and from enforcing an order to show cause why petitioners should not be held in contempt of court for refusing to comply with such decree. I...
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On the night of February 3, 1928, at about 9:30 o ’clock, appellant, while driving an automobile in a southerly direction on Vermont Avenue, near Forty-eighth Street, in the city of Los Angeles, struck Mrs. Florence Gillette and a lady companion, and ran over them, as a result of which the former died almost instantly. He was charged by information, consisting of three counts, with (1) manslaught...
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The plaintiff and the defendant are husband and wife. This is a suit by the plaintiff for a divorce from the defendant on the ground of wilful desertion. The complaint, which was filed on the tenth day of September, 1924, after alleging the fact of the intermarriage of the parties in January, 1917, and the fact of the plaintiff's residence in the state of California and of the county of Los Angele...
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This appeal involved three actions brought by the plaintiff to foreclose three separate mortgages and actions by the defendant Hammond Lumber Company, a corporation, and C.B. Kahl to foreclose certain liens. Judgment was entered covering the respective cases establishing the priority of the mechanic's lien. From this judgment the plaintiff Bank of Italy, as administrator, and Harshman appeal. All ...
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An action in equity was commenced entitled The Knights of theKu Klux Klan (a Corporation) v. Leon C. Francis et al. A temporary restraining order was taken out. To obtain the restraining order, the plaintiff gave an undertaking in the sum of $500, which was executed and delivered by this defendant. Later the action was dismissed and one of the defendants in that action commenced this action to rec...
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The trial of this cause was had by a department of the superior court of Los Angeles County, sitting at Long Beach, a city within Los Angeles County. The appellant E.C. Redman objected to a trial by the said court, sitting at Long Beach, contending that section 142 of the Code of Civil Procedure, as that section was amended in the year 1925 [Stats. 1925, p. 218, sec. 2], is unconstitutional and vo...
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THIS case is before us on review of a statutory adjudication of water rights in water district No. 17, irrigation division No. 2. The sole parties to the case in this court are the Holbrook Irrigation District and The Fort Lyon Canal Company, hereinafter respectively designated as the district or the Holbrook district, and the company. The district sued out a writ of error to review that part of t...
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GALLIGAN, plaintiff below, plaintiff in error, brought this action and had judgment against the defendant corporation for $2,000, which the plaintiff alleges the defendant promised to pay him in two matured benefit certificates which the defendant had issued to him and on which he had paid to the defendant the prescribed payments or assessments that entitled him, under the contract of insurance or...
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Plaintiff, a banking corporation of Mackay, brings this suit against D. W. Standrod and D. L. Evans, who were two of its five directors, to recover from them damages consisting of losses incurred by plaintiff through what is alleged to be fraudulent conduct of defendants as such directors. Defendants were directors not only of plaintiff bank, but of another banking corporation known as D. W. Stand...
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The parties intermarried on November 7, 1925. On October 28, 1926, appellant brought this action for divorce on the ground of extreme cruelty, asking for partition of the community property, permanent alimony and attorney's fees. Decree was entered granting the prayer for divorce, awarding appellant $500 permanent alimony, $250 attorney's fees and one-half the community property. She appeals from ...
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Respondent brought this action for damages for the removal of a house situate on lot 6 of block 33, Parker townsite, Fremont county, Idaho. The complaint alleges respondent is the owner of said lot 6; that prior to the, wrongful acts complained of there was a certain dwelling-house on, and attached to, said lot, the property of plaintiff; that on or about October 12, 1923, against her will, defend...
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Application for a writ of certiorari. Under our practice and by statute (C. S., sec. 7242) such writ is denominated "writ of review." Writ issued to review action of the Honorable Robert M. Terrell, one of the judges of the district court of the fifth judicial district, in appointing a receiver in an action pending before him to foreclose a real estate mortgage, in which action plaintiff here is o...
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Plaintiff herein petitions for a writ of review challenging the action of the district court and the judge thereof in appointing a receiver in a foreclosure action brought by one Williams on a second mortgage against plaintiff herein and others. Plaintiff in the foreclosure action, in his petition for a receivership, stated that certain moneys had been paid on a first mortgage to the Federal Land ...
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Plaintiff brought this action to enjoin the defendant, Commissioner of Law Enforcement, from enforcing against him chapter 197 of the Laws of 1925, as amended by chapter 237 of the Laws of 1927, and requiring him to furnish property damage insurance or surety bond upon each vehicle operated by him, and the payment of permit and license fees thereunder as an auto transportation company. Defendant a...
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Appellants, judgment creditors of the corporation hereinafter mentioned, brought this action to subject an unpaid preferred stock subscription to the payment of their judgment. The trial court sustained a demurrer to the complaint upon the ground that the statute of limitation had run against any recovery. The complaint alleges that plaintiffs are husband and wife; that the Ashton & St. Anthony Po...
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Action by corporate creditor to recover the unpaid portion of par value of preferred stock. While the number of shares and the defendant are different, the dates and facts alleged in this action, in all essentials, are the same as in Ellis v.Capps (No. 4955), ante, p. 606, 269 P. 597. The two complaints are the same, and identical demurrers were interposed as to each. The demurrers were heard and ...
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Section 728 of Rev. Laws defines a dependent and delinquent child. Section 731 provides for the filing of a petition in writing which shall set forth four allegations. Section 736 provides: "If the court find a child delinquent, the court may allow it to remain in its own home, make reports," etc.; but before committing to any other place, the statute provides that the court shall find all of the ...
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In England, and in every state in the United States except Pennsylvania, where the point has been decided, it has been consistently held that a vendee under a conditional sale contract has no interest in the property sold that could be levied upon under execution or attachment. Some of the authorities so holding are: Barrett v. Pritchard, 2 Pick. (Mass.) 512, 13 Am. Dec. 449; Strong v. Taylor, 2 H...
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The notes being given for a stated purpose, and no liability being proven or attempted to be proven as set forth in the "Deposits" clauses in the agreements, we *Page 101 maintain that the said notes, and each of them, are in fact null, void and of no effect, and should have been so declared by the lower court. The plaintiff laid a foundation for the purpose of, and made efforts to go into the it...
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There can be no doubt that it was not only within the power of the county commissioners to make answer to the writ of garnishment, but that it was their statutory duty, imposed by law, so to do. When in the performance of such statutory duty said commissioners made what turned out afterward to be a misstatement of fact, such act was not an act in excess of their power, but a mistake in the exercis...
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This is an appeal by the plaintiff from a judgment in favor of the defendant, C. S. Mead, on his cross-complaint in an action in claim and delivery. The defendant and cross-complainant was a distributor of Chevrolet automobiles in Pasadena. One I. H. Weaver was a retail automobile dealer located at San Gabriel. The plaintiff was engaged, among other activities, in purchasing and financing contr...
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THE COURT. This appeal was decided in department and thereafter a motion to hear the same in bank was granted. At the time of the granting of said motion we were in doubt as to the correctness of that portion of the department opinion which held that the judgment was valid, notwithstanding it exceeded the amount alleged in the complaint to be due from the defendants. [1] By the complaint the plain...
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[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 572 THE COURT. This action to quiet title and to set aside a trustees' sale and deed covering certain real property was instituted in March, 1924, approximately five years subsequent to such sale. The trial court found all material issues in favor of the defe...
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On April 30, 1925, under the trade name of Aristocrat Distributing Company, one J.B. Vallen entered into a contract in writing with Chas. A. Merritt and Chas. A. Parlier, a copartnership, doing business under the *Page 674 name of Merritt and Parlier, with reference to the sale and delivery by the former to the latter of a certain number of dishwashing machines. The contract need not here be set ...
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[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 611 This is an appeal by the defendants from an order granting the plaintiff's motion for a new trial. The motion was made on the usual statutory grounds and was based on affidavits purporting to set forth newly discovered evidence. The order did not specify ...
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Action to quiet title to real property. W.G. Logan and Elsie M. Logan were at all of the times herein mentioned husband and wife. On the twenty-seventh day of January, 1919, as such husband and wife, they entered into an agreement with Elmer and Georgia M. Smith, whereby they contracted to purchase said real property from the *Page 27 Smiths. This agreement was somewhat complicated, but it is not...
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This appeal is from a judgment of conviction of the defendant upon a charge of murder in the first degree, based upon the verdict of the jury finding him guilty of that offense without recommendation, and from an order denying the defendant a new trial. The undisputed evidence in the case showed that the defendant and his victim were husband and wife and that they had been separated some time befo...
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[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 655 This is a proceeding wherein the City of Pasadena, a municipal corporation, applies for a writ of mandate directed to the respondent, as the city clerk of said City, requiring her, in her official capacity, to certify to the passage and content of a certa...
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Appeal by defendant Addie I. Tryon from an order refusing to change the place of trial from the county of Sacramento to the city and county of San Francisco. She supports her demand by an affidavit of merits containing the averment that she is a resident of the city and county of San Francisco. Defendant E.H. Tryon consented to the making of said application by his co-defendant. The defendant Brow...
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This appeal is from a judgment in favor of the defendants after motion for nonsuit granted. The plaintiff was employed as an agricultural laborer by the defendants, and during and in the course of his employment was directed to assist others who were engaged in clearing out chicken manure from a chicken-house and placing the same in boxes, which boxes, having been placed upon a wheelbarrow, the p...
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Grant MeOartney was, on the twenty-eighth day of December, 1923, and for some years prior thereto had been, a licensed real estate broker under the provisions of an act of the legislature of this state (Stats. 1919, p. 1252). On that day the plaintiff deposited with him the sum of two thousand dollars, which sum of money he was to use in making the first payment on a piece of real *35 property ...
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[1] This appeal is from an order of the superior court of the city and county of San Francisco granting the motion of the plaintiff and cross-defendant to set aside an order of said court entering the default of said plaintiff and cross-defendant for failure to answer the cross-complaint, and from the further order of said court dismissing the action on the ground of failure on the part of the pla...
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[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 620 The plaintiff herein appeals from a judgment rendered and entered after a directed verdict in the defendant's favor. The action is one for the recovery of both general and special damages for the breach of the *Page 621 implied covenant of quiet enjoymen...
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This is an appeal by the plaintiff from a judgment against him in an action in which he sought damages for breach of an alleged implied warranty of title and of quiet enjoyment, made by his lessors, the defendants herein. Plaintiff leased from defendants a certain piece of real property, for a term of ten years, at a stated consideration of $25 per month for the first seven years of the term and $...
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THE COURT. [1] The respondents move to affirm the judgment appealed from upon the ground that the appellant has failed to print in her opening brief or any supplement thereto, in accordance with the requirements of section 953c of the Code of Civil Procedure, any part of the record herein sufficient to justify a reversal of said judgment. At the time of the filing of respondents' notice of motion ...
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The Crestmore tract is a real estate subdivision situated in the city of Los Angeles, containing a large number of lots, the exact number of which is not shown by the record, but it is apparent that they exceed sixty in number. All the lots in said tract had been originally sold subject to restrictions against subsequent sale to or occupancy by persons other than those of the Caucasian race. These...
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[1] The following statement of facts will be taken as a basis for the decision: The trial of a case entitled People v.Albori was in progress. The petitioner herein was called as a witness and was sworn to testify. As his examination progressed he refused to answer some of the questions upon the ground that to do so might tend to incriminate him. Upon such objection being made to answering certain ...
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[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 457 Pursuant to verdict of the jury, judgment was entered in favor of the plaintiffs against defendant Atwell Land Company in the sum of $10,000 and against the defendant John W. Childress in the sum of $9,997, and against two other defendants in the sum of o...
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[1] Heretofore the state highway commission awarded a contract to Freeman Whiting to build a portion of the state highway located in San Mateo County. Pursuant to the provisions of chapter 303, Statutes of 1919, the contractors, as principals, and the American Indemnity Company, as surety, executed to the state of California a bond. The bond was in all respects as provided by the statute. Thereaf...
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[1] Except as to the amounts the facts are parallel with the facts in the case of Granite Rock Co. v. Freeman et al.,ante, p. 507 [269 P. 668. For the reasons there stated the judgment is affirmed. Nourse, J., and Buck, P.J., pro tem., concurred. *Page 1 ...
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Except as to the amounts the facts are parallel with the facts in the case of Granite Rock Co. v. Freeman et al., ante, p. 507 [269 Pac. 668. For the reasons there stated the judgment is affirmed. Nourse, J., and Buck, P. J., pro tem., concurred....
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The district attorney filed an information against the defendant, charging him with having violated the provisions of chapter 277, Statutes of 1927 – the unlawful possession of a still intended for the manufacture of intoxicating liquor for beverage purposes. The defendant was tried before the trial court sitting with a jury. The jury returned a verdict against the defendant and from a judgment en...
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The appellant was charged by information with robbery by force and fear, was convicted of robbery in the first degree, and his motion for a new trial having *Page 260 been denied, appeals from the judgment and order denying said motion. [1] It is conceded that on or about November 19, 1926, appellant and two other men went to the home of one Nick Zitko, in the city of Los Angeles, and unlawfully ...
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In this action plaintiff seeks injunctive relief to secure the benefits to which it alleges itself entitled under a certain written contract. As a part of the same action plaintiff asks the court to declare the legal rights and duties of the respective parties under the said contract. The court below denied the injunctive relief sought and declined to enter any declaratory judgment. The plaintiff ...
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Two actions were brought, one by Elizabeth Riedy and Tom Riedy, husband and wife, against George M. Bidwell, and the other by Charles Cook against George M. Bidwell. The former is to recover $12,250.92, based upon two causes of action, one for services alleged to have been rendered by plaintiff Elizabeth Riedy and the other on an assigned claim of E.M. Tinney, both causes of action being based upo...
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On May 19, 1923, one Estanislao Martinez was killed at Wilmington, Los Angeles County, by the alleged negligence of the defendant Pacific Electric Railway Company. Within one year thereafter, and on May 7, 1924, Maria de Los Angeles Lopez filed her complaint in the superior court of Los Angeles County for damages in the sum of fifteen thousand dollars, she claiming to be the widow and the sole hei...
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Defendant appeals from a judgment of conviction of the crime of robbery and from an order denying her motion for a new trial. [1] The first point advanced by appellant is that the verdict is contrary to the evidence. In that connection it is contended that the testimony by which the identification of defendant as the robber was established was so weak and unsatisfactory that "there is no evidence ...
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This is an appeal from a judgment revoking letters of guardianship of the person and estate of Thomas Dudley Arkle, a minor, issued to Maggiebelle Drake, the maternal grandmother of such minor, and also from the order of the court appointing Alwyn W. Arkle, the father, as guardian. Respondent Alwyn W. Arkle and Whitney Lee Arkle intermarried October 14, 1920, at Paris, Kentucky, and a son, Thomas ...
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The plaintiff G.C. De Garmo purchased from defendant corporation 200 shares of its capital stock for which he paid $20,000. This is an action by plaintiff to rescind that purchase on the ground of fraud and misrepresentations. The case was tried before the court sitting without a jury, and findings and judgment were in favor of defendant, from which judgment plaintiff prosecutes this appeal. Appel...
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This is an appeal by the People from an order granting defendant's motion for a new trial. The grounds urged for reversal are that at the time the motion was granted the trial court was without jurisdiction to hear or determine the same, and that even though jurisdiction did exist to entertain the motion, the granting of the same constituted an abuse of discretion. The facts are as follows: The de...
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The defendants were indicted by the grand jury of Los Angeles County charged in count I with the crime of murder and in count II with burglary. They were all found guilty of both offenses and prosecute this appeal from the judgments pronounced upon the verdict and also from the order denying their motion for a new trial. [1] The principal contention advanced by appellants is that the evidence is i...
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The opinion and decision of this court in the above-entitled cause having been rendered on July 28, 1928, the final paragraph thereof reading as follows: “We have concluded that the judgment in this case should be reversed and the case remanded for a new trial, unless the respondent shall, within twenty days from the date of the filing of this opinion, file in this court a remittitur of all *346da...
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The plaintiff commenced an action to recover compensation for services as an attorney at law rendered in behalf of the defendants before the Interstate Commerce Commission. The defendants appeared and answered. *Page 527 The plaintiff interposed a demurrer to the answer; it was sustained, and the defendants were given permission to amend within 10 days. They did not amend, and thereafter a judgme...
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[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 372 In this action plaintiff prays judgment against defendants in the sum of $20,302.28, and defendants Shirley E. Meserve, Robert B. Moran, and T. Howard Knight, individually and as trustees of an express trust, by way of cross-complaint pray judgment agains...
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Petitioner was tried on an information framed in two counts – burglary and grand larceny. The jury rendered its verdict finding him guilty on both counts and fixing the degree of burglary under the first count as of the first degree. The trial judge, in entering judgment, sentenced the petitioner on both counts in accord with the verdict of the jury, but appended an order purporting to find that p...
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Respondent St. Clair was injured while starting an automobile in his vocation of delivering ice at Huntington Park * in Los Angeles County. He made application to the respondent Commission for compensation as against J. G. Knox and George Klebe, and after a hearing was awarded certain sums of money in cash and in weekly payments until the termination of disability, besides a hospital charge and...
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The defendant and appellant L. Nikolich, together with the defendant George T. Vidich, was convicted of possessing a still, used and intended to be used in the manufacture and production of intoxicating liquors for beverage purposes. Nikolich prosecutes this *Page 357 appeal from the judgment pronounced upon the verdict of the jury finding him guilty. The sole ground relied upon by appellant for ...
Views: 14
Plaintiff sued to recover possession of land, claiming a forfeiture of a condition subsequent contained in the deed of conveyance. The cause was tried before the court sitting without a jury and resulted in a judgment for the defendant, from which the plaintiff appeals upon a typewritten record. [1] The condition which it was claimed had been breached was attached by the common grantor of a large ...
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The respondent was accused by the grand jury of Los Angeles County with the crime of murder, was convicted by a jury, and the judgment was reversed. (People v. Westcott, 86 Cal. App. 298 [260 P. 901].) Upon a second trial he was again convicted, the jury recommending imprisonment for life, whereupon he moved for a new trial, which was granted, and the People now appeal from the order granting such...
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Appellant was charged with murder, and upon trial was convicted of the crime of manslaughter. He now seeks a reversal of the judgment of conviction upon the sole ground that the evidence is not sufficient to sustain the verdict. About 8 o'clock on the evening of October 23, 1927, the deceased, Antonio Mariscal, was stabbed in the neck and died instantly. The homicide occurred on a public street in...
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This is an original petition seeking a writ of supersedeas, directed to respondent, staying the hearing of an appeal from the municipal court of Los Angeles to the Superior Court, entitledAlexander et al. v. Taylor et al. The unusual situation presented is as follows: Alexander and Nathan, copartners, recovered judgment in the municipal court against Taylor and his wife, defendants in that action ...
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But one question is presented for determination in this proceeding. It is necessary for us to decide whether or not under the circumstances recorded the trial court made a formal order denying a motion for a new trial. Since we conclude that no such action was taken, there is no occasion for discussing other points argued. From the recitals of the petition and from the statement of the judge who t...
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The plaintiffs commenced an action against the defendants to recover money. They were given judgment against one of the defendants and that defendant has appealed. They were refused judgment against the other defendants and from that portion of the judgment the plaintiffs have appealed. The plaintiffs pleaded their claim in three separate counts. On the third count neither party introduced any evi...
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The respondent Helen C. Shaffer was injured while soliciting prospective purchasers of real estate in the city of Los Angeles, on October 20, 1927, as an employee of the Beeman and Rice Realty Company. She made application to the division of industrial accidents and safety, and after a hearing the Commission awarded $192.50 hospital expenses at $3.50 per day, and allowed the applicant $11.12 per w...
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The petitioner in this case was arrested on May 7, 1928, charged with possession of intoxicating liquors in violation of the Wright Act [Stats. 1921, p. 79]. On May 11, 1928, he plead guilty to this charge and by judgment of the municipal court was ordered confined in the city jail for a period of thirty days or in lieu thereof to pay a fine of $300. On May 10th, after his arrest on the misdemeano...
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This is an action in claim and delivery for the redelivery to the possession of the plaintiff by the defendant of 370 tons of dried French prunes and 80 1/2 tons of dried Muir peaches, of the alleged approximate aggregate value of $70,000, or in case such redelivery is not had or cannot be made, that plaintiff be awarded judgment in the said sum of $70,000, as the value thereof, together with the ...
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This action was commenced against the above-named defendants to rescind the sale of corporate stock upon the ground of fraud, and to recover the purchase money previously paid therefor. The trial court held that the company defendant and P.E. Landfield were "one and the same person and are identical," and gave judgment against the latter, from which judgment he has taken this appeal. Insufficiency...
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[1] By petition filed in the superior court of San Mateo County appellant asked for a writ of mandate commanding the Board of Supervisors of said San Mateo County to redistrict the supervisorial districts of said county. The complaint alleges in substance that San Mateo County is divided into five supervisorial districts; that the present supervisorial districts were established by ordinance in th...
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The petitioner was committed to the county jail of Los Angeles County for contempt of court for failure to pay a monthly award to his wife, Nellie R. *Page 482 Wagnon, for the maintenance and support of their minor child. He seeks his freedom from such confinement by habeas corpus. [1] It appears that on May 18, 1918, Mrs. Wagnon filed in the superior court of San Bernardino County a suit for di...
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[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 191 [1] This is a proceeding for a writ of prohibition. It appears from the petition upon which the alternative writ was issued that an action was commenced in respondent court by respondent Kelley against five defendants, two of whom were one J.H. Cochran an...
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In Banc. Plaintiff appeals from a judgment and decree, dismissing plaintiff's complaint and rendering a decree in favor of defendant foreclosing a bill of sale of a Hudson automobile, as a chattel mortgage to secure the payment of $962.65, as set forth and prayed for in defendant's answer as an equitable defense to plaintiff's complaint. AFFIRMED. The plaintiff, Na...
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This action was brought against Higgins, the maker of the note, and Silvius, guarantor of its payment. Judgment by default was entered against the maker. After trial of the case against the guarantor, judgment was entered against him, from which judgment he now appeals. The grounds of appeal, as gleaned from the brief for appellant (there being no clear statement of points and authorities, and the...
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Appellant was charged by information with the crime of bigamy. It was alleged, in substance, that on or about June 1, 1927, defendant unlawfully married one Nellie Jones, when at such time he had a lawful wife living. To this indictment defendant pleaded not guilty. Trial was had, which resulted in a conviction. It was proved that defendant had married one Phoebe Huntley in the year 1914. It was a...
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It has been stipulated that these two appeals may be heard and determined together, the issues involved being practically identical in both cases. Both actions are for the specific enforcement of contracts for the conveyance of real property, or for damages in case specific performance cannot be decreed. In action No. 3530, Altman v. Blewett, conveyance from defendant to plaintiff of the southerly...
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Plaintiff sued to restrain defendant from conducting business under the name of "Adolph M. Schwarz, Jr., Commercial Collections," or variations of such name calculated to deceive the public, and also from soliciting the business of plaintiff's clientele and from using lists of plaintiff's customers obtained by defendant while he was in the employ of the plaintiff. The cause was tried before the co...
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The petitioner has moved for a peremptory writ of mandate upon a petition which he has filed alleging that the respondent, as city clerk of the city of Oakland, has arbitrarily, and through coercion on the part of his superiors, fraudulently refused to certify as sufficient a petition filed with him asking for an election to vote upon the question of the recall of C.C. Young, one of the commission...
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This is an application for a writ of review. The petitioner is attacking an order made by the trial court appointing a guardian of the estate of the petitioner, an alleged incompetent person of the age of seventy-nine years. [1] In her points and authorities the petitioner devotes much time in arguing that she has adopted the correct procedure. We think that she has. (Grinbaum v. Superior Court, 1...
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Plaintiff, Agostino Craviotto, brought this action under the provisions of the "McEnerney Act" [Stats. 1906 (Ex. Sess.), p. 78], to establish his title to two parcels of land situate along the waterfront in the city and county of San Francisco. Defendant, Emma Rose, answered, alleging that she was the owner in fee simple of the reversionary interest in one of the lots described in plaintiff's comp...
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This is an appeal from a judgment in a claim and delivery action, awarding plaintiff possession of a Peerless automobile, and damages for its detention. The complaint alleges that at the time of its filing, which was on November 30, 1925, plaintiff owned the automobile in question, that it was in possession of defendant, that plaintiff had demanded possession before bringing its suit, that defenda...
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This action was instituted by the county of Los Angeles to condemn certain property for public use. In the property sought to be condemned was lot 13, block K, of the town site of Howard, in said county. James T. Dunn and Grace P. Warden are among the defendants. Each of these two defendants claims to be the owner of said lot. The court found that it was the property of Grace P. Warden, and that s...
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The defendant was charged by information with the crime of violating the Corporate Securities Act in the following respect: That he did, on November 15, 192G, sell tó and take a subscription of J. P. Kemmerer for 10,000 shares of the Bonanza King Extension Mines Company for the sum of $1,000 without first having *530 applied and secured from the corporation commissioner a permit authorizing the...
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The defendant was tried and convicted in the superior court of Shasta County, upon an information charging him with the crime of rape, and also charging him with a prior conviction of a similar offense, the charging part of the information being as follows: "The District Attorney of the County of Shasta, State of California, hereby accuses Steve Currie of a felony, to-wit: rape, in that the said S...
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Plaintiff brought two separate actions in the superior court on behalf of himself and other members of San Francisco Lodge No. 198 of the Brotherhood of Railroad Trainmen. One action was in replevin to recover bonds claimed to be the property of the members of the local lodge. The other action was in assumpsit to recover money which was also claimed to be the property of the members of this lodge....
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The defendant appeals from an order and judgment of the district court of Weber county committing him to imprisonment in the county jail until he pays $600 delinquent alimony to his divorced wife. The plaintiff had a decree of divorce from the defendant on September 3, 1919, and an award of alimony of $35 per month for the support of herself and one minor child. On December 21, 1922, on account of...
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This is an appeal by Logan City, etc., from a decree confirming the several titles of the plaintiffs and the cross-defendant, Utah Power & Light Company, to the use of certain waters of Logan river, in Cache county, and enjoining the defendants Logan City and its officers from interfering with or disturbing the exercise of such rights by fluctuating or causing a variation in the natural flow of...
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The plaintiff brought this suit to foreclose a mortgage on a tract of land situated in Salt Lake City, Salt Lake county, Utah. The facts are not in dispute. On March 15, 1909, Christian Nielson and his wife, Sarah E. Nielson, executed and delivered to the plaintiff a promissory note for the sum of $1,300, payable on March 1, 1914. To secure the payment Corpus Juris-Cyc. References: [1] Dower 19 C....
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This is an original proceeding in habeas corpus. The petitioner alleges, in substance: That he is illegally restrained by the sheriff of Oklahoma county. That in December, 1927, he was convicted for having the unlawful possession of narcotics, and was sentenced to serve a term of one year in the state penitentiary. That no appeal was taken from such judgment, and he was incarcerated in the peniten...
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The plaintiff in error, hereinafter called defendant, was convicted in the district court of Sequoyah county on a charge of larceny of domestic animals, and his punishment fixed at imprisonment for a term of five years. All the assignments of error go to the sufficiency of the evidence to sustain the verdict and judgment. Briefly stated, the record discloses that E.XE. Gragg had *16...
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The petitioner is charged with rape in the first degree as having been committed upon the person of a female child, 8 years of age. Rape in the first degree *Page 13 is punishable by imprisonment not less than 15 years; the maximum punishment is death. Section 1838, Comp. Stat. 1921. A person accused of crime is entitled to bail except where the charge is for a capital offense, where the proof of...
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The plaintiffs in error, hereinafter called defendants, were convicted in the county court of McCurtain county on a charge of transporting whisky, and were each sentenced to pay a, fine of $50 and to serve 30 days in the county jail. The record discloses that at the time charged a federal prohibition officer saw defendants driving on the highway, and that he turned his car across the road for t...
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On behalf of J.J. Butler a duly verified petition for writ of habeas corpus was filed in this court on June 16, 1928. Attached thereto and *Page 435 made a part thereof is a stipulation and an agreed statement of facts from which it appears: That petitioner, J.J. Butler, was convicted in the district court of Bryan county of the crime of adultery, and was sentenced on August 29, 1913, to imprison...
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The plaintiffs in error, hereinafter referred to as the defendants, were convicted upon a charge of robbery with firearms, and the punishment of R. C. Logue fixed at 10 years in the state penitentiary, and the punishment of J. B. Morris, alias J. D. Nunn, fixed at 5 years in the state penitentiary. Motion for new trial was filed and overruled, and defendants appeal to this court. The testimony ...
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Lee Kaufman was convicted in the county court of Kay county on a charge that he did unlawfully sell two drinks of whisky to one P. C. Copeland, and, in accordance with the verdict of the jury, was sentenced to pay a fine of $50 and to be confined in the county jail for 80 days. From the judgment rendered December 4, 1926, an appeal was perfected by filing in this court on February 18th, 1927, a p...
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The plaintiff in error was convicted in the district court of Rogers county on a charge of manslaughter in the second degree, and was sentenced to serve a term of three years in the state penitentiary. The judgment was rendered on December 21, 1925, and the appeal lodged in this court in February, 1926. No briefs in support of the appeal have been filed, nor was any appearance for oral argument...
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The information filed in the superior court of Okmulgee county March 25, 1925, in substance, charges that in said county' on the 16th day of August, 1924, defendant, Will Gifford, did take, steal, and carry away one Ford touring car, the personal property of Pat Johnson. Upon his trial, a verdict of guilty was returned, and his punishment assessed at imprisonment in the penitentiary for the term ...
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The respondent brought this action as plaintiff alleging, in effect, that it purchased from, the appellant certain fixtures, tools and machinery, on conditional sales contract, for the price of twenty-two hundred dollars, payable in installments, the property *643 purchased being placed in the plaintiff’s meat market and used by him in carrying on a retail meat business; that, at the time the c...
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Relator, by petition filed in this court, sought a writ of review for the purpose of reviewing a judgment of the trial court adjudging that no partnership existed, and consequently denying her application for appointment as administratrix of what was alleged to be a partnership estate. The writ was issued on the authority of State ex rel. Keasalv. Superior Court, 76 Wn. 291, 136 P. 147, and State ...
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This is an appeal by Louis Winthrop, a member of the bar of this state, from a judgment of the superior court for King county adjudging him guilty of contempt of that court, and that he be punished therefor by a fine of $25, and be imprisoned in the county jail until the fine is paid. The judgment is rested upon the theory that the conduct of appellant which the judge of the superior court regarde...
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G. G. Schneller brought this action against H. H. Vincent for the alleged conversion of about four hundred sheep, upon which the appellant held a mortgage given by one Paxton, the owner of the sheep. At the trial, there was a verdict in favor of the defendant. Plaintiff moved for a judgment notwithstanding the verdict and for a new trial, both of which were denied. He has appealed from a judgment...
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Respondents, Ernest Schoenwald and Henrietta Schoenwald, were married in March, 1919. They separated in 1922, at which time Henrietta Schoenwald instituted suit for divorce. In November, 1923, the case was tried, and the court announced that a divorce would be granted to the plaintiff, subject to a property settlement by a referee. At this time there was awarded to plaintiff temporary alimony in t...
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On November 15, 1926, the appellant, Salmeier, was informed against in the superior court of Adams county on two counts, one for the crime of seduction and the other for the crime of lewdness. He was arrested late in the month of December following, on a warrant issued upon the information, and gave bail to answer the charge. On January 3, 1927, he was brought before the court for arraignment, at ...
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The plaintiffs brought this action to recover for damages and injuries sustained in an automobile collision. At the close of plaintiffs’ case, the court dismissed the action, with this resulting appeal. At the outset we are met with a motion to strike the statement of facts because it was not filed within ninety days after entry of judgment. It has been our oft repeated holding, under the statu...
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The appellants are the holders of certificates of public convenience and necessity, issued by the department of public works pursuant to Session Laws of 1921, p. 338, ch. 111 (Rem. Comp. Stat., § 6387), authorizing them to engage in the transportation of freight between Spokane and Davenport, Washington. They have in every way complied with the law with respect to the filing of tariffs, time sched...
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This action was brought by Joseph Edward Shaw against his wife for a divorce, for a settlement of their property rights, and for the custody of their two minor children. The defendant resisted the application for a divorce and filed a cross-complaint for separate maintenance. An interlocutory decree of divorce was entered in favor of the plaintiff upon findings that the defendant had maintained to...
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This proceeding was commenced in the superior court for King county, by the petition of the supervisor of fisheries on behalf of the state, seeking a judgment confiscating to the state a motor boat and its appliances owned by the defendant, Mavrikas, and unlawfully used by him in fishing in Puget Sound, in King county. Trial upon the merits in that court, sitting without a jury, resulted in findin...
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The plaintiff packing company sought, in the superior court for King county, recovery of damages against the defendants, Huglen, Boryer, Parks and Sea Foods Company, alleged to have been suffered as the result of a conspiracy on the part of the defendants and their acts in pursuance thereof, to the injury of the packing company's fish and fish canning business. The case proceeded to trial in the s...
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Union High School District No. 400, of Whatcom county, Washington, had a new high school constructed in 1925 by the Pacific Northwest Construction Company, at a cost of approximately $90,000. The Fidelity and Deposit Company of Maryland issued the surety bond for the faithful performance of the contract. One William Mallis of Seattle, Washington, was the architect selected by the school board. On ...
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The plaintiffs brought this action to recover an irrigation assessment upon land conveyed to them by the defendants and which they claim the defendants should pay. The cause was tried to the court without a jury and resulted in findings of fact and conclusions of law sustaining a recovery. Judgment was entered in favor of the plaintiffs for the sum of $229.73, from which the defendants appeal. Dec...
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— Respondent Mary N. Naccarato was struck by an automobile driven by appellant S. J. Pen-gelly on the evening of February 16, 1927, and brings this action to recover damages for the injuries sustained. The case was submitted to a jury, which returned a verdict in favor of the plaintiffs for $1,500, and this appeal follows. It seems to be conceded by appellants that the lower court ruled correct...
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The defendant, William F. Johnson Mill Company, a corporation, hereinafter called the Mill Company, being indebted to the defendant and appellant, Winlock Toledo Logging Railroad Company, a corporation, for logs theretofore purchased, and both parties desiring that some portion of the indebtedness be paid, prepared a sixty-day trade acceptance, bearing date June 15, 1925, for $5,000, which *Page...
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The appellant is a corporation having its headquarters in Chicago, and is engaged in the business of selling milking machines. Respondent, is a dairyman, located near LaCenter, in southwestern Washington. Early in the fall of 1925, respondent gave the local agent of appellant an order for a milking machine, paying twenty-five dollars cash, and giving an *507 installment note dated November 1, 1...
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The relators invoke the original mandamus jurisdiction of this court praying for a peremptory writ of mandate requiring the secretary of state to print in the pamphlet to be issued by him to the voters of the state, incident to the submission of a constitutional amendment proposed by the legislature of 1927 relating to revenue and taxation, relators' argument in support of that proposed constituti...
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This is an appeal from a decree, entered on petition of respondent, setting aside a final decree of divorce granted exparte on appellant's motion. In April, 1923, plaintiff filed a complaint asking for a decree of divorce and for a settlement of the property rights of herself and defendant. She was granted an interlocutory decree May 15, 1923, and nothing further was done in the case until August ...
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These two actions were brought to recover for injuries sustained by the plaintiffs while riding in an automobile, which for the purposes of this case may be said to be owned by the defendant Hickey and operated in his absence by defendant Bullock. From a verdict and judgment in favor of each plaintiff, this appeal was taken. Since the cases were almost identical as to the facts, they were tried to...
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This appeal is from the final award and judgment for damages in favor of appellant in condemnation proceedings. This court has already passed upon most of the questions involved herein and has heretofore adjudged that the appropriator was entitled to appropriate and condemn as for public use and necessity. State ex rel. Woodruff v. Superior Court, 145 Wash. 129,259 P. 379. In other cases we have d...
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The superior court entered a judgment modifying a local improvement assessment roll from which both parties have appealed. *Page 561 Woodland is a town of the fourth class, located in Cowlitz county, and will be referred to as the respondent. Mrs. Alice E. Megary, who will be referred to as the appellant, owns a farm consisting of approximately eight acres, located in the residence section of the...
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In this action, the plaintiff seeks a common law remedy for personal injuries sustained by him upon a vessel at dock, in the city of Seattle. The action was brought under the provisions of the Act of Congress of June 5, 1920, ch. 250, § 20, 41 Stat. at L. 988, 1007; which, by making applicable the statutes of the United States concerning the common-law right or remedy in cases of personal injury t...
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In 1925, the North Pacific Trading & Packing Company of San Francisco, California, and H. K. Mar Dong of Seattle, Washington, entered into a written agreement by which Mar Dong was to furnish all labor necessary in the operation of the company’s cannery at Klawack, Alaska, during the fishing and canning season of that year, under the general direction of the company’s superintendent at the cann...
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This is an action to set aside a tax deed, in which the plaintiff prevailed, and the defendants have appealed from a judgment granting the prayer of the complaint. It appears that J.A. Veness, from about the year 1913, was the record owner of a tract of land in Lewis county, described by metes and bounds, consisting of eighty-eight one-hundredths of an acre, and that he has since remained the reco...
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This is a divorce action in which the .wife prevailed and the husband has appealed. The first assignment of error is based upon the action of the trial court in striking an amended cross-complaint filed on the eve of the trial without leave of court and the refusal to permit its refiling on terms. The appellant was permitted to introduce all of the evidence offered in support of the allegatio...
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This appeal is from a decree of divorce in favor of the plaintiff husband. The facts, substantially, are as follows: The parties were married in 1921. Both of them had previously been married, the respondent having five living adult children, and the appellant seven, three of whom were residing at her home. Immediately after their marriage, the respondent went to appellant's home to live and they ...
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In these cases, the respondent corporation sought to recover damages resulting to its property; and the individual respondent sought damages for personal injury, medical and hospital expenses sustained by him, by reason of a steam vessel, tank or boiler manufactured for the corporation by appellants, bursting. *Page 584 Both cases involve substantially the same questions of law and fact and were ...
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This is an action in conversion to recover the value of a certain automobile. The plaintiff had judgment, and the defendants have appealed. *Page 543 The train of circumstances here involved was initiated by one R.C. Morrison, an automobile dealer of Aberdeen, who, in order to act as local agent or distributer of a certain make of automobiles, was required to purchase and pay cash for a car to be...
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In addition to the reasons stated in the majority opinion for affirming the judgment, *Page 473 in which opinion I concur, I desire to add the following which, it seems to me, constitutes further ground for affirmance. Section 2059, Rem. Comp. Stat. [P.C. § 9272], as amended by Laws of 1925, Ex. Ses., p. 168, ch. 109 [Rem. 1927 Sup., § 2059], quoted in both the majority and minority opinions, est...
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Appellant was tried and convicted upon an information containing two counts. First, bootlegging and, second, unlawful possession of intoxicating liquor with two prior convictions. The verdict was guilty as charged and from a judgment and sentence upon the verdict he has appealed. The appellant has made no formal assignments of error, but from his brief and the argument it is apparent that he claim...
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The facts are substantially unconflicting. Respondent is an honorably discharged veteran of the late World War. During the year 1920, he was employed by the city of Seattle as a "trainman" (a term which includes motormen, conductors and operators who perform the duties of both motormen and conductors on one-man cars), in the department of public utilities, division of municipal railways. His appoi...
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The plaintiff sued for damages for the alienation of the affections of her husband and loss of support. The defendants are the father, mother, and brother of the husband. The case was tried to a jury, and a verdict in favor of the plaintiff in the sum of five thousand dollars was found. The defendants moved for judgment, notwithstanding the verdict, and *Page 639 for a new trial. The motion for j...
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[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 270 [EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 271 In Banc. This is a suit to remove a cloud from the titles of the plaintiffs. The complaint alleges that the de...
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This is an appeal and cross-appeal from a decree of the Circuit Court modifying an order of the County Court in the settlement of the final account in the estate of Oscar Gr. Laberee, deceased. Laberee died in September, 1918, and left, as part of his estate, a large cattle ranch in Klamath County, Oregon. His widow was appointed executrix of the estate, but, on account of ill health, resigned in...
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In Banc. The respondent, while held a prisoner in the city jail in the City of Bend, filed in the Circuit Court for Deschutes County an application for a writ of habeas corpus. The circumstances of his imprisonment he alleged as follows: That he was being detained by virtue of a warrant of arrest issued by the city recorder of the City of Bend; that the warrant was based upon a complaint charging ...
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This is an action at law to recover attorney’s fees for services performed by plaintiff’s assignor in the foreclosure of a mortgage given by the Quality Mill and Lumber Company, a corporation, to defendant, J. F. Duffy. After the cause had been appealed, Duffy died and, on motion of appellant, J. E. Duffy, as administrator of the estate of decedent, was substituted as respondent herein. Th...
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This is an appeal from a decree enjoining the defendants, as the tax-levying officers of Multnomah County, from assessing or levying general taxes upon certain real property belonging to and situate within the City of Portland. The property in question, together with other adjoining lands, was purchased by the city for the purpose of establishing a municipal park. The park has been established an...
Views: 8
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 653 [EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 654 [EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE T...
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The defendant was convicted in the Circuit Court of the crime of failing to support his two children; one nine years of age, the other seven. He has appealed to this court. In September, 1923, the mother of these children secured from the defendant a decree of divorce which awarded to her the custody of them, and ordered him *Page 255 to contribute towards their support the sum of $37.50 per mont...
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Chapter 153, Section 14, 1921 Session Laws, provides: “Any dog or dogs running deer or other game animals in any of the fields, woodland, brush land or other territory inhabited by deer, or following upon the track of any game animals of the state, are hereby declared a public nuisance if such dog or dogs are not wearing a leather collar with a license number thereon in compliance with section ...
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In Banc. Defendant was convicted, under Section 2099, Or. L., of having committed an act of sexual perversity. The indictment, so far as material, is as follows: "The said Clarence Brazell on the third day of January A.D. 1928, in the County of Multnomah and State of Oregon, then and there being did then and there unlawfully and feloniously commit an act of sexual perversity with one Gordon Ericks...
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delivered the opinion of the court. The plaintiff is a grower of sugar beets upon his own lands in Logan county. The defendant is a corporation organized under our Co-operative Marketing Act (S. L. 1923, p. 420), of which incorporated association the plaintiff is a member. This statute, among other things, provides that eleven or more persons, a majority of whom are residents of Colorado, may form...
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ON application for supersedeas. Defendants in error as plaintiffs below obtained a decree foreclosing liens claimed by them for labor in connection with the drilling of a well sunk for the purpose of exploring for oil. Under the decree, foreclosure was ordered not only upon the well itself, but upon the fee estate, the leasehold estate, and the drilling rig, equipment and tools. Plaintiffs in erro...
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THESE parties appeared in reverse order in the trial court and we hereinafter so refer to them. Plaintiffs brought ejectment to oust defendant from certain mining claims. She moved to make the complaint more specific. The disposition of that motion is not disclosed by the abstract. It was, however, apparently overruled. Defendant also demurred for want of facts, legal capacity, and ambiguity. The ...
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delivered the opinion of the court. *299 The Western Equipment Company brought this action to recover of Peterson, Shirley and Gunther the sum of $1,270.86 “on an account for goods, wares and merchandise sold and delivered to the defendants.” The defendants filed an answer which, for the purposes of this review, may be regarded as a general denial. The plaintiff had a verdict and judgment, an...
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PLAINTIFF in error is hereinafter referred to as "MacKay"; the original defendant, N. H. Silliman, as "Silliman," and his heirs, the present defendants in error, as "defendants." MacKay brought this action against Silliman to quiet title to real estate. Answer and replication were filed and trial was had to the court. The cause was submitted on written briefs and on November 20, 1926; on a general...
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FRANK L. Grant was appointed administrator c. t. a. of the estate of Auguste Ali Bourquin, a citizen of Switzerland, who died in Denver, testate, without appointment of an executor, and having no relation in this state. Paul Weiss, Swiss consul in Denver, claimed the right to administer the estate but was defeated. He brings the matter here on error, moves for supersedeas and requests a final deci...
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IN a court of a justice of the peace James Barnhart and his wife were charged jointly with a violation of the so-called prohibition statute in that they had in their possession intoxicating liquors, and upon the trial before a jury they were found guilty and a fine of $100 was assessed against them jointly, upon which the court rendered a joint judgment of $100. Thereupon the defendants, without n...
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McFERSON, state bank examiner, took possession of the assets of the International State Bank of Trinidad for liquidation. By order of the district court where the liquidation was pending, the commissioner held a public sale and at that sale Aiello bought all the remaining unliquidated assets of the bank, in bulk, for $40,000, and the same were delivered to him. They consisted of notes, charged off...
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ALLEN Cliff, hereinafter referred to as the defendant, was found guilty of embezzlement, and was sentenced to imprisonment in the penitentiary. He claims that reversible errors were committed. 1. It is claimed that the prosecution was under section 6734 of the Compiled Laws (act of 1907); that that section, so far as it relates to bankers, was impliedly repealed by the act of 1913 (C. L. § 2675). ...
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The court erred in permitting Mrs. M.L. Daniels, respondent herein, to testify, over administrator's objection, concerning an alleged transaction between herself and the deceased, out of which testimony concerning the alleged transaction the said witness was endeavoring to establish a benefit to herself. Rev. Laws, sec. 5419; Burgess v. Kelon, 24 Nev. 242, at 250, cited in Su Lee v. Peck, 49 Nev. ...
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This action was commenced by the plaintiffs, eighteen in number, to quiet the title of themselves *Page 56 and each of them in and to the use of the waters of the Kaweah River, located mainly in the county of Tulare, and to restrain a threatened diversion of such waters to the injury of said plaintiffs and each of them. The plaintiffs sought and obtained from the superior court in and for the cou...
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THE COURT. Respondents move to dismiss the appeal and to affirm the judgment and order appealed from. The motions are identical, except as to the relief requested, and respectively specify as grounds therefor that the several points urged upon the appeal have heretofore been determined by this court adversely to the appellants' contentions, that the appeal is frivolous and prosecuted for purposes ...
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THE COURT. After a further and more complete consideration of the opinion herein rendered by the district court of appeal, we are of the opinion that it correctly states the views of this court upon the questions therein determined. This opinion, written by Justicepro tem. Wood and concurred in by Presiding Justice Conrey and Justice York, we hereby adopt as the opinion of this court, and it is as...
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The defendants were the owners as tenants in common of an improved lot in St. Francis Wood, San Francisco. The plaintiff desired to purchase the property, and, under date of October 19, 1926, signed and delivered to the defendant Felix H. Spitzer a written offer, as follows: “$16,000, payable $1,000 down, $1,000 January 1st, 1927, balance payable at $100 or more per month. ... I will deposit $1,0...
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This is an action to recover damages for detriment to a shipment of dried fish. The complaint pleads a contract between the parties whereby defendant agreed to carry said shipment under refrigeration from Boston to San Francisco and its failure through negligence so to do, as a result of which plaintiff sustained damages in the sum of $1,738.51. The answer denies these averments and sets up as a d...
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This is an appeal by the defendant from a judgment against him for five thousand dollars, damages for personal injuries sustained by plaintiff while riding an "unbroken" mule upon a stock ranch owned by the defendant. [1] J.M. Streshley, the defendant, was engaged in the business of conducting a ranch, upon which he raised hay and cattle, in Willow Creek Valley, Lassen County, and employed a numbe...
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This action was commenced by the plaintiff Conradine Ritterbusch and her two children on February 23, 1921, against the defendant, City of Pittsburg, a municipal corporation of the sixth class, to recover damages for the death of Carl D. E. Ritterbusch, husband and father respectively of the plaintiffs, alleged to have been caused through typhoid fever contracted by reason of the negligence of th...
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This action was one for personal injuries as a result of a collision between an automobile owned by the plaintiff and in which she was riding, according to her contention, as a guest, and one owned and operated by the defendant, John Volfi. The collision occurred at the intersection of 36th Street and 4th Avenue, in the city of Sacramento, which cross each other at right angles. Sacramento Boul...
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This appeal is from a judgment dismissing a quo warranto proceeding, a demurrer having been sustained by the trial court, on the ground that the action was barred by the provisions of section 349 1/2 of the Code of Civil Procedure. This action is based upon an alleged invalidity in the proceedings conducted in effecting the annexation of certain outside territory, designated as "Sunland Addition,"...
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This appeal is taken from a judgment of the superior court of the county of Los Angeles, made and entered against the plaintiff upon her refusal to amend her complaint, in an action for false imprisonment and malicious arrest. The complaint avers that the defendant Trippel was city attorney of Huntington Park, a city within Los Angeles County, defendant Leland was city marshal of said city, and th...
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This is an appeal from the order of the trial court granting defendant's motion for a new trial after his conviction of the crime of forgery. The evidence is sufficient to show that the defendant committed the forgery, and the only question to be determined is whether the trial court was warranted in granting a new trial on the ground that the evidence does not satisfactorily show that the crime w...
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This action was brought to recover brokers' commissions alleged to be due for services rendered in accordance with a contract whereby defendant agreed to pay for those services a commission of $500. At the close of the testimony presented by plaintiffs the court, on motion of the defendant, ordered a nonsuit, and judgment was entered accordingly. The plaintiffs appeal. The contract was in writing ...
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[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 579 This is an appeal from a judgment for broker's commissions for procuring a fifty-year lease of real property. The complaint contains two counts, the first of which is based upon an alleged oral promise to pay a specified sum for services for procuring the...
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The appellant, Lorena Wilson, was charged jointly with her husband, Harry Wilson, and one Russell Griffin, with the crime of robbery alleged to have been committed in San Francisco on September 21, 1927. She was arrested in Oakland on December 1, 1927, and tried separately in February, 1927, her co-defendants having been previously sentenced to the state prison on another charge. The jury found he...
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Under an indictment found and returned to the superior court of Butte County by the grand jury thereof and filed in said court on the seventh day of May, 1927, the defendant was convicted of the crime of grand larceny, in that he, on or about the first day of April of said year, did unlawfully and feloniously steal and take away two calves, the personal property of one Nettie Frishholz. *Page 592 ...
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An action on a promissory note executed by defendant Ernst to the California Bank of San Mateo and transferred after maturity to the plaintiff. The answer, which denied that the note was given for value, alleged that the instrument was executed at the request of R.J. Falvey, who, as the cashier and manager of the payee bank, by false and fraudulent representations induced the defendant to agree to...
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The appellants and one Cinvente S. Lueras were jointly charged with the crime of burglary, to which offense the latter pleaded guilty, and appellants were convicted of burglary in the first degree. Motions for a new trial and in arrest of judgment were thereafter presented, which were denied, and Calderon and Torres appeal from the judgments and from the rulings upon said motions. It appears th...
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The plaintiff commenced an action against the defendant Isenberg to recover a judgment for money loaned. He filed his complaint May 7, 1927. The defendant Isenberg appeared and filed a demurrer June 13, 1927. Thereafter, on August 26, 1927, pursuant to his request, the plaintiff was granted permission to file an amended complaint. The amended complaint was so framed that it pleaded a cause of acti...
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The information charges that on or about March 29, 1928, Thomas Calvert, Arnold Calvert, Carl A. Calvert, Anthony Pimentel, and Frank Smith did "unlawfully, willfully and feloniously possess and have in their *Page 570 control a still, which was then and there designed, used and intended for use in the manufacture of intoxicating liquor for beverage purposes, to-wit: whisky sometimes called jacka...
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[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 603 The plaintiff, while a pedestrian crossing Third Street in the city and county of San Francisco at its intersection with Thornton Avenue, was injured by an automobile operated by the defendant. The injuries were found by a jury to have been caused by the ...
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Plaintiff sued for damages for loss and injury sustained by him from the use upon his orange orchard of a product manufactured and sold by the defendant known as "Citro-mulsion" and used for the purpose of spraying orange and other citrus trees to destroy scale. Plaintiff had judgment for $6,100, from which the defendant has appealed on a bill of exceptions. The manufactured article was sold by th...
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Appellant was charged with the crime of rape alleged to have been committed upon a girl twelve years of age, and upon trial was found guilty. Pursuant to the authority granted under section264 of the Penal Code the jury recommended that he be punished by imprisonment in the state prison, and he was sentenced accordingly. The appeal is taken from the judgment of conviction and the order denying his...
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[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 319 This is an action of fraud. In March of 1923 plaintiff was the owner of a piece of real property. At the same time the defendant E.W. Kimble was the *Page 320 president and the defendant H.F. Kimble was secretary of an Oregon corporation entitled The Gua...
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[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 514 Plaintiff-appellant seeks by habeas corpus to obtain from John C. Duryea the possession of their two minor children, Cleora Sarah and Thomas Alfred Duryea. Early in 1921, appellant and Duryea, with the children, were residing at Coney Island, near Reno, N...
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Respondents, Will sisters, on the twenty-ninth day of April, 1921, conveyed certain real property to appellants and took in part payment therefor the promissory note of appellants, the payment of which was secured by a mortgage on the identical property. Suit to foreclose the mortgage was instituted by respondent *Page 586 Zimmerman, a nephew of the Will sisters, to whom the note and mortgage wer...
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The complaint alleges this action brought by Alex Sprouse on his own behalf and as guardian ad litem of his two minor children, to recover damages for alleged malpractice by the defendant, a doctor, resulting in the death of the wife and mother of the respective plaintiffs. The complaint alleged malpractice in a first negligent and incorrect diagnosis and treatment about February 25, 1925, *Page 6...
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THESE parties appear here in the same order as in the trial court. Ivy May Ellis, plaintiff's wife (now deceased), is hereinafter referred to as Mrs. Ellis; William A. McKinlay (now deceased) as Mr. McKinlay; his widow, Dora K. McKinlay, defendant in error, as Mrs. McKinlay; the Colorado National Bank of Denver, defendant in error, as the bank; and Margaret E. Ellis, Ivy Katherine Ellis and Mary J...
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On petition of plaintiff, Amos Cox, a writ of certiorari was issued on March 12, 1928, directed to the defendant Dixie Power Company and Hon. T.H. Burton, judge of the district court of Iron county, Utah. This is an original proceeding *Page 238 in this court. The petitioner seeks a review and annulment of an order of the district court of Iron county, transferring for trial an action pending in ...
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The defendant was convicted by the verdict of a jury in the district court of Salt Lake county, Utah, of being a persistent violator of the Prohibition Law (Comp. Laws 1917, §§ 3341-3381), and was sentenced to an indeterminate term of imprisonment in the state prison. The information charged the defendant with "unlawfully, knowingly, and feloniously" manufacturing intoxicating *Page 253 liquor, t...
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In an action for the wrongful, willful, and malicious destruction of a dam and diverting works constructed by them across Red Cedar creek, in Juab county, the respondents obtained a verdict and judgment against appellants for $362.50 actual damages and $5,000 punitive damages, from which appellants have appealed. The respondents and the principal appellant, the Granite Creek Irrigation Company, ar...
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The plaintiff recovered a judgment in the third district court of Salt Lake County against the defendants for the sum of $1,718.43. The defendants prosecute this appeal. At the time this controversy arose the plaintiff corporation was engaged in the business of mining coal in Carbon county, Utah. The coal thus mined was sold to various retail coal dealers. The defendants were engaged in the busine...
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The plaintiff, the owner of an unpaid bond of $500 maturing August 1, 1928, issued by the Millard County drainage district No. 3, in this proceeding applies for a writ of mandate requiring the board of supervisors of the district to prepare a statement and estimate, etc., and certify a tax of $75 per acre on all of the lands in the district, for the purpose of raising money to pay the plaintiff's ...
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In this cause the plaintiff secured a money judgment against the defendants on account of damages to plaintiff's premises caused by seepage water, and the defendants were enjoined from coursing water through an irrigation ditch unless they either lined the same with cement or constructed a water-tight flume or conduit along the course of the ditch. Defendants appeal. At the time this action was be...
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On May 20, 1926, the plaintiff brought an action against the defendant by filing complaint in the third district court of Salt Lake county, Utah. The action was for goods, wares and merchandise alleged to have been sold and delivered to the defendant by the plaintiff. On the same day, May 20, 1926, a writ of garnishment was issued by the clerk of the third district court of Salt Lake county. The w...
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This is an appeal by defendants Paxton and wife. The case was here on a former appeal. McKellar R.E. Inv. Co. v. Paxton,62 Utah 97, 218 P. 128. Prior to the first trial W.R. Walker, one of the vendors of the land herein involved, and one of the plaintiffs, acquired all of the interests of the other plaintiffs in the subject-matter of the litigation. He therefore was and still is the sole plaintif...
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This is an appeal by the husband from an interlocutory decree of divorce granted the wife. The principal question discussed in the appellant’s brief is whether the evidence justified the findings of the court. The court found cruelty as the basis for the decree ; he found that, on a number of occasions, *693 the appellant threatened to kill the respondent; that he almost daily applied opprobr...
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The plaintiff, as administratrix of the estate of Kristian Miller, deceased, brought this action to recover damages for his death. The cause came on for trial before the court and a jury. At the conclusion of the plaintiff's evidence, the defendants moved for a nonsuit which was sustained. Judgment was entered dismissing the action, from which the plaintiff appeals. *Page 695 The facts are these:...
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Two different phases of the transaction resulting in the litigation now before us have already been before this court,Crabtree v. McDaniel, 143 Wn. 122, 254 P. 1092, andMcDaniel v. Crabtree, 143 Wn. 168, 254 P. 1091. To avoid confusion in the statement of the issues, the parties will be referred to by their names. In February, 1922, McDaniel, being the owner of a tract of timber land in Skagit cou...
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The plaintiff amusement company, a corporation, sought in the superior court for King county an injunction restraining the defendant city *Page 486 and its constituted authorities from interfering with the operation of a public dance hall maintained by the amusement company in pursuance of a license granted by the city under its Ordinance No. 48022, providing for the licensing and regulation of p...
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Appellant was by a jury found "guilty as charged" upon an information which set forth: "They, the said Dan Heppell and Adelore Heppell, in the county of Snohomish, state of Washington, on or about the 30th day of June, 1927, did wilfully, unlawfully and feloniously carry about with them, for the purpose of the unlawful sale of the same, a quantity of intoxicating liquor, other than alcohol, to wit...
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Plaintiff, a minority stockholder in the Empire Ice Shingle Company, a corporation, brings this action on behalf of the corporation and against certain trustees thereof, the corporation being also a defendant, alleging waste of the corporate property and diversion of the assets and profits of the corporation, to his detriment as a stockholder. *Page 603 Plaintiff in his complaint states five cau...
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This action was brought to recover damages to an automobile. The cause was tried to the court and a jury, and resulted in a verdict against the defendant in the sum of six hundred dollars. Motions for judgment notwithstanding the verdict and for new trial being made and overruled, judgment was entered upon the verdict, from which the defendant appeals. The facts are these: January 7, 1926, the res...
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Appellant, convicted of the crime of being a jointist, appeals and urges several grounds of error. [1] His first error claimed is that the court erred in permitting evidence in rebuttal which showed that *Page 702 appellant had previously been convicted of a crime. Appellant testified as a witness in his own behalf. While so testifying, the state started to examine him with regard to such previou...
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The Tulsa Building Loan Association brought an action against Franklin H. Griggs and Flora H. Griggs, husband and wife, to foreclose a mortgage held by it on certain real estate held in the name of Franklin H. Griggs. Answer was filed by the defendants. Sometime after the filing of the foregoing action, John R. Brandon, Alexander Gordon, and Donald W. Waddell, copartners doing business under the ...
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This was a civil action wherein Hudson-Houston Lumber Company was plaintiff, and J. S. Melton, Frank Blevins and First State Bank of Ringling were defendants, and Mrs. Belle Melton later became a party as intervener. The parties will be referred to as they appeared in trial court. Plaintiff's petition alleged that, on the 1st day of May, 1922, J. S. Melton, for a valuable consideration executed an...
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The plaintiff in error, hereinafter called defendant, was convicted in the county court of Tillman county on a charge of having the unlawful possession of intoxicating liquor with intent to convey, and was sentenced to serve a term of six months in the county jail and to pay a fine of $500. Prior to his trial in this case, defendant had been charged in case No. 1588 in said county court with havin...
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The plaintiff in error, hereinafter called the defendant, was convicted in the district court of Harmon county, on a charge of grand larceny, and his punishment fixed at confinement in the state penitentiary for a term of three years. Motion for new trial was filed, overruled, exceptions duly saved, and the case appealed to this court for review. The state called Raymond Keith, who in substance te...
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The plaintiff in error, hereinafter called the defendant, was convicted in the coun *24 ty court of Greer county on a charge of having possession of mash fit for distillation, and the manufacturing and distilling of liquors, and was sentenced by the court to serve a term of 60 days in jail and to pay a fine of .$250 and costs. Motion for new trial was filed and overruled, and exceptions duly sa...
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The parties occupy the same relative position herein as in the trial court and, for convenience, will be referred to herein as plaintiff and defendant, as they there appeared. The plaintiff had been a member of the defendant organization for approximately 25 years, and on the 12th day of February, 1923, was the holder of a policy of straight life insurance issued by the defendant, when, upon solic...
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This action was commenced in the district court of Carter county by Ben Williams, W. N. Cobb, and J. A. Steen against C. R. Smith, Humble Oil Refining Company, a corporation, and the Gypsy Oil Company, a corporation, for a decree awarding them possession and quieting title in them to certain real estate, and for damages for withholding possession, and for rents and royalties for oil and gas produ...
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A. J. Smith, defendant in error, as guardian of Cora Revard Miller, now Perry, plaintiff in error, filed in the county court of Osage county his final and supplemental report as such guardian. The county court awarded judgment against the guardian and ordered him to account to his ward in the sum of $1,222. From this judgment the -guardian appealed to the district court. After the easei was set f...
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In the court below J. O. Pierce, plaintiff, in an action in tort, recovered a judgment of $875 by a jury verdict against the Magnolia Petroleum Company, defendant. Plaintiff alleged that he suffered personal and property injuries through a collision of defendant's automobile truck, negligently operated by Stanley Neiswander and Charley Cunningham, the agents and employees of defendant, with plaint...
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In the court below R. O. Berry was plaintiff and F. E. Hilsmeyer was defendant. They will hereinafter be referred to as they there thus appeared. On August 23, 1924, plaintiff sued defendant on an oral contract under a petition in which he alleged, in substance, that in December, 1923, in the construction of a business building on lot 3 of block 13 in the city of Norman, owned by him, he agreed wi...
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S.D. Kinnamon, as plaintiff, filed this action in the district court of Seminole county against J. J. Stocklassa and Anna Stocklassa to cancel a mineral reservation in a warranty deed to certain lands located in Seminole county, wherein defendants were grantors and plaintiff was grantee. Plaintiff alleged that, on the 14th day of October, 1919, he entered into a written agreement with the defendan...
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This cause presents error from the district court of Oklahoma county. The action was originally instituted in the justice of the peace court. The plaintiff, Turner Oklahoma Company, sued the defendant, Yellow Cab Baggage Company, for $59.90, the value of certain merchandise which, it is alleged, the defendant delivered to a party other than the consignee. On appeal to the district court judgment ...
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The plaintiff, Gertrude Cope, brought this suit to recover damages for an injury to her 16 year old son, who received the injury, she alleged, by the negligence of the Roxana Petroleum Company, a corporation, while in its employment. The petition stated a cause of action. The defendant pleaded contributory negligence, assumption of risk, and specially that the injury to the employee came within th...
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In April, 1915, Sam Wood brought suit in district court of Carter county against his wife, Etta Wood, now Freeman, for divorce. The wife filed cross-petition, and the trial resulted in judgment on *Page 160 cross-petition granting the wife divorce from her said husband, and the wife was awarded part of lot 7, in block 375, in the city of Ardmore, and also the care and custody of the minor child o...
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The defendants in error were plaintiffs and the plaintiffs in error were defendants in the trial court, and, for convenience, they will be referred to herein as they there appeared. Plaintiffs brought this action to restrain the defendants from maintaining an undertaking establishment or funeral home and morgue on lots 18, 19, and 20, block 70, of the city Chickasha. It was alleged that each of th...
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This action was commenced in the district court of Garfield county by the Roxana Petroleum Company, hereinafter referred to as plaintiff, against the Superior Oil Refining Company, a corporation, hereinafter referred to as the refining company, and the Covington State Bank of Covington, Okla. The petition as first filed was based upon an account for crude oil sold and delivered by plaintiff to the...
Views: 1
The plaintiff in error, hereinafter called the defendant, was convicted in the district court of Tillman county, on a charge that he did, knowingly, unlawfully, wrongfully, and feloniously desert and abandon his wife, Annie May Clanton, and was sentenced to imprisonment in the state penitentiary for a period of one year, from which judgment and sentence defendant has appealed to this court. The...
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THE COURT. In this action, the trial court gave judgment upon the pleadings in favor of the plaintiffs and the defendant appealed from the judgment. The judgment was affirmed by the district court of appeal, third appellate district, Plummer, J., writing the opinion. Because of the *Page 104 earnest insistence of appellant in her petition for a hearing by this court, that the district court of ap...
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[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 95 THE COURT. The petition of appellant for hearing by this court after decision by the district court of appeal, first appellate district, division two, was granted because of the importance and novelty of the questions involved upon the appeal and to enable...
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This is an appeal from a judgment for $5,000 in favor of the plaintiff in an action for damages for the breach of a contract to sell certain scrap or salvage material. Prior to June, 1925, the defendant maintained and operated a meat packing plant in South San Francisco. The plant was destroyed by fire during that month. At that time the plaintiff was a dealer in scrap-iron and metals, with off...
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This is an appeal from a judgment for money found to be due plaintiff for services rendered to defendant under a written contract of employment for the construction of a grinding plant. The appeal is taken upon the judgment-roll alone, on the ground that the judgment is not supported by the findings. Plaintiff agreed to “take charge of all construction, supervising the installation of all machi...
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Judgment was entered in favor of the defendant, pursuant to an order sustaining demurrer to sixth amended complaint without leave to amend. The plaintiff appeals. The first count is upon a cause of action to recover damages for breach of promise of marriage. The second count is upon a cause of action to recover damages for fraud and deceit through and by means of which the defendant obtained from ...
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THE COURT. The defendant was convicted in the superior court of Tuolumne County of a felony, to wit, the crime of murder of the second degree. [1] The transcript on appeal was filed in this court May 26, 1928. No brief has been filed in behalf of appellant. The cause was regularly placed on the calendar for oral argument on July 30, 1928. No appearance was made for appellant at the time the case w...
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The defendant was tried before a jury upon an information charging a violation of chapter 552 of the Statutes of 1927 (Deering’s Codes and General Laws, 1925-1927, Act 1971). This act prescribes as a felony the possession of a firearm of the kind commonly known as a machine gun, excepting, by a member of the police department or other public official possessing such firearm for official use in th...
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A proceeding was commenced before the Board of Osteopathic Examiners to obtain a judgment revoking the certificate and license of the petitioner authorizing him to practice osteopathy. It was alleged that the petitioner had violated the provisions of subdivision 12, section 14, chapter 354, of the Statutes of 1913. Thereafter the Board of Osteopathic Examiners held a trial. Evidence, both oral and...
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The plaintiff in error, hereinafter called defendant, was convicted in the police court of the city of Enid on a charge of being intoxicated in a public place. An appeal was taken to the county court, and- defendant tried de novo before a jury, and was there convicted, and a fine of $10 assessed, and from-this judgment has appealed to this court. The assignments of error all go to the same questi...
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Prom the record now before us, it appears that, on December 4, 1926, a decree was entered in this case denying a divorce to the plaintiff, dismissing his complaint with prejudice, and granting to the defendant, for her support and maintenance, the sum of fifty dollars per month continuing “until the parties hereto shall mutually, voluntarily and permanently resume cohabitation as husband and wife...
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The defendant has appealed from a judgment awarding to the plaintiff an interlocutory decree of divorce and the care and custody of the minor children. The parties intermarried, were divorced, and then married again. It is claimed the court erred in admitting testimony of things occurring between the parties prior to the first divorce. There was altogether very considerable testimony of this ki...
Views: 1

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