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All Reporters → p → Volume 290

Opinions in p Volume 290

*168The opinion of the court was delivered by This action was brought by the Fourth National Bank in Wichita against O. H. Webb and Harry Webb to recover upon a promissory note for $5,000 executed by them. Defendants resisted payment on the ground of misrepresentations and fraud in the transactions under which the indebtedness was incurred. The trial resulted in a judgment for defendants, and pla...
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The opinion of'the court was delivered by Under the provisions of R. S. 60-2821, the plaintiff filed a motion asking the court to strike the answer of the defendant Joseph P. Russell from the files and to enter judgment against him for his refusal to answer questions propounded to him in the taking of his deposition, and also for refusal to produce certain books and records. The motion of plaintif...
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From the following considerations the appeal in this cause is dismissed. [1] The action is for the dissolution of a partnership and for an accounting in connection therewith. The court, after hearing the evidence, announced its decision in writing on the ninth day of May, 1930, wherein it found the existence of a partnership between the plaintiff and defendant Carmelo Di Blasi and said Angelo Di B...
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Defendant Harry R. Lufkin appeals from an order directing him to pay to plaintiff Myrtle G. O'Neil, formerly Myrtle G. Lufkin, who procured an interlocutory decree of divorce from said defendant in 1920, the sum of $3,787.83, said sum being one-half the total amount necessarily expended by plaintiff in providing Harry R. Lufkin, *Page 712 Jr., the minor child of said plaintiff and defendant, with...
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This action was instituted for the purpose of rescinding a deed by which plaintiff conveyed to the City of Los Angeles an easement over her property for street purposes and to enjoin the city and G.W. Ellis from carrying out the terms of a contract for the doing of work called for by certain ordinances of the City of Los Angeles, partially on the property deeded by plaintiff to the city. It is als...
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The six defendants herein were the co-makers of a promissory note, dated January 16, 1924, by the terms of which they promised to pay to plaintiff, six months after date, for value received, the sum of $1500, with interest at the rate of seven per cent per annum. The note was not paid, and plaintiff brought this action upon a complaint in the usual form. The joint answer of the defendants admitted...
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The judgment is reversed. The record is voluminous and several questions are treated at length, but we feel that the discussion material to the conclusion reached by us may be confined within a comparatively small area. The major portion of the briefs is directed to the question of whether the evidence is sufficient to show that Edward Dool, deceased, on March 27, 1925, at the time of the executio...
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This is an appeal from an order denying a motion to set aside a final decree of divorce. Plaintiff and defendant were married on March 9, 1923. On January 18, 1924, the plaintiff commenced an action *Page 760 against the defendant for divorce on the ground of extreme cruelty and an interlocutory decree was entered in her favor on June 27, 1924. On January 11, 1929, the plaintiff filed with the cl...
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The sole question presented for decision to the trial court in these three actions was whether the street-car and interurban railways of the Southern Pacific Company, situated in the county of Alameda, were subject to a tax of five and one-quarter per cent or of seven per cent upon their gross receipts for the years 1920, 1921 and 1922. The answer to this question involves the correct interpretati...
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Motion to dismiss appeal from an order allowing attorney’s fees and costs of suit. Treated as a motion to affirm' the order, it should be granted. *667 Plaintiff obtained an interlocutory decree of divorce against defendant on October 25, 1928. Defendant thereafter filed a notice of intention to move for a new trial. On December 12th following, plaintiff gave notice of a motion for attorney’s...
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[1] This appeal is from a judgment of nonsuit. The trial court's ruling must, therefore, be examined in the light of the uniform decisions of this state, too numerous to require citations, which hold, in effect, that every inference of fact and intendment of law must be liberally construed in favor of sustaining the case made by plaintiff, to the end that causes may be determined upon their merits...
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THE COURT. The following opinion prepared by Presiding Justice Finch and concurred in by Justices Plummer and Thompson of the third appellate district we hereby adopt as the decision of this court: [1] "The defendant City of Gustine, which will be referred to herein as the defendant and respondent, is a municipal corporation of the sixth class. In the year 1920 it employed the plaintiff to perform...
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The judgment is affirmed. Appeal by defendants, P. C. Wolpert, P. C. Wolpert, doing business under the name and style of the Wolpert Lumber Company, C. D. Plum, as manager of the Wolpert Lumber Company, and the Wolpert Lumber Company, from a judgment against them and in favor of plaintiff, in the sum of $2,683.18, interest and costs, upon the main ground of insufficiency of the evidence to supp...
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A complaint affecting the conduct of the petitioner, William M. Aydelotte, as an attorney at law and *Page 738 as a member of The State Bar was filed with the Local Administrative Committee No. 5 of The State Bar for Los Angeles County by Virginia Hiddleson. After a service of a notice of the proceeding, the petitioner made answer to the serious charges contained in the complaint against him, and...
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A proceeding in prohibition. Admittedly the Justice's Court of Big River Township of Mendocino County proposes to try petitioner for a misdemeanor cognizable by the Justice's Court, committed in Ten Mile River Township of the same county. Petitioner by this proceeding presents the question of the jurisdiction of the court in the former township over this offense. This question in turn involves a c...
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This is an appeal from a judgment against the sureties on an indemnity bond which was given pursuant to section 1183 of the Code of Civil Procedure, to secure the payment of the contract price of material furnished to the contractor in the construction of a building at Los Angeles. The appellants claim they were released from the obligations of the undertaking to the extent of $4,000, on account 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 61 Respondent brought this action to recover the sum of $100,000 as damages for personal injuries received by him in a collision between his automobile and the automobile of appellant. The case was tried before a jury, which rendered a verdict in respondent's...
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THE COURT. This action was brought to establish a claim against the estate of Delbert Wayne Jacobus, deceased. The plaintiff, who has since died, and the decedent above named were brothers and it appears from the testimony that in October, 1914, a few days after the death of their mother the decedent agreed to sell certain furniture owned by her and two hundred shares of corporate stock standing i...
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This is an appeal by the residuary legatee, Elisabetha K. Friedrichs, the widow of the deceased, John Henry Friedrichs, from certain portions of a decree of partial distribution in favor of a specific legatee, the respondent Henry B. Friedrichs, stepson of the deceased. The provisions of the decedent's will which are involved in the present controversy read as follows: "Second, – To my said stepso...
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On July 16, 1926, one C.H. Wadsworth was held to answer after a preliminary examination on a felony charge. His bail was fixed at $500. On July 21, 1926, the defendant surety company furnished an undertaking in the sum of $500, which was approved by a judge of the superior court, and the said Wadsworth was released from custody. The condition of said bond is as follows: "Now we, Fidelity and Depos...
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Defendant was found guilty and sentenced on a charge of the crime of bribery contained in an information filed by the district attorney of Los Angeles County. Appellant’s first contention upon appeal is that the testimony introduced on behalf of the People is not sufficient to prove any of the material issues set forth in the information. Although there are some uncertainties in the evidence in...
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This is an action for damages for personal injuries sustained by the plaintiff, Flora Hanson, in an automobile collision between her car and one driven by defendant Elden Cordoza. The action was dismissed as to defendants Kenneth F. Cordoza and Stephen Alfred Cordoza. The case was tried before the court without a jury, and judgment was entered in favor of plaintiff and against the defendants Elden...
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THE COURT. This action was for the recovery of damages for personal injuries alleged to have been caused by defendant's negligent operation of an automobile. A jury returned a verdict for the defendant. The plaintiff moved for a new trial upon the ground of the insufficiency of the evidence to justify the verdict and the motion was granted. The defendant has appealed from the order. He contends th...
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THE COURT. Appellant was convicted of the crime of rape. He has appealed from the judgment and an order denying a motion for a new trial on the issue of insanity. Appellant upon his arraignment entered but one plea, namely, not guilty by reason of insanity. *Page 191 As grounds for his appeal it is contended that the verdict was contrary to the evidence, that the trial court erred in the rulings ...
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Respondents filed a complaint in the Superior Court of San Diego County for the purpose of foreclosing a mortgage upon real property. A demurrer to *Page 167 defendant's amended answer having been sustained, without leave to amend, a decree of foreclosure was entered. From this decree defendant appeals on the judgment-roll alone. The facts material to this controversy as alleged in the complaint ...
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The plaintiff commenced an action against the defendant to recover damages for personal injuries suffered while he was an employee of the defendant. The defendant answered and a trial was had before the trial court sitting with a jury. The jury returned a verdict in favor of the defendant and from a judgment entered thereon the plaintiff has appealed. On the sixteenth day of May, 1928, the defenda...
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The defendant was convicted of the offense of unlawful sale of intoxicating liquor. The information charged a prior sale and conviction, of which the defendant pleaded guilty, but interposed a plea of not guilty to the offense charged as the basis of this action. The appeal is from the judgment of conviction. As a cause for reversal the appellant alleges that the trial court erroneously admitte...
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On the evening of March 7, 1927, respondent was injured in a collision with an automobile operated by appellant, at the intersection of University Avenue and Texas Street in the city of San Diego, California. University Avenue runs in an easterly and westerly direction and has upon it two street-car tracks. Respondent was a passenger upon an east-bound street-car from which he alighted at the inte...
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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 177 Respondent, for some time prior to the seventh day of December, 1926, had suffered from asthma. He had been treated from time to time by many doctors, but had obtained only temporary relief. Some few months prior to said date an operation had been perform...
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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 123 This is an action in equity brought by the plaintiff as an heir at law and one of the legatees and devisees under the last will and testament of her mother, Mary Moser, deceased. The suit was brought against the various defendants for the purpose of decla...
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THE COURT. The main question involved on this appeal is whether the trial court abused its discretion in awarding the custody of two minor children of tender years to the father, on the ground that the mother was not a fit and proper person to have the custody of said children. The controversy arose out of a divorce action brought by the husband against the wife on the ground of cruelty. In *Page ...
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The proceeds from a sale of personal property mortgaged to secure the payment of a promissory note not being sufficient to pay the mortgage debt in full, this action was brought to recover the balance. Defendants executed to plaintiff's assignor the note in question payable in installments and secured by a chattel mortgage on furniture. The mortgage contained the following provision: "That if the ...
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[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 727 The appellants were charged, in the first count of the information, with a violation of the provisions of section 403a of the Penal Code; in the second count, with a conspiracy to violate the provisions of that section. The defendant Yetta Stromberg was f...
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[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 109 Appellant was charged, by an information filed in the Superior Court of Kings County, with the crime of murder, with a prior conviction of a felony. He admitted the prior conviction, and entered a plea of not guilty to the charge of murder. After arraignm...
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This is an appeal by the plaintiff Rae Comstock from a judgment entered, upon the verdict of a jury, in favor of the defendant, in an action for damages for personal injuries. *Page 73 Plaintiff brought this action to recover damages from defendant for an injury to her left hand which she sustained while riding from Modesto to Oakland, California, with defendant in his automobile as his guest. On...
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This is an action for damages for personal injuries. The case was tried before a jury, which returned a verdict for plaintiff in the sum of $6,000. From the judgment entered upon this verdict the defendant Ray H. Davis prosecutes this appeal. The defendant Ray H. Davis lived on the south side of Jersey Street some distance west of Noe Street, in the city and county of San Francisco. On the day of ...
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This is an action for the conversion of twenty-seven head of bovine cattle of the alleged value of $2,871.83. The defendant is engaged in "meat packing, slaughtering, – general meat packing business." The complaint is in the usual form. The answer, in addition to denials of allegations of the complaint, alleges: "That said plaintiff on or about the 13th day of November, 1928, entered into a sale o...
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Respondent brought this action against appellant to recover the sum of fifteen thousand dollars as damages for personal injuries sustained by her in a collision between a Chalmers automobile being driven by respondent, and a Buick automobile being driven by appellant. The collision occurred on the sixth day of March, 1928, at or about the intersection of Fourteenth Avenue, East Twenty-seventh Stre...
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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 40 This is an action brought to recover possession of an automobile, or, in the event delivery cannot be had, to recover judgment for the value thereof. Judgment went for plaintiff, to the effect that upon payment by plaintiff of the entire balance due on the...
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[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 99 This is a rehearing from an opinion rendered in an appeal from a joint and several judgment against agents and their undisclosed principal for the purchase of grapes. On rehearing our attention is called to the fact that the pleadings present an issue rega...
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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 444 The appellants Martin A. Leach and Frank Hurlburt, with twenty-five other persons, were joined as defendants in an indictment containing thirty-nine counts or separate charges. The first count charged all the defendants with a conspiracy to issue and sell...
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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 17 This is an appeal from a judgment denying plaintiffs a peremptory writ of mandate directing the Board of Public Works of the City and County of San Francisco and its three members as commissioners of such board to issue a permit to plaintiffs for the erect...
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This is an action for damages. The plaintiff, who was a "trouble-man" for the San Diego Gas Electric Company, was sent at some time after 7:30 P.M. on April 1, 1926, to repair a certain street light. The evidence shows this light was not at a street intersection, but was hanging over the road on a rather sharp curve, and about two feet north of the center of the street. The plaintiff stopped 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 625 This is an appeal from a judgment for damages in an action for conversion growing out of the wrongful delivery of household goods to an officer upon a writ of attachment by a warehouseman with whom the goods had been stored. The plaintiff is the wife of C...
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This is a railroad crossing case. The suit was instituted in the superior court of Yuma county, Arizona, by plaintiff, A. Shults, against the Southern Pacific Company, a corporation, and W.C. Allen, to recover damages for personal injuries in the sum of $15,000, hospital and medical services $500, and damages to automobile $350, growing out of a crossing accident between an automobile owned and dr...
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This is a suit in equity instituted by Albert Steinfeld, as plaintiff, against the Copper State Mining Company, a corporation; Calumet and Copper Creek Mining Company, a corporation; Minnesota-Arizona Copper Company, a corporation; Martin F. Tew; John F. Shaw; and Galesburg Copper Company, a corporation, defendants, to quiet title to, or for an interest in, or for a lien upon, all or portions of c...
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Motion to Dismiss Appeal. The Boston Acme Mines Development Company, an intervener in the court below and a respondent and cross-appellant *Page 377 here, moves to dismiss the appeal of the Salina Canyon Coal Company. This court will notice the following grounds of the motion: (1) Klemm, who was a party defendant in the court below, was not served with notice of appeal; (2) th...
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This is an action to recover damages for injury to personal property on the alleged ground of negligence. The evidence showed that the plaintiff conducted a shop, in which was kept a stock of ladies' wearing apparel in a room on the ground floor of a certain building in Salt Lake City. The defendants conducted a hotel in rooms on the second and third floors of the same building. Both parties to th...
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This case involves the right and title to the use of what is called winter waters of Dove creek in Box Elder county, Utah. There is no controversy as to the use of the waters between April 15 and September 15 of each year, the period referred to as the irrigation season. The dispute arises as to the use of the waters during the period between September 15 and April 15 of each year, the plaintiff ...
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This is an action by John Funnell against the First National Bank of Cushing to recover the proceeds of an insurance policy then on deposit in said bank. The case was tried on an agreed statement of facts. Therefrom it appears that Jennie Funnell, wife of plaintiff, held a policy in the Oklahoma Aid Association, a mutual benefit association, in the sum of $1,000; that John Funnell was beneficiary ...
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The defendant in error was plaintiff in the trial court. She brought this action against her husband, Alfred Newman, for a divorce, and joined therewith Isaiah Newman, the son of Alfred Newman, as a party defendant, for the purpose of adjudicating the property rights. A separate action was commenced by plaintiff against both of these defendants to set aside a conveyance of Alfred Newman to Isaiah ...
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The parties on appeal appear in the reverse order to that in the court below, and for convenience will be referred to as they appeared there. The plaintiff brought an action to recover the price of certain hogs purchased from the defendant. The plaintiff in his petition alleged in part that at the time the defendant sold said hogs to the plaintiff the defendant represented to him that the said hog...
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This action was begun in the district court of Payne county by Sarah R. Rowley to recover upon a promissory note in the sum of $800, and to foreclose a mortgage given to secure the note, which note and mortgage were executed on the 5th day of June, 1923, by Victor A. Rowley and his then wife, Alice Rowley, defendant in error here, the same being payable to A.B. Rowley and due one year after date. ...
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This action was commenced in the district court of Tulsa county by Helen W. Tinker, defendant in error, as plaintiff, against Sylvester J. Tinker, plaintiff in error, as defendant, for divorce, on the grounds of extreme cruelty and for permanent alimony and for custody of a minor child of the parties. The trial court granted the plaintiff a divorce, awarded her the custody of the minor child and c...
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Helen W. Tinker, the defendant in error, as plaintiff, brought this action in the district court of Tulsa county against Sylvester J. Tinker, plaintiff in error, as defendant, for divorce on the grounds of extreme cruelty and gross neglect of duty, and prayed for alimony, attorney's, fees, and the custody of the minor child, of the parties and for the support and education of the child. A decree w...
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This is an appeal from a judgment of the district court of Garvin county in a suit filed by defendants in error, as tax-paying voters of district No. 32, declaring void and illegal an election held for the purpose of issuing bonds to build a schoolhouse in said district and permanently enjoining the issuance of bonds pursuant to said election. At said election 119 votes were cast, 72 of which were...
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The plaintiff in error, hereinafter referred to as the defendant, was convicted of willfully, unlawfully, and wrongfully pointing a deadly weapon, to wit, a pistol, at S.H. and D.M. Merchant, and was sentenced to pay a fine of $50 and cost and be confined in the county jail for three months. Motion for new trial was filed, considered, and overruled, and defendant excepted, and by petition in error...
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Reuben Roley, plaintiff in error, hereinafter called defendant, was convicted in the district court of Noble county of the crime of perjury and sentenced to serve a term of five years' imprisonment in the state penitentiary. This prosecution resulted from the alleged false swearing of the defendant as a witness for Arthur Birkes in his trial for murder in the district court of Noble county on the ...
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This is an appeal by the state upon a reserved question of law. An information was filed in the court of common pleas of Tulsa county charging defendant with a violation of the Motor Vehicle Law, chapter 16, Session Laws 1923, in which information it is alleged in substance that defendant operated a motor vehicle on the highways of Tulsa county in a reckless and imprudent manner, endangering pedes...
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The plaintiff in error, hereinafter called defendant, was convicted in the superior court of Pottawatomie county on a charge of robbery with firearms, *Page 140 and was sentenced to serve a term of 15 years. The defendant was jointly charged with one Tom Carpenter of the robbery of Foster John, W.H. Lions, and W.P. Tucker, and the taking from them of several items of personal property. A severanc...
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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 538 This is an action for damages growing out of the alleged conversion of 267 head of cattle, claimed to have been the property of the plaintiff at the time they were sold by the United States marshal in satisfaction of a judgment against Xavier Servel, brot...
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On September 15, 1928, claimant, Steve Delich, had been in the employ of the Lafferty Shingle Mill Company, as a night watchman, for about three months. Twenty years before that his left foot had been amputated approximately two inches in front of the point where the leg joins the foot. As a result of this amputation his foot had assumed an equinus position, that is, it had gradually angulated dow...
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This is an action to have a deed, absolute on its face, declared to be a mortgage. The case was tried to the court without a jury, and, from a decree in favor of defendant, plaintiff appeals. But one question is presented by the record: Are the findings and decree sustained by the evidence? On April 16, 1925, plaintiff was the owner and in possession of 470 acres of farming land situate in townshi...
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Ray Madsen and Newell Madsen were placed under arrest on the afternoon of July 6, 1927, by the defendant, acting as sheriff of Teton county, and at 3 P. M. on that day were jailed in the county jail at Driggs. The warrants under which they were taken into custody were in proper statutory form. They commanded the sheriff to arrest the plaintiffs forthwith and bring them before the probate judge of ...
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On July 22, 1928, John H. Stewart, a tractorman employed by the Bunker Hill and Sullivan Mining and Concentrating Company, undertook to drive a tractor up a steep incline to a point where fellow-workmen were clearing out stumps and stones on the mountainside for the location of an air-compressor. The clearing was being done by hand with the aid of a plow, the tractor not having been used for sever...
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On July 22, 1928, John H. Stewart,, a tractor-man employed by the Bunker Hill and Sullivan Mining and Concentrating Company, undertook to drive a tractor up a steep incline to a point where fellow-workmen were clearing out stumps and stones on the mountainside for the location of an air-compressor. The clearing was being done by hand with the aid of a plow, the tractor not having been used for sev...
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This is an action in conversion to recover $1181.41, for clover and alfalfa seed alleged to have been wrongfully converted by Rigby National Bank. This is the alleged value of one-half of the seed grown by Charles W. Kelch in 1925 upon certain rented land. In proving title plaintiff offered in evidence the unrecorded assignment of an unrecorded instrument entitled "Idaho Farm Lease," by the terms ...
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Appeal and Error 4CJ § 2986 p. 1004 n. 63. Taxation 37 Cyc. p. 1051 n. 1; p. 1464 n. 83; p. 1479 n. 88. *Page 2 OPINION OF THE COURT Appellant, claiming to be the owner of two parcels of land in fee, sued in statutory form to quiet title. She relied upon tax deeds for assessments for 1904 as to one parcel, and for 1908 as to the other. She did not succeed, however, in in...
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This action was instituted by respondents to recover for personal injuries, property damage and special damages sustained by respondent Mrs. Tobin. The damages were claimed as the result of being *Page 659 struck by an automobile, owned by appellants and operated by Mrs. Goodwin, at about 5:30 p.m. on April 25, 1929, in Seattle. The accident occurred on Westlake avenue north, a paved public highw...
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Alice Churchill died April 12, 1927, and a few weeks thereafter Barbara Balletti, a daughter of Mrs. Churchill, was appointed administratrix of her estate, T.F. Mentzer acting as her attorney. Notice to creditors was regularly published, commencing *Page 641 July 8, 1927, and an inventory of the property belonging to the estate was prepared and signed by the administratrix July 8, 1927, the prope...
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Respondent, Hadley, in the superior court of King county, on the 8th day of November, 1929, obtained a judgment against the defendant Ervin. Appellant, Lowman Hanford Company, on the 21st day of November, 1929, commenced an action in the superior court of King county against the defendant Ervin, and, on the same day, caused a writ of attachment to be issued and delivered to the sheriff, and, by v...
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This is an action upon a policy of life insurance brought by the beneficiary named in the policy. The defendant Oregon Life Insurance Company defended upon the ground that the insured committed suicide within one year from the date of the issuance of the policy, and that, under the terms of the policy, in such an event, the company was liable only for premiums actually paid. The premiums paid wer...
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This is an action to recover a broker's commission of five per cent upon the sale price of a large body of timber land located in the Hood's canal district. The cause was tried to the court, sitting without a jury, resulting in findings of fact and conclusions of law favorable to the defendant, and a judgment based thereon dismissing the action. The plaintiff has appealed from the judgment of dism...
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In this action of ejectment, brought by other parties as plaintiffs, in which appellants were *Page 682 substituted, it is sought to quiet title to an eight-foot strip of a certain lot claimed by respondents by adverse possession for over ten years. The case was tried to the court without a jury, and findings, conclusions and judgment awarded respondents, from which this appeal is taken. The prop...
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This action is based upon a written indemnity contract. The cause was tried to the court without a jury, and resulted in findings of fact from which the court concluded that a recovery could be had. Judgment was entered in favor of the plaintiff for the sum of $1,901.43, from which the defendant appeals. The facts are these: The Burnett Construction Company was a corporation engaged in the contrac...
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Herbert G. Hager, sixteen years of age, was charged by complaint, in the juvenile department of the superior court of Pierce county, with burglary in the second degree and grand larceny. Through his attorney, he demanded a jury trial. The court entered an order transferring the case "to the prosecuting attorney in and for the county of Pierce, state of Washington, for prosecution under the provisi...
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In Gregory v. Peabody in 149 Wash. 227, 270 P. 825, and153 Wash. 99, 279 P. 102, may be found our decisions disposing of two former appeals of this case. The judgment here in question was rendered by the superior court awarding to the plaintiff recovery upon a verdict of a jury following a new trial. The defendants have appealed to this court *Page 675 from that judgment, claiming trial errors pr...
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In Banc. This is a suit brought by Oscar Olsen as administrator of the estate of Leonard Olsen, deceased, and Myrtle Crosland, against S.P. Crow, S.M. Crow and M. Crow, to annul a judgment recovered in an action at law. Oscar Olsen, Leonard Olsen now deceased, and Myrtle Crosland were brothers and sister, and Hannah Olsen hereinafter referred to is the wife of Oscar Olsen. The defendants were part...
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This is a suit by plaintiff against the Lane County State and Savings bank for an accounting. Plaintiff deposited with the defendant bank the sum of $9,000. *Page 323 She was never at Florence, Lane county, Oregon, where said bank is located, and she never knew Henry Bergman, president and executive manager of said bank. Her brother, E.S. Downing, represented her in the dealings between her and H...
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This case was consolidated and tried with the case of Pauline Downing v. Lane County State and Savings Bank, just decided. Stella Downing is the wife of E. S. Downing and they lived at North Bend, Coos county, Oregon, about 40 miles south of Florence in Lane county, where defendant bank was located. Plaintiff makes the same contention, with different funds deposited by her in said bank, as made...
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I agree with all that is said in the foregoing opinion, except in so far as it limits defendant's recovery to 5,000 shares of stock. Plaintiff testified: "I have between five and six thousand shares." He also said that he had transferred 123,500 shares to his brother in November, 1927, retaining in himself a proxy to vote the stock. He expected to get some of that back after reaching a settlement ...
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This is another ease which was consolidated with the case of Pauline Downing against the same defendants and the case of Stella Downing, just decided. Jane Chilson is a sister of Stella Downing and lived, during the period of time that her funds were being managed by Henry Bergman, executive officer of defendant bank, in California, but spent a large portion of her time in North Bend with her s...
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This is an action to quiet title to certain lands situated in Toole county. The cause was tried to the court without a jury. Judgment was entered for plaintiff, from which defendants appealed. *Page 36 Under appropriate pleadings, evidence was introduced showing that plaintiff secured a patent to the lands from the United States on January 27, 1916. On June 27, 1922, she leased them to C.L. Emmon...
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The bond here sued upon was conditioned that defendant city treasurer "shall account for and pay over and deliver to the person or officer entitled to receive the same, all moneys or other property that may come into her hands as such city treasurer." This she has not done. Prima facie, the treasurer and the sureties are liable on the bond. But, since the loss was occasioned by depositing the mone...
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Citing: Jewett v. Jewett, 73 Mont. 591, 595, 237 P. 702;McKercher v. Green, 13 Colo. App. 270, 58 P. 406; Mercein v. People, 25 Wend. (N.Y.) 64, 35 Am. Dec. 653; Hurd on Habeas Corpus, 532; Commonwealth v. Hammond, 10 Pick. (Mass.) 274;People v. Chegaray, 18 Wend. (N.Y.) 637; In re McDowle, 8 Johns. (N.Y.) 328; State v. Richardson, 40 N.H. 272, 276;People v. Wilcox, 22 Barb. (N.Y.) 178, 179; Ellis...
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Margaret McBride taught the Rocker School, in Silver Bow county, for five years, under a contract with the school board, closing her last term in June, 1928. On April 25, 1928, Miss McBride received the following notice: "You are hereby notified to kindly put in your application for next term if you want the school. Miss Lillian Hawkins, Clerk of the Board." She thereupon filed the usual applicati...
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Citing on the proposition that mortgage of land included certificates of the capital stock of a mutual irrigation company though not mentioned therein: San Francisco Sulphur Co. v.Aetna Indemnity Co., 11 Cal. App. 695, 106 P. 111;Swedish-American Nat. Bank v. Connecticut Mut. Life Ins. Co.,83 Minn. 377, 86 N.W. 420; Stanislaus Water Co. v. Bachman,152 Cal. 716, 15 L.R.A. (n.s.) 359, 93 P. 858; San...
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The St. Martin State Bank of Roscoe, Minnesota, brought action to recover from the defendant, Joseph M. Steffes, on a promissory note of which, it is alleged, he was a maker. Defendant denied signing the note, but, on the sole issue joined, a jury found in favor of plaintiff, and judgment was duly entered in its favor. Defendant moved for a new trial; the motion was overruled; and defendant appeal...
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Citing in support of the contention that under the allegations of negligence in the complaint, if established, defendants are liable: Tremblay v. Harmony Mills, 171 N.Y. 598, 64 N.E. 501;Stephens' Admr. v. Deickman, 158 Ky. 337, 51 L.R.A. (n.s.) 309, 164 S.W. 931; Hippodrome Amusement Co. v. Carius,175 Ky. 783, L.R.A. 1918E, 377, 195 S.W. 113; Korricks Dry GoodsCo. v. Kendall, 33 Ariz. 325, 58 A.L...
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Rights to the use of the waters of Ophir Creek were adjudicated by the district court of Powell county in a decree bearing date March 28, 1928, hereafter referred to as the original decree, wherein John R. Quigley and others were plaintiffs and Ophir Mining Company and others were defendants. These rights, bearing various dates from 1865 to 1912, aggregate 1,650 inches. Three of the earliest, aggr...
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L. W. BURGESS and E. B. Adams, engaged in the *Page 581 practice of law under the firm name of Burgess and Adams, herein called the plaintiffs, sued A. M. Mutter, herein called the defendant, for the balance of a fee claimed to be due them under a contract. They recovered a judgment for $800, the full amount demanded, which judgment Mutter seeks to reverse. The question presented for our decision...
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IN an information filed in the district court, the defendant, D. J. Mooney, was charged with a violation of section 3740, C. L. 1921, and, upon arraignment, plead not guilty. It was stipulated that the case might be tried to the court upon an agreed statement of facts, and without the intervention of a jury. Upon the trial, the defendant moved that the case be dismissed, and he be discharged, beca...
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THIS is a workmen's compensation case. James D. Connell was engaged in the automobile business in Denver. He employed Frank Cunningham, a carpenter, to construct a cabin for him at Indian Hills, a mountain resort some distance from Denver. While engaged in constructing the cabin, Cunningham was injured. Connell carried insurance with the Continental Casualty *Page 578 Company. The insurance polic...
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THIS is a companion case to Continental Casualty Co.v. Connell, et al., 87 Colo. 577, 290 P. 273, just decided. The Industrial Commission granted compensation in favor of Cunningham as against Connell and the Casualty Company. The Casualty Company sought a review by the district court, making Cunningham and the commission defendants. Though served with a summons, Connell failed to appear, and his ...
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delivered the opinion of the court. This is an action to recover possession of certain cases of eggs stored in the warehouse of the Mountain Ice and Coal Company. At the close of the plaintiff’s case, on motion, the court directed a verdict for the defendant, the Jagger Produce Company, and entered judgment accordingly. To review that judgment the plaintiff, the Sherman Mercantile *553 Comp...
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PLAINTIFF Eisenmann is the record owner of lots 40 and 41 in block 12 of Lake Avenue Addition, former town of Bessemer, now a part of the city of Pueblo. Each lot in the block, according to the original recorded plat of the property, is supposed to have a frontage of 25 feet. Defendant Lundquist is the record owner of lots 39, 38 and 37 in the same block, which lots lie immediately to the south of...
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THE object of this action by Troutman against Stiles is to recover the sum of $9,600 from the latter as damages *Page 598 which resulted to the plaintiff, as he says, by reason of certain false and fraudulent representations by the defendant as to the character and value of 320 acres of farm lands in Phillips county, Colorado, which Stiles owned and which he exchanged for a stock of merchandise o...
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THE information in this cause was filed by the people on the relation of the Attorney General charges that Stephen F. Thomas, without having a license from this court, advertised, represented and held himself out as an attorney at law in this state, contrary to section 6017, C. L. 1921, and prays that he be punished for contempt of this court. The specific charges are that: "(a) On, to-wit, Decemb...
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CORA R. Hedlund seeks the reversal of a judgment recovered against her by her husband, Arthur L. Hedlund. The husband will be referred to as the plaintiff, and the wife as the defendant. The plaintiff and the defendant were married in 1912. The plaintiff was employed at Hugo, in this state, by a railroad company. In 1921 he was transferred to Denver, and in 1922 he was transferred to Columbus, Neb...
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THE Industrial Commission awarded compensation to Alwilda and Leona Wohlcke, wife and daughter, respectively, of Fred J. Wohlcke, who was killed on September 10, 1927, while mucking in a mining property of the Mineral Chief Mining Company near Georgetown, Colorado. The district court of the City and County of Denver affirmed the award. J. H. and Horace K. Devereux, against whom the award was made,...
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THESE parties occupy the same relative position here as in the trial court and for convenience we designate them as there. Plaintiff, claiming to be the owner of five shares of stock in defendant corporation, as evidenced by certificate No. 172 which he held, brought this action in mandamus to compel a transfer thereof to him on the books *Page 606 of the company. Defendant's motion for judgment ...
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This is an appeal by the defendant from a judgment in favor of the plaintiff in an action brought to quiet title to certain bars of gold bullion in the possession of the United States Mint at San Francisco. The plaintiff is the assignee of the interests of three corporations: *Page 766 Central Eureka Mining Co., Kennedy Mining Milling Co. and Argonaut Mining Co., all of which own and operate gol...
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This action was brought by plaintiff, a creditor of a beneficiary under a certain trust, to recover the sum of $5,000, said amount being the entire interest which such beneficiary had under the trust. The action is against Bert G. Doak and Fred M. Doak, individually and as trustees, and Robert J. Finnie, upon alleged rights created *Page 32 by virtue of certain attachment and garnishment proceedi...
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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 3 The petitioner herein applied for a writ of review, whereby he sought to have a certain order of the Superior Court in and for the County of Santa Barbara reviewed and annulled. The said order relates to proceedings had in said court resulting in the attemp...
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The respondents purchased from one James Paul a Chrysler automobile of a specified description by serial and motor numbers, for which they instituted this action in replevin against appellant, and took from his possession a Chrysler car bearing different numbers. The defendant by a cross-complaint alleged that he had purchased from one H.B. Washburn the car last mentioned, and that it had passed t...
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This is an appeal from a decree of partial distribution. The facts are as follows: The *Page 268 decedent executed his last will and testament on August 15, 1914, by which he declared his property to be his separate estate, that "no other person or persons have any interest therein except my only son and only daughter" and that he executed the instrument "for the sole purpose of having" his "prop...
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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 245 THE COURT. The above action was brought to recover from the estate of Eugene E. Magnus, deceased, certain rent which it was alleged the decedent was under obligation to pay. The decedent was the lessee of an apartment under a written lease from Arthur J. ...
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On November 6, 1926, the plaintiffs, who were husband and wife, were riding in an automobile on the highway between San Diego, California, and Tijuana, Mexico. At a point on the highway, approximately ten miles southerly from the city of San Diego, their car came into collision with one driven by Conway Wiseley, and Elizabeth C. Hanchett was injured. A trial by jury was waived and the trial court ...
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Edward Johnson died testate in the county of San Diego on October 30, 1927. In due course a petition for partial distribution was filed, in which it was alleged that certain real property situated in San Diego, which had been the home of the deceased in his lifetime, was devised to Mrs. Julia Berg and Helga Helgesen, and praying that said real property be distributed to them. The only question pre...
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Respondent was, at all times material hereto, Chief of the Division of Labor Statistics and Law Enforcement of the Department of Industrial Relations of the State *Page 273 of California. Appellant was the owner and operator of two or more plants from which she sold water. One of these plants was located at El Centro, California, and another at Brawley, California. It is alleged in the complaint ...
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The plaintiff: in error, hereinafter referred to as the defendant, ivas charged by information with possession of about one and one-half pints of intoxicating liquor, tO' wit, whisky, with the intent on the part of the defendant to sell, give away, transport, and otherwise unlawfully furnish to others; was convicted and sentenced to pay a fine of $200 and costs of prosecution, *155 and be confi...
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OPINION OF THE COURT This action for malicious prosecution is the aftermath of State v. Vincioni, 30 N.M. 472, 239 P. 281, where most of the essential facts will be found stated. At the close of plaintiff's case the trial court directed a verdict for defendants, ruling that plaintiff had failed Malicious Prosecution 38CJ § 26 p. 398 n. 26; § 51 p. 415 n. 92; § 148 p. 476 ...
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OPINION OF THE COURT Plaintiff (appellee) sued defendants (appellants) on account, to recover for fishing tools sold to be used on an oil and gas well for the purpose of fishing out tools that had been lost in the well. The account consisted of several items. Plaintiff recovered a money judgment and was decreed to have a materialman's lien and foreclosure thereof. Defenda...
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Appeal and Error 3CJ § 623 p. 727 n. 99. *Page 92 OPINION OF THE COURT Appellee was employed by appellant as driver of a laundry wagon. The written contract provided that appellee would not, within a period of two years after leaving the service of the laundry, for himself or for any other laundry or dry cleaning establishment, solicit or deliver orders in the city of Sa...
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OPINION OF THE COURT Inasmuch as we have determined to make a disposition of this case different from that indicated in the opinion heretofore handed down, that opinion will now be withdrawn. On September 11, 1925, the appellant, Woo Dak San, alias Woo Foo, was charged by information with the murder of one Yee Foo in the district court of Grant county. On the same day the...
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OPINION OF THE COURT This case is controlled by Koch v. Ziegler, No. 3417,290 P. 321, just decided. Though the pleadings, the evidence, and appellee's position are somewhat different, appellant's contentions are the same, and must be similarly disposed of. Appellant did, in this case, except to certain findings that they were immaterial to the issues. But, if those except...
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Plaintiff, Grace Alward, and defendant, James Alward, intermarried at Sandpoint, Idaho, August 18, 1923, plaintiff being then sixteen years of age. One child', a daughter, now six years of age, was born 'to the couple. During the month of December, 1928, plaintiff instituted this action, praying for a divorce on the grounds of cruelty and nonsupport, and asking that the custody of her daughter be...
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This is an application for a writ of prohibition. E.E. Brown and wife began an action of forcible entry and detainer in the superior court of King county against Christian A. Nitsche and wife. After the issues were framed, the cause came on for trial before the court without a jury. At the conclusion of the evidence of the plaintiffs, the defendants challenged the sufficiency thereof and asked for...
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A. F. Cole, owner and operator of the Empire Garage in the city of Kelso, and two of bis employees were charged by information with the crime of being jointists. The trial resulted in acquittal of "W. L. Kichards and verdict of guilty as-to the other defendants. From the judgment and sentence pronounced in accordance with the verdict, defendant A. F. Cole prosecutes this appeal. *30 Insisting...
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This proceeding is before us on an application, made originally in this court, for a writ of prohibition. The facts giving rise to the proceeding are, in substance, these: The respondent John Bloodsworth is a resident of Asotin county, engaged in the business of growing fruit, having his orchards in the county named. The petitioner, Snoboy-Pacific Distributors, is a corporation engaged in the busi...
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The plaintiff, Miss Jones, seeks recovery of total permanent disability benefits under a policy of insurance issued to her by the defendant, insurance company. The cause proceeded to trial in the superior court for King county, sitting with a jury. At the conclusion of the trial, counsel for the company challenged the sufficiency of the evidence to entitle Miss Jones to any recovery, and moved for...
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Alice Albright and L.S. Fowler were charged by information with the crime of unlawful possession of intoxicating liquor, with intent to sell the same. The trial resulted in the acquittal of Fowler and verdict of guilty of simple possession of intoxicating liquor as to the other defendant. From the judgment and sentence pronounced in accordance with the verdict, defendant Albright has appealed. [1]...
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The plaintiff filed this suit in the district court of Tulsa county to recover an alleged balance due on a promissory note given by Jonathan Haynes, Thos. Haynes, Wm. W. Haynes, and Wm. H. Shanger, who were named as defendants, but Wm. W. Haynes is the only defendant upon whom service was had. The case come here upon an appeal by the plaintiff from order of the court of common pleas of that county...
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The plaintiff in error, hereinafter for convenience referred to as the defendant, was charged with selling or furnishing intoxicating liquor, was tried and convicted, and his punishment fixed at a fine of $50 and 30 days in jail, from which judgment the defendant has appealed. The testimony on behalf of the state, in substance, shows that Roy and Floyd Sloan got in the car of the defendant in t...
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The plaintiff in error, hereinafter called defendant, was convicted in the county court of Pottawatomie county of having unlawful possession of one and one-half gallons of whisky, and his punishment fixed at a fine of $500 and confinement in the county jail for a period of five months. The evidence of the state was that the officers having a search warrant searched the premises of the defendant; t...
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The plaintiff in error, hereinafter referred to as the defendant, was convicted of burglary in the second degree, and his punishment fixed at two years in the state penitentiary; from which judgment the defendant has appealed to this court. No brief has been filed in support of the eight errors assigned by the defendant, alleged to have been committed by the trial court, and no appearance made ...
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The plaintiff in error, hereinafter called the defendant, was convicted of obtaining one car of hay of the value of $106.44, by means of and by the use of one certain false and bogus check, and was sentenced to pay a fine of $200 and be imprisoned in the penitentiary at McAlester for two' years, from which judgment the defendant has appealed to this court. The petition in error and case-made wa...
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The plaintiff in error, hereinafter called the defendant, was by information charged with the sale of two pints of intoxicating liquor to Grady Lancaster, on the 29th day of December, 1927; was tried, convicted, and sentenced to pay a fine of $200 and costs and be confined in the county jail for a period of 30 days. From which judgment the defendant by petition in error and case-made attached has ...
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The plaintiff in error, hereinafter called the defendant, was by information charged with the crime of transporting intoxicating liquors from one place in Kiowa county, state of Oklahoma, to another; was tried, convicted, and sentenced to pay a fine of $375 and to serve 120 days in the county jail. From the judgment the defendant has appealed. *Page 179 The testimony on behalf of the state, in su...
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The plaintiff in error, hereinafter called defendant, was adjudged guilty of a direct contempt in the district court of Creek county and was sentenced to pay a fine of $75 and to serve 10 days in the county jail. The record discloses a state of facts about as follows: In a suit in the district court of Creek county wherein D.B. Jones was plaintiff and J.W. Thompson was defendant, the said Thompson...
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The plaintiff in error, hereinafter called the defendant, was convicted of driving an automobile while intoxicated, and his punishment fixed at confinement in the state penitentiary at McAlester for a term of six months, and a fine of $500. From which judgment the defendant has appealed. The evidence on the part of the state, in substance, shows that on the 21st day of February, 1927, the defen...
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The plaintiff in error, hereinafter called defendant, was convicted in the district court of Garfield county of having the illegal possession of narcotic drugs, and was sentenced to serve a term of three years in the state penitentiary. The appeal was lodged in this court July 19, 1929. Thereafter defendant gave an appeal bond and was released from c onfinement. On July 15, 1930, the state file...
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The plaintiff in error, hereinafter called defendant, was convicted of adultery in the district court of Washita county, and was sentenced to serve a term of three years in the penitentiary. The evidence for the state is that defendant became enamoured with the wife of his nephew, and that they committed an act of sexual intercourse about July 15th, and on August 8th defendant took her in his car ...
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The plaintiff in error, for convenience referred to as the defendant, was convicted on a charge of maintaining a public nuisance by operating what is commonly known as the Nash rooms in the town of St. Louis, Pottawatomie county, the said rooming house being a place where spirituous, vinous, and malt liquors, which contained as much as one-half of one per cent, alcohol, measured by volume, and ca...
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The plaintiff in error, hereinafter for convenience called the defendant, was by information charged with Floyd Burgell, Tom Burgell, George Griffith, and D.P. Owen, with unlawfully, willfully, wrongfully, and knowingly manufacturing intoxicating liquor, with the unlawful and willful intent on the part of the defendants to barter, sell, give away, and otherwise dispose of the same unlawfully, was ...
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The plaintiff in error, hereinafter called the defendant, was by information charged with *196 the sale of one pint of whisky to Grady Lancaster, on the 28th day of December, 1927; was tried, convicted, and sentenced to pay a fine of $250 and costs and be confined in the county jail of Payne county for 90 days at hard labor. From which judgment the defendant by petition in error and case-made h...
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This is an original proceeding in habeas corpus. It is made to appear that on June 14, at the negro village of Clearview in Okfuskee county, petitioner Luttie Davis, with a Colts revolver, shot one J.E. Thompson four times, killing him almost instantly. Three of the wounds were inflicted from the rear, two of them near the backbone. All the parties are negroes. The deceased had been a deputy sheri...
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This is an original proceeding in habeas corpus. Petitioner alleges that he is confined at the hospital for insane at Vinita, Okla.; that he was adjudged insane by the county court of Caddo county and committed to the asylum at Norman, Okla., and that it was afterwards adjudged by the said county court that he was not insane and he was ordered discharged. Prior thereto he had been paroled by the p...
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This is an original proceeding in habeas corpus, the facts involved are similar to those in the case of In re Habeas Corpus of David M. Reynolds, *Page 192 48 Okla. Cr. 189, 290 P. 357, just decided. For the reasons there stated, the case is dismissed. DAVENPORT, J., concurs. CHAPPELL, J., absent, not participating....
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The plaintiffs, Fowler, a deputy county treasurer, and Davis and Coates, deputy county sheriffs, of Utah county, on their petition in the district court were granted a writ of mandate requiring the board of commissioners of that county to order paid, which they had refused to do, salaries of the plaintiffs for services rendered by them as such deputies and as certified to the board and approved by...
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This is an appeal from a judgment in favor of the plaintiff Inland Engineering Construction Company against *Page 439 the defendants Maryland Casualty Company, surety, and Farr, Lashus Farr, a copartnership – sometimes referred to herein as Farr – entered upon a verdict after trial by a jury. About January, 1925, the Inland Engineering Construction Company entered into a contract with the stat...
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In 1923 the defendant Boyden made a contract with the defendant United Mercury Mines Company, whereby he agreed to construct and install, upon mining property of the company in Valley county, a mercury ore reduction plant for the agreed compensation of $40,000, $15,000 to be paid in stock of the company, and $25,000 to be paid out of fifty per cent of the proceeds of mercury produced by the plant....
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This case involves analogous questions to those in BlaineCounty Canal Co. v. Hansen (No. 5401), just decided,ante, p. 649, 292 P. 240. Appellants are settlers, contract holders and purchasers under a Carey Act project situate in Butte county, Idaho. They are likewise stockholders in respondent Blaine County Canal Company, and bring this action in the nature of an accounting as to the application o...
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Action to foreclose a mortgage on farm lands in Caribou county, Idaho. On November 23, 1918, Joseph Glen Davis and wife executed three mortgages to the North American Mortgage Company, of Leeuwarden, Holland, covering the east half of the northeast quarter of section 33, and the west half of the northwest quarter of section 34, township 8 south of range 42 E., B. M., in Bannock county, Idaho. The ...
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Defendant was convicted of violating the prohibition laws as a second offender, and appeals from the judgment. The evidence taken at the trial is not before us, the attack centering upon a construction of the statute authorizing a penitentiary sentence in the case of second offenders. The charging part of the information reads as follows: "Wherefore, I, Abe Goff, Prosecuting Attorney of Latah Coun...
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Respondent brought this action to recover the possession of 160 acres of land situate in township 62 north, range 2 E., B. M., the "Western Bell" tunnel site, and the "Wildfire," "Ella L.," "Etta B.," "Lost Child," "Silver Crown" and "San Francisco" lode mining claims (unpatented), situate in the Yaak mining district, all in Boundary county, Idaho, together with the dwelling-houses, bunkhouses, ba...
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This action was originally instituted as one in equity to reform a deed given by respondents to appellant conveying certain property for highway purposes, upon the theory of a mutual mistake as to the property intended to be conveyed. Upon trial of the cause the court found there had been no mutual mistake, but ordered the pleadings to be amended and reformed so as to permit recovery for the marke...
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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 645 We have here an appeal from a judgment upon three causes of action entered October 13, *Page 646 1928; an appeal from an order denying a new trial, dated November 26, 1928; and an appeal from a decree and judgment on a fourth cause of action entered Marc...
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This is an action upon a promissory note. The due date of the note was October 1, 1922, and on that date the cause of action accrued. The complaint was filed and this action was begun on the twenty-seventh day of October, 1927, five years and twenty-seven days after the note became due. The limitation is five years unless tolled. The only defense interposed is the statute of limitations. Plaintiff...
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Plaintiffs and appellants, land owners in Boundary county, paid the last half of their duly levied taxes for the year 1925 by delivering to Inez Cave, treasurer and tax collector, their personal checks drawn on the First State Bank of Bonners Ferry. At the time they had ample funds on deposit to pay the checks, had they been presented. On July 6, 1926, without the cheeks ever having been presented...
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The plaintiff is a corporation and taxpayer within the City of Sandpoint, Bonner county. By its complaint against the city and certain officials thereof in this action it was alleged, among other things, that at a city election a bond issue was authorized for the purpose of construction of a municipal power plant, but that no part of *Page 571 the bonds have been issued and the city has no funds ...
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The Federal Land Bank of Spokane was plaintiff in two actions against Curts and others to foreclose a real estate mortgage, as mortgagee. The transcript in the one case (No. 4949) shows all the defendants defaulted, decree of foreclosure was entered and order of sale made, the sale to occur March 27, 1926. In a letter to the sheriff of Washington county (by whom the sale was to be conducted) dated...
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Substantially, the complaint in this action alleges that respondent Furcht Auto Company is a copartnership consisting of J.D. Furcht and Irene A. Furcht, husband and wife; that respondent Myers executed to the Furcht Auto Company a conditional sale contract and the latter company by J.D. Furcht made a written assignment of the contract to appellant and guaranteed its payment by the purchaser of th...
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This is an action on a promissory note formerly secured by chattel mortgage on approximately 1,100 head of sheep, not including accretions, increase or *Page 669 wool. Appellant alleged the sale of the mortgaged property, and application of the proceeds thereof to the mortgage indebtedness, by consent of defendants, and prayed for judgment for a balance of $17,342.26, interest, and attorney's fee...
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OPINION OF THE COURT Both employee and employer, hereinafter referred to as plaintiff and defendant, respectively, have appealed from a judgment under the Workmen's Compensation Act (1929 Comp. § 156 – 101 et seq.), awarding to the former (who was admittedly injured in the course of his employment, and whose weekly wage was $24.50) compensation for 100 weeks at $6.12 1/2,...
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Inasmuch as the names of the appellants were not included anywhere in the record of the proceedings and no reference whatsoever made to them by citation, notice or otherwise, and not being named as absent heirs and an attorney appointed by the court to *Page 433 represent them, there was no semblance of notice of any kind given to appellants such as is contemplated by law. The right of inheritanc...
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ON PETITION FOR REHEARING Rehearing denied. *Page 1 ...
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The defendant set up as a defense a claimed contemporaneous oral agreement which he alleged to be the sole consideration for the execution and delivery of the note. It may be admitted that evidence of such contemporaneous oral agreement is admissible as against parties not in due course to show what the consideration was or that the instrument was delivered subject to a condition. Martineau v. Han...
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On Petition for Rehearing Rehearing denied. ...
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The plaintiff in error, hereinafter called defendant, was convicted in the district court of Kay county on a charge of driving a car while intoxicated, and his punishment fixed at imprisonment for eight months and 10 days in the state penitentiary. The evidence of the state was that the defendant, accompanied by an Indian woman named Martha Eschel-man, was driving in an automobile on the public...
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The plaintiff in error, hereinafter called defendant, was convicted in the county court of Caddo county on a charge of having possession of a still worm, and his punishment fixed at a fine of $100 and confinement in the county jail for a period of 60 days. The evidence of the state was that the officers went to defendant's premises and without a search warrant *Page 250 searched the timber about ...
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The plaintiff in error, hereinafter called defendant, was convicted in the county court of Greer county on a charge of having unlawful possession of mash, and his punishment fixed by the jury at a fine of $50 and confinement in the county jail for 30 days. The evidence of the state was that the officers had a search warrant and, searching the premises of the defendant, found one whisky still, o...
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The plaintiff in error, for convenience referred to as the defendant, was convicted of embezzlement and his punishment fixed at imprisonment in the state penitentiary for one year. Motion for new trial was filed, considered, and overruled, and defendant duly excepted, and by petition in error and case-made attached appealed to this court. *Page 246 The facts, in substance, as disclosed by the sta...
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The plaintiff in error, hereinafter called the defendant, was convicted of driving an automobile while intoxicated, and his punishment fixed at confinement at the state reformatory at Granite for a term of one year and to pay a fine of $50 and costs, from which judgment the defendant has appealed. The evidence on the part of the state, in substance, shows that on the 14th day of September, 1928, t...
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The plaintiff in error, hereinafter called defendant, was. convicted in the county court of Comanche county on a charge of having unlawful possession of intoxicating liquor, and his punishment fixed at a fine of $500 and confinement in the county jail for 180 days. The evidence of the state was that the officers, having a search warrant, searched the premises of the defendant and found 104 gall...
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Plaintiffs, the owners of a brick building in the city of Everett, the upper story of which they had rented to a tenant who was conducting an apartment or lodging house therein, instituted this action against the sheriff of Snohomish county and two of his deputies, the commissioner of public safety of Everett and the chief of police of that city, for the purpose of recovering damages for injuries ...
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Pursuant to an agreement entered into on December 12, 1928, appellant purchased from the respondents a certain automobile freight business covered by a certificate of convenience and necessity and operating from Seattle to Des Moines, and thence further south. The physical equipment of the business purchased consisted of three trucks and a few tools and accessories. The purchase price was to be si...
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A life insurance policy issued by tbe defendant upon the life of tbe plaintiff obligated tbe insurer to pay to tbe insured a stated monthly income for permanent total disability and to waive payment of premiums during tbe continuance of disability. Tbe plaintiff brought an action upon that contract to enforce payment for eleven months ’ total disability, and to compel tbe return of premiums paid ...
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The relator, by affidavit filed in the superior court, sought the issuance of a writ of mandate to compel the transfer on the books of the defendant corporation of certain shares of its capital stock. Omitting the formal averments, the application for the writ reads: "That the above named relator is the owner of 20 shares of class A stock of Superior Service Laundries, Inc., evidenced by certifica...
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In all essential particulars, the facts and issues in this case are identical with the facts and issues in State ex rel.Hyland v. Superior Service Laundries, ante p. 1, 290 P. 427, just decided, and the decision in that case governs this case. The judgment of the trial court is therefore reversed, with directions to overrule the demurrer and proceed as indicated in the opinion filed in the case to...
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This is an original proceeding in this court, wherein relator seeks to prohibit the superior court for Okanogan county and the judge thereof from assuming jurisdiction to vacate a judgment entered in a certain cause in that court on April 15, 1930. The action in the lower court was one wherein F.R. Woodbury Lumber Company, a corporation, was plaintiff, and George Seaton and Bell Seaton, his wife, ...
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Upon the theory that their property was destroyed by fire caused by sparks negligently permitted *Page 53 to be emitted from a locomotive owned and operated by the defendant railway company, A.O. Nelson and George M. Leonard, owner and lessee, respectively, of a barn near the defendant's line of railway, instituted separate actions to recover of defendant for destruction of that building and the ...
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THE COURT. This appeal is from a judgment for five thousand dollars damages, entered upon a verdict for plaintiff in an action for personal injuries sustained by plaintiff while riding as a guest in defendant's automobile. Defendant admits that he was negligently operating the automobile at the time of the accident, and that his negligence was a proximate cause of the injuries of which complaint i...
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This is an appeal from an order granting the defendants' motion for a new trial. The action is to recover damages for the alleged negligence and unskilfulness of the defendants in a surgical operation performed by them on the minor plaintiff. The operation is known as a tracheotomy and consists of the making of an incision in the trachea for the purpose of permitting air to reach the lungs of the ...
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The County of Los Angeles was granted an alternative writ of mandate, directed to the respondent as chairman of the board of supervisors of the county, commanding him to execute and deliver to the state of California conveyances of certain described parcels of real property as provided for in a resolution of authorization passed at a duly assembled meeting of that body, or to show cause why he sho...
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THE COURT. Plaintiff brought an action against several defendants, including appellant, to foreclose a mortgage on real property in Tulare County. Appellant, although duly served, failed to appear and answer, and his default was duly entered. In accordance with the default judgment against appellant and other defendants, a decree of foreclosure and order of sale was made by the trial court, which ...
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In these two proceedings the petitioner has sought to have reviewed a portion of a certain order made and entered by the Superior Court in and for the County of Los Angeles, sitting as a probate court, wherein and in the Matter of the Estate of Wein, pending therein, it undertook to order the petitioner herein to return to the executors of said estate the sum of $450, which the petitioner had ther...
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This action was commenced by plaintiffs to recover damages alleged to have been suffered by reason of certain false and fraudulent representations of defendants. Defendants interposed a general and special demurrer to the complaint, which was sustained with leave to amend. Plaintiffs thereupon filed an amended complaint, and again a general and special demurrer was sustained with leave to amend. ...
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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 769 This is an application for a writ of mandate to compel the State Controller to honor a warrant drawn in favor of A.F. Mood in the sum of $2,478. It is alleged in the petition that pursuant to the Land Settlement Act (Stats. 1917, chap. 755, p. 1566, as am...
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THE COURT. This appeal is taken from a judgment entered upon an order sustaining a demurrer without leave to amend to appellant's third amended complaint. The demurrer was sustained on the ground that the cause of action was barred by the statute of limitations. The complaint is based upon the theory that it is an action in equity to terminate a constructive trust, and to compel respondent, as tru...
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The plaintiff appealed from an adverse judgment in an action for collection of two promissory notes executed by the defendant Carrier and praying that the title to certain real property alleged to have been pledged as security therefor be quieted as against the defendant Lohr. The notes in controversy were signed by George W. Carrier and B.A. Basque, and it was alleged that to secure the payment t...
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THE COURT. A motion by the League of the Cross of the Archdiocese of San Francisco, Incorporated; Frank J. Grimley, Luke Carroll, James E. Power, William H. McCarthy and R.W. Gillogley, defendants and respondents in the above-entitled action, for an order dismissing plaintiffs' appeal on the ground that the latter have accepted the benefits *Page 346 of the judgment appealed from. The defendant f...
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Plaintiff is administratrix of the estate of Mary Henman, deceased. Deceased, an elderly spinster whose eyesight and hearing were defective, was the owner of the land which is the subject of this litigation. Having but little experience in business affairs, she relied in such matters upon the advice of one Crandall. She lived on the northwest portion of this property and the remainder was occupied...
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The defendants were jointly tried on an indictment charging robbery. A verdict of guilty was returned against each defendant, and from the judgments *Page 251 on the verdicts, and from the orders denying their motions for new trial, both defendants have appealed on the same typewritten record. On April 17, 1929, the College Avenue Branch of the Oakland Bank was robbed of the sum of $10,133 by two...
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This is an appeal from a judgment in favor of respondent for damages for the death of his minor son. The complaint is based upon the negligence of the appellants under the attractive nuisance doctrine. Appellants were copartners engaged in the business of roofing houses by the use of water-proof paper and melted tar. On June 22, 1927, they were engaged in the work of roofing a dwelling-house being...
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THE COURT. This action was brought to recover a balance of sums advanced by plaintiffs, who were the brothers of defendant's wife, to provide her with the necessaries of life. The defendant admitted his failure to provide, and the court found that the amounts claimed were advanced and actually used for that purpose. Defendant has appealed from the judgment which was entered against him. [1] He con...
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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 213 [EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 214 [EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE T...
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In this action plaintiffs seek to have a certain note and trust deed declared void and canceled, and to have the title to certain real property in Imperial County quieted. The complaint alleges that Edward Dool, one of the parties who executed a certain note and trust deed, was, at the time of the signing the same, entirely without understanding, within the meaning of section 38 of the Civil Code....
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This is an appeal from a judgment denying appellant a peremptory writ of mandate to compel respondent Woodruff, as building inspector of the city of San Jose, to issue a permit for the construction of a combined residence and store building. After appellant and his architect had taken up orally with respondent Woodruff the matter of the issuance of such permit, but before any written application h...
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The plaintiff commenced an action to recover damages for the death of Daniel Moreno, his minor son, who was but ten years old at the time of his injury and death. The defendant filed an answer in which he denied many of the material allegations of the complaint and in which he alleged the contributory negligence of the plaintiff and of the decedent. A trial of all of those issues was had before th...
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THE COURT. This is an appeal from a judgment in favor of plaintiff and against defendant Pickwick Stages System, a corporation, entered in an action to recover damages for personal injuries. Shell Oil Company, a corporation, was also joined as a defendant, but as to it a judgment of nonsuit was entered and the corporation first named is the only appellant. The plaintiff on November 5, 1928, was a ...
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The defendant Cochran in his official capacity as constable sold certain hay under an attachment, and the plaintiff brought this action against him, claiming to be the owner of said hay and seeking damages for its wrongful conversion. Cochran filed an answer, denying all of the allegations of the complaint. Thereafter he served and filed the following notice: "Notice of Action Brought and Permi...
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The plaintiff commenced an action against the defendants to recover a judgment for the price of a harvester sold and delivered. The defendants answered the complaint and they also filed a cross-complaint. The cross-complaint was answered and the issues so made were tried before the court sitting without a jury. The court made findings in favor of the defendants and from a judgment entered thereon ...
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The information herein charges the defendant with the crime of burglary and with three prior convictions of felonies. He entered a plea of not guilty but admitted the alleged prior convictions. The jury found him guilty of burglary of the second degree and the trial court denied his motion for a new trial. He has appealed from the judgment of conviction and the order denying a new trial. Witnes...
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The plaintiff commenced an action to obtain a judgment for damages caused by being thrown to the street when he was attempting to board one of the street-cars being operated by the agents of the defendant. The defendant answered and a trial was had in the lower court by the court sitting with a jury. The jury returned a yerdict in favor of the plaintiff and from a judgment entered thereon the def...
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This in an appeal from the order denying a motion of defendant to set aside a default and relieve him from a judgment by default. The action was brought to recover a money judgment for goods sold and delivered. July 30, 1928, the summons was served on appellant and two days thereafter was served on his co-defendant Kobashigawa. The summons was served in the county in *566 which the action was...
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The defendant was convicted of murder of the second degree. He was a professional pugilist. He pleaded guilty to a charge of former conviction of burglary. About noon on the thirty-first day of January, 1930, in company with his brother Lester, he entered the office of Erickson, who was a dealer in used automobiles. This office was a small wooden shack situated in the yard at Broderick, where the ...
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The plaintiff sued the defendant to recover a judgment for money. The jury returned a verdict in favor of the plaintiff and from a judgment entered thereon the defendant has appealed. On March 31, 1928, the defendant leased to the plaintiff a gasoline filling station at Post and Broderick Streets, San Francisco. The lease extended over a term of years. The plaintiff made a deposit of $600 which, a...
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[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 306 The plaintiffs W.L. Crooks and Fannie Crooks, husband and wife, brought this action against the defendant Henry White for damages for causing the death of their adult son, Walter Crooks. The case was tried before a jury, which returned a verdict for defen...
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While two separate appeals have been filed in this action, one from an interlocutory judgment and the other from a final judgment, both appeals depend upon the same state of facts, and by stipulation both appeals have been consolidated. On March 26, 1926, the defendants were indebted to the Hammond Lumber Company, one of the plaintiffs herein. At that time, the defendants were exchanging certain r...
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THE COURT. The appellant, Matthew Gallagher, was charged with having had morphine in his possession in violation of the state law regulating the sale and use of poisons, and upon trial before a jury was convicted. The accusation also charged and appellant admitted two prior convictions of felony, for having in a similar manner violated the same state law. Therefore, the maximum penalty under the p...
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In this eminent domain proceeding the defendant Greines alone appeals, claiming herein that the amount of the award in his favor is less than that to which he is entitled. The land, designated parcel 2 of the complaint, was formerly the property of Charles Schatte and Rosa Schatte, his wife. On October 8, 1909, said owners, conveyed this land to the defendant Title Guarantee and Trust Company in ...
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This is an application for a writ of habeas corpus. Petitioner was accused by complaint filed in the Justice's Court of El Monte Township, Los Angeles County, of having sold intoxicating liquor in the city of Beverly Hills, situated in the same county, during the month of February, 1930, in violation of the Wright Act (Stats. 1921, p. 79). Over the objection of petitioner he was tried for the offe...
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On the night of July 4, 1929, a boy named Sierra received certain pistol shot wounds, which resulted in his death the next day. According to some of the evidence these wounds were caused by shots fired by the defendant, who was a police officer of the city of Los Angeles. According to some other evidence it may be that in a quarrel the boy had been shot by one of his companions, before the office...
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Plaintiff sued for personal injuries arising out of a motor vehicle collision. The cause was tried with a jury which returned a two thousand dollar verdict for plaintiff. Defendant appeals on typewritten transcripts. Early in the morning of August 8, 1926, plaintiff was driving a Ford car down the "Big Curve" on the Skyline Road leading to Half Moon Bay. At the same time defendant was driving a Hu...
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This appeal is from an order by which the probate of a certain will of Emma P. Coffin, deceased, was denied probate, and her intestacy decreed. The following are the “grounds of decision” herein: (1) The findings of fact upon which -the order in question was based are supported by sufficient evidence. (2) It is asserted by respondent herein, and not denied by appellants, that at the time th...
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This is an application for a writ of review. Heretofore Mary E. Lackey filed an application to be appointed guardian of the person and estate of Giorgio Ricci, a minor. After certain proceedings had, the court granted the application, and thereafter the minor's mother and father commenced this proceeding to obtain a judgment annulling the order appointing Mary E. Lackey as such guardian. In their ...
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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 388 The plaintiff applied to the defendant board for a permit to transport refuse through the streets of San Francisco. The application was denied. Thereupon he commenced a proceeding in the superior court to obtain a writ of mandamus directing the defendant ...
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MEMORANDUM CASE. [1] Except a different minor is involved, the facts and the law of this application are the same as in Peter Ricci et al. v. Superior Court et al., Civil No. 7482, ante, p. 395 [290 P. 517], this day filed. For the reasons there stated the demurrer is sustained and the temporary writ is discharged. Nourse, P.J., and Spence, J., concurred. A petition for a r...
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This is an appeal by Mary Agnes Miller, the surviving widow of Hugh Miller, deceased, from the decree settling the final account and distributing the estate of the decedent. The decedent left a will which creates a trust as to all of his property. It names two of the decedent's brothers, Robert B. and George R., and a third person, Irvine P. Aten, as trustees of the trust, and it requests that tho...
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This is an action on a contract of insurance. On or about June 10, 1927, at Brawley, California, the defendant insurance company, through its agent, issued a policy of fire insurance to F.N. Estrada, covering *Page 506 certain pool-hall fixtures and equipment. The property covered was destroyed by fire early in the morning of July 5, 1927. There is evidence that on that day Estrada notified the a...
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This action was brought for the purpose of obtaining possession of a certain mining claim in Imperial County. The plaintiff, in his complaint, alleges that he is the owner and entitled to the possession, under and by virtue of the mining laws of the United States, of a certain quartz or lode mining claim known and designated as the Jabon Lode Mining Claim, according to a location *Page 459 notice...
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Plaintiff, a Missouri corporation, brought this action to enjoin defendants, who are rivals in business, from using, in the manufacture and sale of *Page 534 disinfectants, antiseptic and sanitary compounds, certain formulae, names, labels and other properties which plaintiff claimed to own and to have acquired for its own private and confidential use at great cost of labor and research during it...
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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 651 THE COURT. An action by the administratrix of the estate of Egbert William Brooks, deceased, against the City of Monterey to recover damages for the death of the deceased alleged to have been caused by the defective condition of a street within the munici...
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Plaintiff sued as the administrator of the estate of May Howe to recover money deposited with defendant by deceased. Plaintiff had judgment for *Page 431 $3,949.27, and the defendant appeals on a bill of exceptions. The complaint contained the allegation that at the time of her death on June 22, 1923, May Howe was a depositor with the defendant, having a balance of $3,340.52 in the savings accoun...
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Plaintiff and respondent, Frank L. Weigle, brought this action against defendant and appellant, Paul Salmino, to quiet title to seven unpatented mining claims situate in Yreka mining district, Shoshone county, to wit: the Mountain View, Enterprise, Silver Star, Crescent, Crown Jewel, Tungsten and Pershing, to the possession of which as alleged owner he claimed himself entitled. He also prayed that...
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In an action involving an agreement for the transfer of real property the trial court decreed that appellants should execute and deliver to respondents deeds to the property in question, and in default of their so doing the clerk of the court should make the necessary deed. Appellants appealed from said decree August 2, 1929. March 18, 1930, while the appeal was pending but before it had been hear...
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Plaintiff is the successor in interest of the original lessors of a building located at the southeast corner of First and Main streets in the city of Portland. The lease which was executed on January 22, 1922, let the premises to the appellant, Portland Amusement company, *Page 416 a corporation, as lessee for the period of 10 years, beginning June 21, 1924, at a monthly rental of $525. It was co...
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F.A. Baylies, one of the defendants in this suit and generally herein referred to as "defendant" owned land and personal property in Uinta County, in this state. He wanted to sell or trade it, and employed the Hatten Realty Company, the plaintiff herein, and generally designated herein as such, as his agent to further such purpose. Just the extent of the agency is not clear. Hatten, president of t...
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This is an original proceeding in habeas corpus in which petitioner alleges that she is incarcerated in the city jail of Tulsa charged with the violation of “Ordinance number-of the city of Tulsa.” It is then alleged that the ordinance is void for numerous reasons. The application was filed on June 6, and a hearing had. The petition for writ does not have attached to it a copy of the ordinance, a...
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The plaintiff in error, hereinafter called defendant, was convicted in the county court of Muskogee county, on a charge of having unlawful possession of intoxicating liquor, to wit, 28 gallons of corn whisky, and his punishment fixed at a fine of $100 and confinement in the county jail for a period of 60 days. The officer, before searching defendant's premises, obtained a search warrant describing...
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Prohibition. On September 17, 1929, an attachment suit was commenced in the Justice's Court of Corcoran Township, Kings County. Judgment was entered *Page 29 for the plaintiff for the amount prayed for and certain costs. Execution was issued. On November 27, 1929, the plaintiff filed a notice of motion to quash the execution and to modify the judgment so as to include therein certain costs incide...
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THE COURT. On December 4, 1929, this court filed its opinion and judgment in the above-entitled cause ordering a peremptory writ of mandate to issue directing the respondent Riggins to turn over and deliver to his successor in the office of secretary of the Consumers Salt Company the office and paraphernalia, together with the corporate books, papers, files and seal of the company. (208 Cal. 537 *...
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This is an appeal by the plaintiff from a judgment in its favor in the sum of $527.96. The plaintiff filed a complaint to recover the balance due on a lease and conditional sale contract entered into by it with the defendant Frank D. Tuttle, covering a stock of Ford automobile parts. The total amount contracted to be paid by said defendant was $15,594.70 in ten monthly installments of $1559.47 eac...
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THE COURT. Myrtle Fountain, as administratrix of the estate of her deceased mother, brought this action against her father, the defendant and respondent herein, to quiet title to certain real property. Judgment was entered for the defendant, and plaintiff appeals. It is conceded that the record title to the land stands in the name of the defendant, but appellant claims that the land was the separa...
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The judgment is affirmed. This action was brought by plaintiffs to quiet title to and enjoin defendants from trespassing upon the northwest 1/4 *Page 97 of northwest 1/4 of the southwest 1/4 and west 1/2 of northeast 1/4 of northwest 1/4 of southwest 1/4 of section 32, township 3 north, range 14 east, M.D.M., a fifteen-acre tract of land. The land itself possessed only a nominal value, the real p...
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The defendant was convicted of the offense of driving an automobile while he was intoxicated. The jury rendered the following verdict: "We the jury in the above entitled cause, find the defendant, P. Lopez, guilty of the crime as charged and recommend that he be sentenced to the County Jail, and further recommend the sentence be suspended." The defendant was thereupon sentenced to serve one year i...
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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 78 THE COURT. This action in claim and delivery was brought by plaintiff bank to recover possession of certain registered dairy stock, described by name in the complaint, or its value in case possession cannot be had. After trial by the court, a jury having b...
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Apparently it is conceded that on August 10, 1905, the Howard Estate Company, a corporation, filed a supplemental map to the official map of the City of Burlingame, showing a division of a tract of land owned by it into lots and blocks and at the same time showing without name or number a strip running irregularly across said tract some twenty feet in width, embracing therein the bed of Burlingame...
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The plaintiff, as a realtor, sued to recover commissions alleged to be due under a listing agreement. The court made findings against the plaintiff and from a judgment entered thereon he has appealed. The plaintiff pleaded in haec verba a written contract which contained a covenant that “in case a sale is made within ninety (90) days after the termination of this agreement at the above mentio...
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This is an application for a writ of habeas corpus. Heretofore the petitioner filed an application in which he alleged that he was being illegally held in jail and restrained of his liberty. Thereafter this court directed that a writ issue and made said writ returnable *Page 690 on the fourteenth day of July, 1930. Later the sheriff of Alameda County duly made his return in which he set forth tha...
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This is an action to recover a balance, claimed by plaintiff to be due from defendant, of proceeds of oranges sold by defendant for plaintiff, and not accounted for. Judgment was given in favor of plaintiff, from which defendant appeals upon the sole ground that it is not sustained by the evidence, *445 Plaintiff and defendant, in August, 1921, entered into a contract by which plaintiff agree...
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Each of the defendants appeals from each of two several judgments following conviction of the crimes of burglary and grand theft, as well as from an order denying a motion for a new trial. The "grounds of decision" herein are as follows: [1] (1) The evidence adduced on the trial of the action was sufficient to support the several verdicts of the jury and the judgments rendered thereon as to each o...
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An indictment charging seven persons with conspiracy to commit certain alleged offenses was attacked *Page 339 as insufficient by objections to the introduction of evidence, which were overruled. After trial resulting in a disagreement of the jury the case was reset for trial at a subsequent date, at which time, and before the introduction of any evidence, the defendants moved that the indictment...
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This is an appeal from a judgment for personal injuries which were sustained by the respondent in a railroad crossing collision. The defendant's railroad track extends southerly from Redding in a straight and substantially level course for a distance of at least five miles. The railroad right of way is 100 feet in width and is fenced on either side. At the place where the accident occurred the sta...
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The defendant was convicted of grand theft. The offense was accomplished by procuring one Joe Chettero, by means of fraud, to sign a note for $3,379.80 with the defendant as co-maker thereof. The prosecuting witness, Chettero, was unable to read or write beyond the ability to sign his own name. The defendant falsely represented that he wanted to secure an indorsement of his reputation for the p...
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Two defendants, Stene and Dahl, were tried jointly on an information charging robbery. The jury returned verdicts finding Stene guilty of attempt to commit robbery of the second degree and Dahl guilty of robbery of the second degree. Dahl alone has appealed from the judgment and from the order denying him a new trial. On October 17, 1929, appellant and Mrs. Carson called upon Mrs. Stewart at her a...
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Pursuant to notice, respondents have presented their motion for an order dismissing the appeal herein, or for an order affirming the judgment. The motion is grounded upon the alleged failure of appellant to comply with the provisions of section 953c of the Code of Civil Procedure and failure to comply with rule VIII of the Rules of the Supreme Court, relating to the duty of an appellant to print i...
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In this case appellant was convicted of murder in the second degree, upon an information charging him with murder. He was tried by the court, having waived trial by jury. From the judgment of the court and from the order refusing a new trial he appeals. The killing, which was admitted, is claimed to have been done in self-defense. The facts of the case are that appellant shot and killed Manuel Her...
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This appeal is prosecuted from a judgment in favor of respondent in the sum of $609.04. The action is for money due on a mutual open and current account. Prior to July, 1923, appellant had been employed by respondent as a salesman in certain territory in southern California. He was employed upon a commission varying from three and one-half per cent to one per cent of the gross sales. In July, 1923...
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The defendant was charged with two acts of rape of a woman of the age of twenty-two years, alleged to be incapable, through unsoundness of mind, of giving legal consent to sexual intercourse. He was convicted on both counts and his motion for a new trial was denied. This is an appeal from the judgment of conviction and the order denying a new trial. There is no contention that the defendant did no...
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Defendant prosecutes this appeal from a conviction upon the charge of violating section 288a of the Penal Code. The alleged victim was a boy about nine years of age. Appellant concedes if the testimony of this boy and that of his companion, another lad of about the same age, and who claimed to have been an eye-witness to the commission of the alleged crime, may be accepted as true, that the judgm...
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Separate appeals were taken from judgments foreclosing mechanics' liens in these actions, which were consolidated for trial. The appellant is the owner of eight lots in Los Angeles County which are described in the complaint. November 30, 1922, he executed a ten-year lease of the property to Green Mill Catering Company, a corporation. The lease recited that it was the intention of the lessee to pr...
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The case comes up on the judgment-roll. The question presented is whether, under the circumstances disclosed, the court should enforce the provisions of a stipulation for the compromise of this action. Plaintiff brought action against Belle McCain and the executor of the last will and testament of her husband to recover $21,000. Belle McCain, hereinafter referred to as defendant, answered, denying...
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This is an original application for a writ of prohibition to be directed against the Superior Court of Los Angeles County and certain judges thereof, and also to the county clerk and sheriff of the aforementioned county, commanding and directing the court and its officers to desist and refrain from further proceedings in a certain cause, Funfar v. Funfar, No. D63849, which was filed therein; also,...
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Appeal from a judgment recovered upon a policy of indemnity insurance issued by appellant to one Marion P. Daniels, a jitney driver operating in San Francisco. Respondent recovered judgment for $6,000 and $67 costs on November 12, 1925, against Daniels, for personal injuries caused by the operation of his jitney bus. After an appeal this judgment was finally affirmed on May 14, 1928. Execution was...
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The indictment contains five counts, four charging separate forgeries and one charging the issuance and passing of a bank check without sufficient funds or credit for the payment thereof. The indictment also charged a prior conviction of the crime of issuing a check without sufficient funds for the payment thereof. The defendant was convicted of all the crimes charged and the jury found that he ha...
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The plaintiffs, as contractors, built a house for the defendant for a specified sum as set forth in a written agreement. This action was filed to recover $1496.47 for work and service performed and materials furnished, in supplying and constructing certain extras in connection with the erection of such residence. The defendant answered denying all of the allegations in the plaintiffs’ complaint a...
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This is an action by a real estate broker for a commission. On September 19, 1927, the defendant signed a written proposition to exchange a piece of real property owned by him in San Diego upon certain stated terms, for another piece of real property in San Diego owned by W. B. Tyrrell. This instrument contained a provision authorizing the plaintiff herein to act as agent in negotiating said exch...
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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 600 The plaintiff, Albert E. Hill, as administrator with the will annexed of the estate of Stivi Svicarevich, deceased, brought this action to recover from defendant John Badeljy the sum of $7,000, alleging that said money belonged to the estate of the above-...
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This action was submitted to the court upon stipulated facts which may be briefly summarized as follows: Liberardo A. Vasquez was an employee of the Southern Sierras Power Company at El Centro, California. As such employee and in connection with certain group insurance, he held two certificates of insurance on his life, one for one thousand dollars and the other for five hundred dollars. These cer...
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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 350 This is an appeal by the defendant Clinton Construction Company of California, a corporation, from a judgment entered against it upon a verdict of a jury in the sum of $15,000. Sol Slyter brought this action through his guardian, charging that he was seve...
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Actions had, prior to October 30, 1924, been brought against the County of Kern by sundry oil corporations in various courts of the state of California and in the United States District Court for the Southern District of California, to recover taxes paid, aggregating approximately two hundred fifty thousand dollars ($250,000), on improvements placed by such corporation on lands in Kern County leas...
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The petitioner seeks to be discharged from custody following his arrest on a complaint charging a violation of that part of section 628f of the Penal Code which prohibits the shipment of abalone shells out of the state. A similar application was heard before the Honorable C.J. Goodell, sitting in the Superior Court in the City and County of San Francisco. In remanding the petitioner to custody the...
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Plaintiff brought action against the two defendants to recover damages for injuries she received from falling downstairs. From a judgment in her favor rendered by the court sitting without a jury, defendants appeal. The principal questions involved are the sufficiency of the evidence to sustain the findings, the applicability of the doctrine of res ipsa loquitur and whether the plaintiff was herse...
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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 374 This is an original application for a writ of prohibition to be directed to the Superior Court of Los Angeles County and the Honorable Clair S. Tappaan, judge thereof, commanding and directing the court and the judge mentioned to desist and refrain from h...
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This is an action to recover possession of and quiet the title to certain Liberty bonds aggregating in value the sum of $94,000.00. In the court below judgment went for the plaintiff and the defendant appeals. The plaintiff is the surviving husband of Ethel M. Monnette and the defendant Trust Company is the executor of the last will and testament of the said Ethel Monnette. At the opening of the 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 448 In this action, plaintiff sought to establish a certain amount as due to him for materials furnished and labor done in improving a certain eighty acres of land belonging to defendants Hazeltine, and sought to establish *Page 449 and foreclose a lien on 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 255 By an information filed February 7, 1930, by the district attorney of Los Angeles County, appellant and one Thomas Kucera were charged with the crime of burglary, alleged to have been committed on or about August 13, 1929. The prosecuting attorney dismiss...
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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 469 This is an action for damages arising out of an automobile accident. As a result of the accident Mildred E. Sawdey lost her life. She was the wife of lvan G. Sawdey and the mother of Ivan G. Sawdey, Jr., the plaintiffs. Each of the defendants appear by se...
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The plaintiff, Masters, as assignee of Electro-Kold Sales Corporation, commenced this action in the superior court for King county, seeking recovery of an unpaid portion of the contract price of a refrigerator system installed by that corporation in a large apartment house in Seattle owned by the defendant, Hultin. A trial upon the merits in that court, sitting without a jury, resulted in a judgm...
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The plaintiff, Wilson, seeks recovery of damages suffered by him in the death of his minor son, claimed as the result of the negligent driving of an automobile by the defendant Melvin Maxwell, as an employee and servant of the defendant printing company. A trial upon the merits in the superior court for King county, sitting with a jury, resulted in verdict and judgment awarding to plaintiff recove...
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This is an action in replevin, tried to the court sitting without a jury, which resulted in a judgment awarding to the plaintiff a certain automobile, which was the subject of the action, impressed with a lien in the defendant’s favor for $199.54. The defendant has appealed. It appears that respondent, being in possession of an automobile which he held on a conditional sales contract exchanged ...
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We have here an action based upon two life insurance policies seeking recovery on behalf of the beneficiary because of the presumption of the death of the insured, arising from seven years' unexplained absence. The case was tried to a jury, resulting in a verdict in favor of the defendant. A motion for a new trial was interposed, and the trial court, concluding that the jury had been erroneously i...
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During the month of April, 1928, plaintiff, Olaf T. Hansen, being the owner of a Falcon-Knight landau sedan, which he had some time previously purchased from defendant Edward Wahl, an automobile dealer in the city of Everett, who will in this opinion be referred to as though he were the sole defendant, delivered his car to defendant, the parties signing the following agreement: * ‘ This agreeme...
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HOLCOMB, FULLERTON, and MILLARD, JJ., dissent. Plaintiff Aberdeen Savings Loan Association and sixty-two other savings and loan associations, doing business in this state and organized under the provisions of chapter 1, title XXI, Rem. Comp. Stat., § 3716 et seq., and acts amendatory thereto, brought this action against the members of the state *Page 353 tax commission, seeking to enjoin the enf...
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Plaintiff, the holder of a policy of accident insurance written by defendant, brought suit upon the policy, alleging that she had suffered bodily injury which entitled her to receive from defendant certain payments under the policy, of which she was the owner. In her complaint, plaintiff alleged the issuance *Page 291 by defendant of a policy of accident insurance in her favor under date June 21,...
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The appellant was charged by the prosecuting attorney of Jefferson county, the information containing two counts alleging violations of the state liquor law, tried to a jury and found guilty. This appeal follows, and but two errors are argued: First, that the court unduly restricted the cross-examination of the state's witnesses; second, that the court unduly limited counsel for the defense in his...
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The defendant, by information, was charged with unlawfully opening up, conducting and maintaining a place for the sale of intoxicating liquor. The trial resulted in a verdict of guilty, and from the judgment and sentence the defendant appeals. The place which the appellant was charged with opening up and conducting was at 415 Sixth avenue south, in the city of Seattle. Two Federal prohibition agen...
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The defendants were, by information, charged with unlawfully opening up, conducting and maintaining a place for the sale of intoxicating liquor. *Page 148 The trial resulted in a verdict of guilty. A separate judgment and sentence was entered as to each defendant, from which both appeal. The place which the appellants were charged with unlawfully opening up, conducting and maintaining for the unl...
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Respondent, as plaintiff, brought this action, alleging that she was the owner of certain personal property by virtue of a bill of sale executed and delivered to her and duly filed for record in November, 1926; that the defendant Clebanck, as plaintiff, had, *Page 369 in two certain actions, to neither of which plaintiff was a party, sought to establish and foreclose a landlord's lien against thi...
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This action was commenced to recover the purchase price of electrical power sold by the Puget Sound Power & Light Company to the Dexter Horton Estate, and delivered between December 25, 1925, and January 25, 1928. From a judgment allowing recovery as prayed for, this appeal is prosecuted. The facts as disclosed by the record show that, October 1,1923, respondent and appellant entered into ...
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This is an action to recover damages claimed to have been suffered by the plaintiffs resulting from the fraud and deceit of the defendants. The case was tried to the court with a jury, and resulted in verdict and judgment in favor of the defendants. The plaintiffs have appealed. The only error assigned is the denial of appellants’ motion for a new trial on the ground of the insufficiency of the...
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Prior to July, 1928, defendant Will Starkey Theaters Company, a corporation, was the owner of the "Rex Theater," a moving picture house operating in the city of Spokane, and during that month agreed to sell the same by contract of conditional sale to C.G. Bowman and Jack Hoeft. These purchasers falling behind in payments due under the contract, their vendor, the corporation above named, during the...
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Plaintiff J.D. Lloyd, defendant Charles H. Mowery and Amos Miller, residents of Yakima, were friends of long standing and had for some time made it their practice to devote a portion of each year to a hunting trip. November 19, 1928, the three friends started for Tule Lake, Oregon, to hunt wild geese, riding in an automobile owned and driven by defendant Mowery, the three jointly contributing to t...
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Plaintiff and respondent, Utah Mortgage Loan Corporation, duly organized and existing under the laws of the state of Utah, with its headquarters at Logan therein, and duly licensed to do business within this state with its statutory agent at Boise, Ada county, brought this suit to have declared unconstitutional and void chapter 252 of the 1929 Idaho Session Laws, and to secure a perpetual injuncti...
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This case is governed by the principles heretofore announced in the case of Utah Mortgage Loan Corp. v. Gillis,ante, p. 676, 290 P. 714. Judgment affirmed; costs to respondent. Givens, C.J., and Budge, Varian and McNaughton, JJ., concur. *Page 687 ...
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This case is governed by the principles heretofore announced in the case of Utah Mortgage Loan Corp. v. Gillis,ante, p. 676, 290 P. 714. Judgment affirmed; costs to respondent. Givens, C.J., and Budge, Varian and McNaughton, JJ., concur....
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This case is governed by the principles heretofore announced in the case of Utah Mortgage Loan Corp. v. Gillis,ante, p. 676, 290 P. 714. Judgment affirmed; costs to respondent. Givens, C.J., and Budge, Varian and McNaughton, JJ., concur....
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This action was brought by plaintiff to condemn a right of way for a state highway through defendants' farm. Defendants denied the necessity for taking this particular land and alleged that the highway which had been in use for over forty years is as convenient to the public as the proposed highway, and that its use would inflict much less injury upon the defendants. Defendants' farm lies just eas...
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On appeal from a conviction of grazing and pasturing sheep on a cattle range, contrary to C. S., sec. 8333, appellant assigns in substance five grounds for reversal: First, that the criminal complaint filed in the probate court, which initiated the prosecution, does not state a cause of action, because it does not sufficiently allege that the range had been and was at the time of the alleged offen...
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Here we have a motion to dismiss an appeal and for diminution of the record. The appeal is from an order in a proceeding instituted by a receiver after judgment. The proceeding is by the receiver appointed in the main action to require an assessment by the Payette-Boise Water Users' Association to secure funds with which he may discharge the final judgment. The order was granted. In appealing from...
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This is an action brought by plaintiff, respondent here, to recover for damages to his automobile resulting from a collision with the car of defendant. This occurred on the Meridian-Nampa Highway, three miles west of Boise, at or near an intersecting road which crosses it. The action is for alleged negligence. The defense is a denial of negligence on the part of appellant and a claim that responde...
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Defendant was convicted of murder in the first degree and sentenced to death. He appeals. Only two questions are presented on this appeal: First, it is contended that the defendant's motion for new trial should have been granted upon the alleged ground that the verdict is contrary to the evidence and the court's instructions *Page 465 with respect to the question of premeditation and intent. Seco...
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Appellant assigns first as error on this appeal the insufficiency of the evidence to support the verdict of the jury. There is in the record hundreds of pages of testimony in the form of circumstantial evidence introduced for the purpose of proving that Glenn A. Trousdale, the deceased codefendant, actually committed the alleged crime charged in the indictment, and practically all of the evidence ...
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OPINION OF THE COURT Appellants and another were charged with possessing a still and mash for the purpose of manufacturing intoxicating liquor. Their co-defendant, Gates, was discharged by direction of the court, and they, being convicted, have assigned two errors. [1] First, appellant Watts says that the trial court erred in refusing his motion for a severance. He says t...
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OPINION OF THE COURT Appellant was convicted of possessing a still for manufacturing intoxicating liquor. [1] His first ground of appeal seems to be that there is no testimony in the record which points to his guilt. We think there was sufficient evidence to go to the jury and, under our unbroken line of authorities on this question, we will not disturb the verdict. [2] A...
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OPINION OF THE COURT The plaintiff, Farmers' Cotton Finance Corporation, as mortgagee of two crops of cotton and other chattels, brought suit in replevin against the mortgagor, alleging that its indebtedness was past due and unpaid, and that the defendant had unlawfully disposed of certain cotton Appeal and Error 4CJ § 3243 p. 1195 n. 94. Pleading 49CJ § 883 p. 619 n. 95;...
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OPINION OF THE COURT The sole question in this case is whether or not the trial court properly applied the law to the facts as found by him. Appellant was the defendant below. He and his wife lived at his father’s house. The father had a garden, .to water which he put a culvert into an adjoining irrigation ditch. The plaintiff had an alfalfa held adjoining the garden. Defendant’s father was c...
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OPINION OF THE COURT The probate court of Colfax county allowed a number of claims. Minor heirs, by their guardian, attempted to appeal to the district court. It dismissed the appeal on procedural grounds and allowed the guardian an appeal to this court. On the docketing of the appeal citation issued to the executor. There never has been any citation to the claimants, who...
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OPINION OF THE COURT In this suit for conversion of an automobile plaintiff suffered a directed verdict against him, and appeals. Appeal and Error 3CJ § 1588 p. 1413 n. 56. *Page 168 Appellant contends that his evidence made a case of conversion. The ruling to the contrary is the only error assigned. This proposition of fact is not properly presented by the brief. Counse...
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OPINION OF THE COURT Upon his plea of guilty to practicing medicine without a license, appellant was sentenced to pay a fine of $100 and be confined in the county jail for 90 days, "sentence suspended until further order of the court." Some time later, the district attorney gave the court to be informed that the defendant was again practicing in violation of law, and a he...
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In Banc. Mr. Thomas Mannix, a duly licensed member of the bar of this state was tried by three circuit court judges, whom this court had previously appointed as referees, on a rule to show cause why he should not be removed from the roll of attorneys; *Page 331 the order was granted upon the petition of Mr. George W. Joseph. The charges against the defendant are extensive and we shall mention onl...
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In Banc. This is a suit to have an instrument purporting to be a deed declared to be a mortgage. In 1903 plaintiffs became owners in fee of 225 acres of land, the greater part of which was located within the corporate limits of the city of Burns in Harney county. On September 26, 1921, they executed an instrument in the form of a quitclaim deed conveying this property to the defendant, S.R. Bennet...
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This is an action for damages for personal injuries sustained by plaintiff while a passenger on a conveyance known as a gasoline speeder operated by the defendant corporation. The plaintiff alleges, among other things, that, on October 31, 1926, while he was being transported by defendant over its railroad by means of the speeder above referred to, the speeder ran off the track, throwing plaintiff...
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This is a suit for the specific performance of a contract alleged to have been made by James H. Palmer, now deceased, to execute a will which should convey to plaintiffs, his stepdaughters, all the property of which he should be the owner at the time of his death. It is difficult to condense the issues made by the pleadings, but, for the purposes of this opinion, they may be summarized as follows:...
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This is an action to recover damages for injuries suffered by respondent by being struck by one of the cars of appellant. The verdict was for the plaintiff, and defendant appeals. The appellant has assigned fifteen errors, but has argued only four of them. Under the rule established, the assignments of error not argued are deemed waived, and 1 will not be considered. The first two assignm...
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On November 9, 1929, plaintiff's application for compensation on account of the death of her husband was denied by the Industrial Commission. The commission found (1) that the death of applicant's husband was the result of a "suspected cerebral hemorrhage," (2) that the evidence does not disclose "that he died as the result of an accident," (3) that "the applicant has not sustained the burden of p...
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In this proceeding the plaintiff seeks a review and an annulment of an award of compensation granted to Adolph Ofgren by the Industrial Commission of Utah. The commission, after hearing the evidence, found the following facts: "1. The applicant, Adolph Ofgren, on February 7, 1929, was employed by the American Smelting Refining Company as a laborer; on said date said company had in its employ thre...
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Prosecution for bastardy. The jury found that the defendant was the father of the illegitimate child born alive to the prosecutrix on April 17, 1928. From the judgment thereon entered the defendant appeals. The defendant contends that this is a criminal case, and that it should therefore be tried and disposed of in accordance with the rules and practice applicable to criminal cases. The question i...
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This is an application for a writ of mandamus to require the Industrial Commission to hear a cause alleged to be pending before it and which it refuses to hear. In the petition for the writ it in substance is alleged that Carter, the petitioner, on May 13, 1928, and prior thereto in Wasatch county was in the employ of the Cedar Construction Company *Page 523 whose insurance liability under the in...
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THIS action by the Middlesex Safe Deposit Trust Company, a Massachusetts corporation, against Frankie Jacobs has for its object the foreclosure of a mortgage deed on real estate. The deed was executed by Frankie Jacobs (her former name was Wason), to secure the payment of her promissory note in the principal sum of $3,000 which she executed and gave to one J. A. Coram as payee and which was by th...
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OPINION OF THE COURT The appellee was indicted upon a charge of agreeing to receive a bribe. It is charged, among other things, that on the 16th day of May, 1929, he (the said Frank Quinn) being then and there a ministerial officer within the state of New Mexico, to-wit, equipment engineer for the state highway department of the state of New Mexico, did then and there, un...
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OPINION OF THE COURT Appellant was indicted and put to trial upon a charge of rape. The jury returned a verdict of guilty. Sentence was pronounced, from which appeal is taken. Facts sufficient for an understanding of the points presented will appear as we proceed. [1] Appellant's first contention is that the indictment is void because it was not returned by a lawful grand...
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OPINION OF THE COURT An information charged that appellants and one Herschell Guest made a felonious assault upon one John Miller and did rob, steal, and take from the person of said Miller certain money; "said Victor Kimbell, Turner Kimbell and Herschell Guest, being then and there armed with a dangerous weapon, to-wit: a pistol, then and there had and held in the hands ...
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OPINION OF THE COURT In an action for personal injuries against James Collier and the city of Santa Fe, appellee, plaintiff below, was Appeal and Error 3CJ § 621 p. 725 n. 84. Damages 17CJ § 340 p. 1042 n. 28; § 408 p. 1091 n. 85. Municipal Corporations 43CJ § 1820 p. 1042 n. 57; § 2044 p. 1279 n. 85; § 2052 p. 1293 n. 48. Pleading 49CJ § 475 p. 375 n. 68. Zimmerman v. Wi...
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OPINION OF THE COURT Ruth C. Zimmerman, appellee, agreed to sell to W.T. Wilkson, appellant, lots 1 and 2, in block 1, of the Cannon addition to the city of Albuquerque, and entered into a written contract, dated April 14, 1925, containing the terms of said sale, a copy of which is attached to the complaint. The contract contains a covenant that upon the completion of the...
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OPINION OF THE COURT Bailey sued Riddle on an account and attached a lot upon which Riddle had previously erected a filling station while he was in possession under an executory contract of purchase. John A. Freidenbloom intervened, claiming to be the owner of the land and improvements, and resisted the attachment. Pecos Valley Lumber Company also intervened, claiming a m...
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'OPINION OF THE COURT This is a suit to cancel certain instruments by which the board of trustees of the Tecolote land grant conveyed in fee certain portions of the common and unallotted lands and the mineral rights in all of them. The grounds alleged were fraud in the transaction rendering the deeds voidable, the unconstitutionality of the statutory authority for the conveyance, 1929 Comp. § 29 —...
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OPINION OF THE COURT This is an appeal from a judgment distributing the estate of the decedent among the widow and children. The trial judge held it to be community property, and distributed it as such. Appellants, children of a former marriage, contend that it is separate property. Counsel agree that this is the only question for decision. The trial court found that the ...
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What would otherwise be called the NE^ of the SE% of section 18, township 23 north, range 6 east, W. M., is a part of what is designated as lot 7 by the United States government survey, because it extends westward further than the limit of an ordinary forty-acre tract, to the shore of Meadow lake. The lot contains forty-nine acres. On October 7,1912, William Bakames, Tom Bakames and Nik Bakames...
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This is an appeal from a judgment of the superior court affirming an order of the department of labor and industries denying an application for a widow's pension under the workmen's compensation act. March 18, 1929, Donald L. Van Dusen, while in the employ of the Northwest Radio Service Company, was killed, and thereafter his widow, Florence Buss Van Dusen, filed a claim with the department of lab...
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This is an appeal by Mrs. Rousseau, individually and as administratrix of the estate of her deceased husband, from a judgment of the superior court for King county dismissing her action in that court, wherein she seeks recovery against the defendant, Rosche, upon a claimed obligation growing out of his partnership relation with her deceased husband. The theory upon which the judgment of dismissal ...
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In this action, the respondents Cline recovered in damages against the appellants Altose, as for a wrongful eviction from certain real property which the respondents held under lease from the appellants. The action was tried to a jury, in which a verdict was returned in the sum of $3,500. From a judgment entered on the verdict, the appeal is prosecuted. The principal contention of the appellants i...
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By written contract of July 17, 1928, the Lockit Cap Company agreed to supply the dies and pay to the Globe Manufacturing Company twenty-eight hundred dollars for the manufacture of five thousand so-called "lockit caps," intended for use on gasoline tanks of automobiles. The dies were to be of ordinary average quality and efficiency. The manufacturing company was to maintain the dies in working or...
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Mrs. Cecil May Barrett died as a result of injuries sustained in a collision between her automobile and the automobile of the defendant. The administrator of the estate of the deceased instituted this action to recover for that death. The cause was tried to a jury, which returned a verdict in favor of the plaintiff. From the judgment entered, motions for judgment notwithstanding the verdict and f...
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This action was brought by the respondent to cancel and enjoin the collection of taxes and assessments levied by appellant Water District No. 20. The appellant water district pleaded, as a defense to the action, not only a general denial, but also pleaded acts and conduct tending to show estoppel. From a judgment awarding the relief prayed for, this appeal follows. It is stipulated that the facts ...
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Appellant, by this action, seeks recovery upon a policy of burglary insurance issued under date of June 21, 1926, to Edward M. Reiner. The case was tried to the court sitting without a jury, resulting in a judgment dismissing the action. The plaintiff has appealed. [1] The judgment appealed from is based upon findings of fact made by the trial court, and respondent now moves to strike the statemen...
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The plaintiff, Curtis, as assignee of P.H. Campbell, commenced this action seeking recovery against the defendants, Mr. and Mrs. Hickenbottom, *Page 199 and their marital community, upon a promissory note which, upon its face, purports to have been executed by Mr. Hickenbottom alone. A trial in that court, sitting without a jury, resulted in a judgment denying to the plaintiff recovery against Mr...
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Appellant was tried, convicted and sentenced in the lower court of manslaughter. The charge of the information was that he, in King county, this state, on June 16, 1929, willfully, unlawfully and feloniously, with his hands and fists did strike, beat, knock down and otherwise assault one Yee Yen, a human being, thereby mortally wounding Yee Yen, of which mortal wounds Yee Yen then and there langui...
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On the trial below, appellant obtained a verdict for $6,250 for personal injuries. Upon a motion by respondents for a judgment n.o.v., the verdict was set aside and the action dismissed. *Page 67 Respondent City Electric and Fixture Company, on August 9, 1928, was the owner of a certain automobile truck which, at about one o'clock a.m. of that day, was being driven by respondent Brouilett, as its...
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This is an action for wrongful death arising out of a collision between the automobiles of Ludwig J. Hellenthal, deceased, and Mr. and Mrs. Edmonson, which occurred about noon on July 13, 1928, at the intersection of East Union street and Nineteenth avenue in Seattle. The deceased was going easterly on East Union street, an arterial highway under an ordinance of the city, and the car of Mr. and Mr...
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Plaintiff Louis Dulien is a nephew of defendant Frank Schwartz, who for many years has been engaged in the junk business in Seattle. Defendant Schwartz incorporated his business as Alaska Junk Company during the year 1918, retaining eighty per cent of the capital stock for himself, and having been at all times since the principal stockholder of the *Page 219 corporation (See Kahan v. Alaska Junk ...
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In the year 1928, the appellant, Winston Bros. Company, was engaged in the work of constructing a power plant on the Skagit river at a place called Diablo. A part of the work consisted of the removal of rock and other material from certain places on the banks and in the bed of the river. The material, preparatory to removal, was loosened by *Page 131 blasting. It was then gathered up by a steam s...
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Appellant brought this action against respondent for damages for alienation of the affections of the wife of appellant. After trial to the court without a jury, the court found that a preponderance of the evidence was not in appellant’s favor. It also found that appellant was not entitled to any damages. The conclusions and judgment were therefore in favor of respondent. On appeal, appellant as...
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Alleging misrepresentations as to the income from, and expenses of, certain apartment house property in Seattle, plaintiffs instituted this action for rescission of a contract for the purchase of that property. From the decree in favor of the plaintiffs – no findings of fact were made by the court – the defendants have appealed. [1] All of the assignments are addressed to the question whether the ...
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During the month of November, 1925, the owner of some of the bonds issued for the purpose of raising funds to pay for the construction of a sewer in local improvement district No. 159, of the city of *Page 81 Olympia, commenced an action to foreclose the lien of the assessment against certain property in the district, and to procure an order of sale against such property in order to enforce payme...
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Under the provisions of a written contract executed March 5, 1927, plaintiff was obligated to construct a purse seine fishing boat and to deliver the same to defendant Bakovic on or before May 1, 1927. Alleging construction pursuant to the terms of the contract, but that delivery of the boat was delayed two weeks by reason of changes in construction made at the request of the defendant, the plaint...
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This action was brought to recover damages for personal injuries. The cause came on for trial before the court and a jury. At the conclusion of all of the evidence, the defendant moved for a directed verdict, which motion was sustained. Judgment was entered dismissing the action, from which the plaintiff appeals. The facts are these: The respondents are husband and wife, own an automobile which wa...
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The plaintiff, Pontious, seeks recovery of attorney's fees incurred by him in defending a claim of damages prosecuted against him for personal injuries resulting from an automobile accident against which he was insured by the defendant insurance company. A trial in the superior court for Cowlitz county, sitting without a jury, resulted in findings and judgment awarding to the plaintiff recovery in...
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These actions were originally separately commenced in the superior court for King county, being consolidated for trial and final disposition because, as developed by the pleadings therein, they presented, in substance, the same controversy— that is, in the first action, as to whether or not Wheat-man became entitled to his claim of damages or commission as against Hoe & Co.; and in t...
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By decree entered January 6, 1920, plaintiff Emma Perkins was granted a divorce from defendant Joseph Perkins and awarded the custody and control of the three minor children of the parties, and the defendant was ordered to pay to the plaintiff seventy-five dollars monthly as permanent alimony. No appeal was taken from that decree. Defendant, by his petition filed July 1, 1929, seeks modification o...
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Appellant, as plaintiff, brought this action to restrain the city of Edmonds and its officers from carrying out a certain contract set forth in the complaint and from making any expenditure of public funds thereunder. A demurrer to the plaintiff's *Page 317 amended complaint was interposed and sustained. The plaintiff elected to stand on his complaint, and a judgment of dismissal followed, from w...
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The appellant corporation was, on and prior to December, 1927, operating a number of stores dealing in food products, all of which were furnished from a central store. Appellant Hansen was the president of the company, and with the exception of five hundred dollars, furnished the capital stock with which it began business. The general outline of the operations of these stores and the parties conne...
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This is an action by a wife for divorce from her husband upon the grounds of cruelty, non-support and desertion. While of the opinion that "the *Page 243 plaintiff had for many years been subjected by the defendant to cruel treatment, such as would, beyond peradventure of a doubt, entitle her to a divorce from him upon that ground," the trial court found that the plaintiff had not been a resident...
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This action arose out of a collision of automobiles August 15, 1927, at the intersection of Second and Gates streets in the city of Mt. Vernon; Gates street being thirty-seven feet, and Second street forty feet, between curbs. The action was brought by Dr. A. L. McClanahan against Henry J. Fisher. The verdict and judgment were for the plaintiff. The defendant has appealed. Dr. McClana-han died af...
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Mrs. Ida B. Dennison, the owner of lot 6, block 2, of "Map of Fern Hill, W.T.," now a portion of Tacoma, Washington, on July 12, 1926, entered into a written contract with Mr. P.E. Farr, a contractor, by which he agreed to move a dwelling house to the rear of the lot and remodel the house, also to construct a new building on the front of the lot in consideration of $20,000, of which amount $6,500 ...
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HOLCOMB and PARKER, JJ., dissent. Relator seeks a writ of prohibition in this court, and the return not being contradicted in any way, the facts are undisputed. Joseph R. Swanton, a resident of Thurston county, died testate May 10, 1929. Thereafter and on May 16, 1929, his will was admitted to probate and letters testamentary *Page 256 were thereupon issued to the executor by the superior court o...
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Appellant was, by a jury, found guilty of the crime of possession of intoxicating liquor with intent to sell. A motion for a new trial was interposed, and thereafter, according to the entries in the journal of the trial court, the following occurred: "Monday, December 2, 1929. Hon. H.G. Sutton, Judge "8964 – State of Washington vs. "George T. Crockett "Hearing on motion for new trial and sentencin...
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This action was brought by respondents to recover damages for injuries sustained by the wife at a grade crossing within the corporate limits of Granite Falls in Snohomish county. The collision occurred, according to the testimony of respondents, on January 5, 1927, at about the hour of five o'clock p.m. It was cloudy at the time, but not raining. Appellant *Page 390 operates a railroad through Gr...
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This is an appeal from a judgment of the superior court sustaining the action of the department of labor and industries in rejecting a claim. After the claim was presented to the department, it was rejected because there was no proof of an accident *Page 375 in the course of employment. After the rejection, the claimant appealed to the joint board. A hearing was held by that board, and the claima...
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The appellant, Colwell, was convicted in a justice court of Pend Oreille county of the *Page 150 crime of unlawful sale of intoxicating liquor, and appealed from the judgment of conviction to the superior court of the county named. After the record in the cause had been transmitted to the superior court, the state applied to the court for leave to file "a new and amended complaint and information...
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This is an action to set aside a general tax foreclosure, as it affects certain lands, and the deeds subsequently executed and delivered, and to quiet title in the plaintiffs. The plaintiffs obtained judgment below as prayed for, and the defendants have appealed. It appears that, on August 11, 1915, Andrew J. Kramer and his wife, by deed of that date, became vested with title to lots 1, 2 and 3, a...
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[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 247 Defendants, George Boss and George Davis, were jointly tried and convicted of murder of the first degree in the Superior Court of the County of Sacramento. The jury was fully instructed as to its right to relieve either of said appellants of the death pen...
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THE COURT. Petition for writ of mandate, the effect of which will be to estop the respondent Henry P. Dalton from being a candidate for nomination for the office of county assessor of the county of Alameda at the approaching primary election. The respondent county clerk answers, and the respondent Dalton demurs and answers separately. Following his conviction on a charge of asking and receiving a ...
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THE COURT. Alleging that he has fully complied with all the preliminary requirements of the "Mineral Leasing Act" (Stats. 1921, p. 404), petitioner has applied for a writ of mandate to compel the respondent to issue a permit to him to prospect for oil and gas upon certain designated tide lands located within the Elwood oil-field. Upon issuance of the alternative writ the respondent interposed a ge...
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MEMORANDUM CASES. THE COURT. The questions presented in this case are identical with those presented in Kelley v. Kingsbury, (L.A. No. 12146), ante, p. 37 [290 P. 885], this day decided. [1] Upon the authority of that case the alternative writ is discharged, the prayer for a peremptory writ is denied, and the proceeding is dismissed. Langdon, J., deeming himself disqualifie...
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Appellant is, and was, at all times material to this appeal, an attorney at law duly licensed to practice in all the courts of the state of California. John W. Mitchell, deceased, was a former client of appellant. Mitchell died in the city of San Diego, state of California, on July 2, 1925. His will was admitted to probate on the twenty-fourth day of July, 1925, and Adina Mitchell, his widow, appo...
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Defendant appeals from a judgment of conviction of the crime of burglary, and from an order denying his motion for a new trial. The following are the “grounds of decision” herein: (1) The trial court committed no error in admitting in evidence the extrajudicial statement made to defendant to the effect that he wished to be permitted to plead guilty to a charge of “receiving stolen property an...
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Appellants were found guilty by a jury of an attempted burglary, and after motions for probation and new trial were heard and denied were sentenced to imprisonment in the state prison for the period prescribed by law. Thereupon they took this appeal from the judgment of conviction and the order denying their motions for new trial. In presenting their appeal they make no claim that they were tried ...
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Plaintiff sued for injuries resulting from an automobile collision. The cause was tried before a jury and resulted in a verdict for plaintiff for seven thousand five hundred dollars. This the trial judge reduced to four thousand five hundred dollars. The defendant appeals on typewritten transcripts. At about 9 P.M. on the evening of January 23, 1929, plaintiff was operating his automobile north on...
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Upon conviction, defendant was sentenced to imprisonment for life. The sole ground of appeal, relied upon by the defendant, relates to the issue of fact raised by the plea of "not guilty by reason of insanity." She contends that the evidence, without conflict, proved that she was insane at the time when the offense was committed. Trial by jury was duly waived. At the conclusion of the trial on the...
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One of the beneficiaries of a trust in the above estate, entitled to one-tenth of the net income thereof, appeals from an order fixing the compensation of trustees for the period covered by their sixth "account current," *Page 673 basing the appeal upon the ground that the services so rendered were not reasonably worth the amount allowed by the court, and apparently contending that the fees allow...
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This action was brought to set aside a deed of conveyance from respondent, an aged man, to appellant Sarah E. Mays, his daughter, of certain premises in the city of San Diego, California, theretofore occupied by him as his home. Appellant Levi Mays is the husband of the said Sarah E. Mays. The complaint asserts that the deed was signed on April 1, 1927, by respondent; that respondent at the time w...
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The respondent as a stockholder of the appellant. corporation made demand upon its president and secretary for permission to inspect its books and records, which was denied. He thereupon petitioned the superior court for a writ of mandate requiring submission of the same to such inspection, which, after trial, was granted. This is an appeal by the defendant corporation and its' directors, who w...
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This is an appeal from an order denying a motion to vacate and set aside a judgment rendered against the plaintiffs, who were not present, in person or by counsel, at the time of the trial, based upon the surprise and excusable neglect of plaintiff. The appeal was not taken upon a bill of exceptions nor was a record perfected pursuant to section 953a et seq. of the Code of Civil Procedure. However...
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Appeal by plaintiff from judgment for defendant in an action brought to enforce contribution. The plaintiff and six defendants were the board of directors of the Farmers and Merchants Bank of Imperial, hereinafter referred to as Farmers Bank, which was engaged in the banking business in Imperial County. In 1921 the bank became in urgent need of cash and with that need in view the directors borrowe...
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Plaintiff, an attorney at law, brought this action against defendant to recover six hundred dollars for services rendered defendant on an appeal taken in a case entitled Johnson v.Hulse et al. Defendant answered, denying the employment of plaintiff, denying that the amount claimed was reasonable compensation and alleging that the action was barred by the provisions of subdivisions one and two of s...
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Plaintiff sued for injuries arising out of the operation of a Horton washing-machine and wringer. The cause was tried before a jury and, at the close of *23 plaintiff’s case, the trial judge granted a nonsuit. The plaintiff appeals on typewritten transcripts. Washer Wilson, Inc., was the only defendant served with process, hence the appeal relates to the interest of that party only. Washer Wi...
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THE COURT. [1] It is hereby ordered that the petition for a writ of review in the above-entitled cause be and the same is hereby denied, for the reason that the petitioner has his remedy by right of appeal. A petition for a rehearing of this cause was denied by the District Court of Appeal on August 8, 1929. *Page 756 ...
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THE COURT. [1] The motion of respondents to dismiss the appeal from the judgment is denied. (See Sterling Corporation v. Superior Court,207 Cal. 370 [278 P. 859]; also, Griffin v. Kent, 206 Cal. 263 [274 P. 56].)...
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Action for damages for false arrest and imprisonment. Trial by the court without a jury. Findings and judgment for defendant. Plaintiff appeals therefrom and from an order denying his motion for a new trial. The plaintiff, at the time of the arrest and imprisonment complained of, which occurred on the eleventh day of August, 1926, was seventy-nine years of age, somewhat infirm from a nervous affli...
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Defendant was found guilty by a jury of the crime of rape by force. [1] The first ground raised by appellant is that the story testified to by the prosecutrix is inherently improbable. Examination of the evidence shows that it is not inherently improbable. but that the evidence raised a question that was for the jury to determine – whether under all of the facts and circumstances testified to, the...
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The petitioner seeks the annulment of an order of the Industrial Accident Commission denying compensation for injuries sustained by him in an automobile accident. The Commission found that, at the time of the accident, the petitioner was employed as a salesman by Weber Beckett, whose insurance carrier was the State Compensation Insurance Fund, "all of whom were then subject to the provisions of t...
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Motion to affirm judgment on the ground that appellants have failed to comply with the requirements of section 953c of the Code of Civil Procedure, which provides that in filing briefs the parties must print such portions of the record as they desire to call to the attention of the court. [1] We are of the opinion that appellants' brief and supplement thereto sufficiently shows the error relied up...
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The plaintiff in error, hereinafter called the defendant, was tried for the crime of murder, and convicted of manslaughter in the first degree, and sentenced to be confined in the state penitentiary for a period of four years. Motion for new trial was filed, considered, overruled, exceptions saved, and the defendant has appealed to this court. The record is voluminous. The testimony on behalf of t...
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The plaintiff in error, hereinafter called the defendant, was convicted of the crime of selling whisky to a minor, and sentenced to pay a fine of $2,000 and be confined in the penitentiary for 5 years. Motion for new trial was filed, considered, and overruled, and the defendant reserved an exception and has appealed by petition in error and case-made to this court. James Moran testified on behalf ...
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Plaintiff in error, hereinafter called defendant, was convicted in the county court of Comanche county on a charge of transporting intoxicating liquor, and his punishment fixed at a fine of $500 and imprisonment in the county jail for 6 months. *317 The evidence of the state was that Conway Garner, wlio was a motorcycle patrolman in the city of Lawton, and had a deputy sheriff’s commission fo...
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Plaintiff in error, hereinafter called defendant, was convicted in the county court of Pottawatomie *Page 319 county on a charge of having unlawful possession of beer, and his punishment fixed at a fine of $300 and confinement in the county jail for a period of three months. The evidence of the state was that the officers procured a search warrant and searched the premises occupied by defendant a...
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The plaintiff in error, hereinafter called defendant, was convicted in the county court of Garfield county on a charge of having unlawful possession of one-half gallon of whisky, and his punishment fixed at a fine of f500 and confinement for six months in the county jail. *321 The state called E. J. Peel and Charles Allen as witnesses, who testified that they went to the home of defendant, an...
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Plaintiff in error, hereinafter called defendant, was convicted in the county court of Custer county on a charge of selling intoxicating liquor, and his punishment fixed at a fine of $150 and 60 days in the county jail. The evidence of the state was that the defendant sold a pint of whisky to one R.J. Smith on the 6th day of September, 1928. This evidence was corroborated by the witness D.E. Smith...
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Plaintiff in error, hereinafter called defendant, was convicted in the county court of Kay county on a charge of possession of whisky, and his punishment fixed at a fine of $500 and confinement for six months in the county jail. The evidence of the state was that they procured a search warrant, and upon search of defendant’s premises they found more than a quart of whisky in three pint bottles....
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This action was brought to recover on an insurance policy issued to the plaintiff by the defendant by the terms of which the defendant insured the plaintiff against a "wrongful conversion, embezzlement or secretion" of an automobile upon which the plaintiff held a chattel mortgage. The case was tried to the court, who on findings rendered a judgment in favor of the defendant. The plaintiff appeals...
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This proceeding was instituted for the revocation of letters testamentary issued to Bena Breiting by the court in pursuance of the terms of the will of Carrie Bogert. *Page 568 The statute, Comp. Laws Utah 1917, § 7627, so far as material here, is as follows: "The court * * * may, upon citation, revoke the letters * * * of any executor or administrator for neglect, mismanagement, waste, embezzlem...
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The plaintiff brought this suit against various defendants to quiet title to a tract of land situated in Ogden City, Weber *Page 578 County, Utah. In addition to the defendants named in the complaint, the plaintiff sought to quiet his title against "also all other persons unknown claiming any right, title, estate, lien or interest in the real property described herein adverse to plaintiff's owner...
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This action was brought by the plaintiffs to recover damages for alleged trespasses by the defendant's sheep and cattle on lands of the plaintiffs situate in Summit county and to restrain further trespasses. The plaintiffs set up five separate causes of action. Three of them relate to alleged trespasses for the years 1925, 1926, and 1927; two of them to trespasses and interferences by the defendan...
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This action was brought to quiet title and recover possession of a small strip of ground between premises owned by Pitchios and W. S. and Ina Jones, situate in the town of Bingham Canyon, Utah. In his complaint, Pitchios by metes and bounds described a somewhat rectangular parcel of land owned by him, the east end of which north and south described as being 22.5 feet, the west end 23.1 feet in wi...
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The defendant was convicted of the crime of being a persistent violator of title 54 (sections 3341-3381), Comp. Laws Utah 1917, and was sentenced to serve an indeterminate term in the state prison. He appeals. The charging part of the information which was filed against the defendant reads as follows: "The said Cleland Durfee, on or about the 20th day of February, A.D. 1929 at the County of Utah, ...
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This action was brought to recover damages for alleged personal injuries resulting from a collision in Ogden City between the defendant's street car and an automobile owned and operated by the plaintiff's husband and in which the plaintiff was an occupant, as alleged by her a guest or invitee. The case was tried to a jury resulting in a verdict and judgment in favor of the plaintiff, from which th...
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The plaintiff is the surviving widow of Burr D. Field, deceased. In this action she seeks to recover a judgment against the defendant for the sum of $1,000. She sues as sole beneficiary of an alleged contract of insurance claimed to have been entered into by Mr. Field and defendant. In *Page 47 her complaint plaintiff alleges three causes of action. The first cause of action is founded upon a wri...
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The respondent, Fisher, brought this action against the appellants, Berg, to recover on an assigned claim incurred for designing, constructing and installing a machine intended for use in splitting wooden blocks into suitable sizes for the manufacture of wood pulp. There was a trial by the court sitting with a jury, in which a verdict was returned in favor of the respondent for the sum of $2,800. ...
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This is an appeal from the judgment of the superior court dismissing an action and assessing an attorney's fee of $25 against the plaintiff in an action which had been appealed to the superior court from a like judgment entered by a justice of the peace. The National Association of Creditors, the appellant, brought an action upon an assigned claim against P.L. Pendleton in Ruston precinct, in Pier...
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The defendant was charged with unlawfully driving and operating a motor vehicle upon a public highway while under the influence of intoxicating liquor. The trial resulted in a verdict of guilty. Motion for new trial being made and overruled, the defendant appeals from the judgment and sentence. Two questions are presented: First, the sufficiency of the evidence to sustain the verdict; and, second,...
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This appeal is from an order denying a motion to set aside a judgment. No statement of facts accompanies the record. From the transcript, it appears that, in May, 1928, the respondent began an action against the appellant on a promissory note made and delivered by the appellant to the respondent's assignor. The complaint, with the usual summons, was served on the appellant on May 18, 1928. On June...
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Defendants Vukich, Sisevic and Grubisha, having been informed against as jointists, appeal from the judgment and sentence entered against them upon the verdict of a jury. They assign many errors, only a few of which need be noticed. [1] The information against appellants was filed June 7, 1929, the same day on which they were arrested. No further proceedings having been taken in the action, and mo...
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Respondent, plaintiff below, brought this action to recover moneys earned as a subcontractor under appellant Martin, who was the general contractor for the erection of a building at the State Normal School at Bellingham, Washington. The bonding company which furnished the general contractor's bond, and the trustees of the Normal School, were made parties defendant. The plaintiff also sought a refo...
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The plaintiff brought this action to recover damages for personal injuries. The cause was tried to the court and a jury, and resulted in a verdict in the sum of $6,750. Thereafter, motions for judgment notwithstanding the verdict and for new trial were made. The motion for judgment notwithstanding the verdict was overruled; the motion for new trial was overruled contingent upon the plaintiff elect...
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In this action Mrs. Marion O. Patterson sued Mr. E. E. Ericson and his wife Emeline *412 Ericson on two canses of action. The first canse, as amended at the trial, alleged two loans of money aggregating $475, upon which payments of thirty dollars and fifteen dollars respectively, were admitted. In the second cause of action, the defendants were charged with the conversion of an automobile belon...
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This action was brought by Cron Dehn, Inc., of Seattle, brokers and exporters, against Chelan Packing Company, a corporation, engaged in drying apples at Chelan, Washington, for damages for the breach of a written contract between the parties as follows: "Hans Cron, Pres. and Treas. Cable Address: "Karl Dehn, Mgr. and Sec'y. `Cronandehn' ...
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The plaintiff, as guardian of the estate of Arthur H. Campbell, a mentally incompetent person, brought this action against the ward's former guardian, J.A. Campbell, and the surety upon his bond for the balance found due when such guardian's final account was disapproved and he was removed as guardian. Judgment by default was taken against the former guardian. As to the United States Fidelity and ...
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This is an action to foreclose a trust deed conveying certain real property as security for the payment of a promissory note therein described. From a decree of foreclosure, as prayed for, the defendants Karshner have appealed. It appears without dispute that appellant Karshner, in January, 1926, began an action in the superior court for Snohomish county against the defendants Cowden upon an indeb...
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In the superior court of Chelan county, two actions were brought, in each of which injunctive relief was prayed for. The plaintiffs in one action were E.O. Hite and wife; in the other action, the plaintiff was Samuel Reid. In each action, the defendants were the Cashmere Cemetery Association, W.W. *Page 422 Jones and B.T. Vaughn. The two actions were, by stipulation, consolidated, and were tried ...
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These several cases all raise the same question, and they were consolidated for hearing in *Page 326 the superior court and have been consolidated for the purposes of this appeal. The several cases were originally instituted in the police court of the city of Tacoma, each charging the offense of following the trade of journeyman plumber in the city of Tacoma without first submitting to an examina...
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The State Board of Law Examiners filed a complaint against Edwin L. Brown, respondent, asking that his license to practice as an attorney at law of this state be revoked or suspended. The ease was tried before three district judges, who have made findings of fact and recommended that respondent’s license to practice as such attorney be suspended for a period of not less than one year. No good p...
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OPINION OF THE COURT Plaintiff, appellee, brought a suit in equity in Sandoval county against defendants, appellants, seeking to enforce a judgment lien upon the property of appellants, resulting in a decree against appellants. Appellee's suit was founded upon a judgment previously obtained by him in said county upon a cross-complaint filed by him against appellant, Alfre...
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OPINION OF THE COURT From an order of the district court, in a mandamus proceeding, dismissing the cause, relator appeals. The material facts are: On March 9, 1920, the state of New Mexico,' in a tax suit brought under the provisions of chapter 102, Laws 1919, recovered judgment against the board of trustee of the Anton Chico land grant for delinquent taxes on said grant for the years 1905 to...
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OPINION OF THE COURT Appellee listed certain property with the assessor of Sandoval county, but claimed that said property was used only for educational purposes and was exempt from taxation under section 3 of article 8 of the Constitution. After the board of county commissioners and the state tax commission had denied its claim of exemption, one-half of the taxes thereon...
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OPINION OF THE COURT The judgment appealed from allowed the claim of the college for $7,405, the balance of cost of erection of a Subscription 37 Cyc. p. 486 n. 33. *Page 131 building, the total cost of which the decedent had during his life promised to pay, and more than $70,000 of which total cost he had paid before his decease. The trial court found that the decedent ...
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OPINION OF THE COURT The appellant, Sperry, had a contract to construct a building. This contract is not in evidence, but the testimony shows that it included the construction of a tunnel involving excavation, setting of forms, and the pouring of concrete. Appellees, subcontractors, had a written contract with Sperry to do some of the work, including excavations for the t...
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ON PETITION FOR REHEARING Counsel for appellants is to be commended for the industrious and earnest efforts he has made in the petition for a rehearing to enforce the points relied on by him for a reversal of this case. He has with much ability practically reargued every point discussed by him in his briefs and oral argument on the hearing in this court, and has elaborated ...
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OPINION OF THE COURT The appellant, Robinson, who lived in precinct No. 32 of Colfax county, was sued by the appellee in the justice court of precinct No. 2 upon a store account amounting to $93.55. The plaintiff firm resided or had its place of business in precinct No. 1. Robinson appeared in the justice court and contested the action on the merits; he did not question t...
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Appellant assigns as error the order of the lower court denying and overruling the motion to modify error in judgment and costs, and seeks reversal thereof, asserting as grounds therefor: That the error sought to be remedied and corrected by said motion appears upon the face of the records of the trial court and is nonjudicial in character; that when the judgment was rendered the records of the tr...
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*5OPINION By the Court, This case is before us upon an appeal by the plaintiff from an order refusing to modify a judgment for costs. Without detailing the facts, it is the contention of the plaintiff that the item in question is not a legal charge. A copy of the cost bill, containing the item complained of, was served upon the then counsel for the plaintiff and filed with the clerk of the court o...
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Under the evidence there was no possibility of the court finding an expressed contract in favor of the plaintiff, and the findings as made by the court that there was an implied contract could only be based upon the fact that the Scheeline Banking Trust Company was the owner of the property and had profited through the efforts made by the plaintiff to sell the property. That is not supported by 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 182 That portion of the opinion of the Honorable District Court of Appeal which contains a statement of the issues involved, as well as its disposition of the motion to dismiss the appeal, is hereby adopted as a portion of the opinion of this court herein, as...
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In this cause, the opinion of Mr. Justice pro tempore Campbell, heretofore rendered by the Honorable District Court of Appeal for the First Appellate District, has our approval and is, with the exception of the last two paragraphs thereof, hereby adopted as the opinion of this court herein, as follows [(Cal. App.) 288 P. 1092]: "This is an action to compel the Building Inspector of the City of Pie...
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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 220 THE COURT. This is an appeal by the plaintiffs from a judgment of nonsuit in favor of certain defendants appearing and from a portion of a default judgment against defendants not appearing. The action was brought against more than two hundred defendants t...
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Appellant was the lessee of a building in the city of San Diego which belonged to James R. McNeece. A portion of the building was subleased by appellant to Jennie H. Hipwell, one of the respondents, for the term of seven years and eight months commencing on March 1, 1923, and ending on October 31, 1930, at a stipulated rental, payable in monthly installments. At the time of the execution of the su...
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This is an appeal by defendant from a judgment in favor of the plaintiff in an action to recover real estate broker's commission. The case has a history, which, for uses hereinafter, may be here related. The action was commenced in 1922. After issue joined a trial date was set and upon that date the taking of testimony began. At the conclusion of plaintiff's case, the court granted defendant's mot...
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THE COURT. [1] It is hereby ordered that the petition for a writ of mandate in the above-entitled matter be and the same is hereby denied, for the reason that petitioner should file in the first instance in the Superior Court of the State of California, in and for the County of Alameda....
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Appeal from a judgment entered after an order sustaining a demurrer to appellants' petition for writ of mandate. Petitioners seek to compel respondent to transfer to the 1925 Oakland harbor improvement fund from the 1925 Oakland harbor interest fund the amount of the premium realized on the sale of certain improvement bonds. The sole controversy between the parties is whether a premium realized on...
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This is an action to recover money alleged to be due upon a subscription for the capital stock of the plaintiff corporation. From a judgment for plaintiff the defendant appeals. The agreement sued upon is as follows: "For the purpose of erecting a modern building on the so called `Music Hall' property on North First Street in San Jose, California. I hereby subscribe for five shares of the capital ...
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These cases were tried together before the same jury, under agreement of counsel. A stipulation is on file with this court under which the cases are presented on one set of briefs, the court having made its order pursuant to the stipulation. The appeals are from judgments rendered in favor of the plaintiffs pursuant to the verdict of the jury. The action arises out of an automobile accident and in...
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Plaintiff brought this action to recover damages caused by a collision between his automobile and one driven by defendant's daughter. The answer pleaded contributory negligence. The court, sitting without a jury, found for plaintiff and gave him judgment in the sum of nine hundred dollars. Appellant urges as grounds for reversal that the court made no finding on the issue of contributory negligenc...
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On or about January 27, 1926, the respondent Sun Realty Company obtained judgment against the respondents Charles Rosenstein, James J. Wade and Catherine Wade and appellants for the sum of $1172.46, interest and costs. The judgment, which was joint and several, was obtained in a suit wherein the respondent corporation sued respondents Rosenstein and Wade, joining appellants, who were subtenants. 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 74 Leslie J. Eppstein and Alberta Eppstein, who are husband and wife, were informed against for issuing fictitious checks, a felony. Alberta Eppstein pleaded guilty and Leslie J. Eppstein not guilty, whereupon the cause was, as to him, set for trial. Before t...
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Defendant City of Oceanside is a municipal corporation organized under the general Municipal Corporation Act of the state of California (Deering's Gen. Laws 1923, Act 5233, sec. 850), as a city of the sixth class, while the other defendants, at the time of the institution of this action were members of and constituted its board of trustees. The plaintiffs are citizen residents and taxpayers of sai...
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[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 401 [EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 402 [EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE T...
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Condemnation proceedings by the City of Los Angeles against J.M. Moyer (now Mrs. J.M. York) and Charles Lantz. This is an appeal from an order taxing costs and reducing the amounts claimed by defendants in their memorandum of costs and disbursements, and involved two propositions: (1) The sufficiency of the notice of motion to tax costs. (2) The sufficiency of the evidence to sustain the findings ...
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THE COURT. The defendants Maderos and Atwine were charged jointly with having burglarized a Pacific Fruit *Page 52 Express car belonging to the Santa Fe Railroad Company. They entered pleas of not guilty and were tried together before a jury, each being found guilty of burglary of the second degree. Judgments of sentence were pronounced accordingly, and each defendant has appealed. The guilt of t...
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The petitioner was charged with the crime of murder. He entered pleas of "not guilty" and "not guilty by reason of insanity." At the hearing on the first of these pleas the jury returned a verdict of guilty of murder of the second degree. At the subsequent hearing on the second plea the jury returned a verdict of not guilty by reason of insanity. The petitioner was thereupon committed by the court...
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These appeals were taken from judgments entered in favor of the defendants. It was stipulated by counsel that they are companion cases and involve substantially the same situation and are governed by the same legal and equitable principles and that the decision of this court in the case of Imperial Farming Co. etal. v. Van Horn, No. 425, shall apply to and govern its companion case. In the ensuing...
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Defendant duly executed and delivered to the plaintiff the promissory note set out in the complaint. Two defenses are pleaded in the answer, viz.: That through the fault of the plaintiff the consideration for the note has wholly failed; and that there was no consideration for the execution or delivery of said note. The court found against the defendant on said second defense, but omitted to make ...
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Defendant appeals from a judgment rendered against him in an action to recover the reasonable value of work performed and services rendered at his special instance and request and for his benefit. Comparatively little aid can be obtained from a study of the. appellant’s brief as most of it is devoted to various discussions between court and counsel, whereby appellant seeks to show that the tria...
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Defendant was convicted of a violation of section 288 of the Penal Code, and upon this appeal raises one point only: That the trial court erred in giving to the jury the following instruction: “I have admonished you at various adjournments of the Court that you were not to have an expression of opinion among yourselves, or converse with yourselves about the case. *98 That admonition is now ne...
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The information in this case charged appellant, W. Cortez, in separate counts, with having issued two fictitious bank checks with intent to defraud, in violation of section 476a of the Penal Code. It also set forth three prior convictions of felony, all relating to the issuance of fraudulent checks, and showing that appellant was imprisoned in the state penitentiaries of California and Nebraska. A...
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This is an appeal from a judgment on the pleadings which was rendered in favor of plaintiffs on the third cause of action for the cancellation of a 20-year lease of land providing for the drilling of an oil-well within the limits of the city of Los Angeles. August 26, 1922, the respondents executed a 20-year lease of a tract of land consisting of 76.81 acres of land in San Fernando addition to the...
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This is an action upon an account stated. Trial was had by the court sitting with a jury and pursuant to the directions of the trial judge the jury returned its verdict in favor of the plaintiff and judgment being entered thereon the defendant prosecutes this appeal. The plaintiff is the assignee of one F.H. Dam, an attorney at law of the California bar. The complaint alleges that on November 1, 1...
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THE COURT. [1] The petition for writ of prohibition is denied. (Williams v. Chadbourne, 6 Cal. 559; Crocker v. Conrey, 140 Cal. 213 [73 P. 1006]; Bar Association v. Superior Court, 64 Cal.App. 590 [222 P. 185].) *Page 290 ...
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THE CUURT. – [1] On the authority of McKenzie v. LosAngeles Life Ins. Co. et al., 88 Cal.App. 259 [263 P. 338], the petition for a writ of supersedeas is hereby denied. *Page 1 ...
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The defendant was charged with the crime of maintaining a house of prostitution at 104 1/2 North Sixth street in the city of Portland. She was indicted under Or. L., § 2089. She appeals and contends in this court that there was no evidence that she had violated said section. She states that the only evidence adduced by the state that defendant violated said section 2089 is as follows: "Q. I would ...
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Defendant was convicted on the 29th day of January, 1930, of the crime of refusing to support his children. He and the mother of the children were divorced *Page 633 February 2, 1926, in Wheeler county, Oregon. The children were 8, 6 and 5 years old respectively at the time of the indictment, November 12, 1929. Defendant appeals from the judgment rendered on the verdict February 1, 1930, and base...
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Plaintiff, claiming to be the owner thereof, brought this suit to establish title to an undivided *Page 418 one-eighth interest in certain real property. The trial court sustained a demurrer to the complaint and, upon plaintiff's declining to plead further, dismissed the suit. From this order and decree, she has appealed. Plaintiff's claim of ownership grows out of the following facts which were ...
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The defendant was convicted of the crime of attempting to burn certain personal property with intent to defraud an insurer. The charging part of the indictment is as follows: "The said Edward M. Murphy on the 12th day of May, A.D. 1929, in the said county of Columbia and state of Oregon, then and there being, did then and there wilfully, unlawfully and feloniously attempt to set fire to and burn c...
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By this appeal plaintiffs in error, Carl Seaba and Eva Seaba, complain of the action of the district court of Kay county, Okla., in denying their application to vacate a judgment of forfeiture of an appeal bond executed by them as principal and surety, respectively, staying the execution of a judgment of conviction of the principal for the crime of burglary pending the determination of his appeal ...
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In Banc. This cause is here on a motion for an order requiring the clerk of Tillamook county to certify to this court certain documents employed by defendants and appellants in support of a motion to vacate the judgment from which defendant appeals. The motion to set aside and vacate said judgment is not based on a claim that the judgment was rendered without jurisdiction. Appellants' claim is tha...
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This action was commenced by M.A. Loftis, H.T. Doss, and others, who were taxpayers in school district No. 52 of Beckham county, to enjoin the members of the school board of that school district from issuing certain bonds in the sum *Page 282 of $19,000 which had been voted at an election held for that purpose. The grounds of complaint are: (1) That without the votes of a certain number of person...
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This is the fourth time the controversy involved in this litigation has been before this court. In 1921, Cora Adams, one of the plaintiffs in error herein, as plaintiff, instituted an action in the district court of Okmulgee county against the defendants herein, wherein she sought to recover the possession of the same lands involved in this action. She alleged that the allottee of the land was bor...
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L.W. Russell, as plaintiff below, brought this action against Wilson Company, defendant below, for the sum of $214.20 and costs for conversion of approximately 50 turkeys on which the plaintiff had a mortgage, which mortgage was duly filed. He alleged that the defendant took the turkeys from the mortgagors, slaughtered and shipped them to some eastern market. The defendant filed a general denial....
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The plaintiff in error, hereinafter referred to as the defendant, was jointly charged with Edwin Suggs and Charlie Henderson, with the crime of stealing live stock, was tried separately and convicted and sentenced to serve a term of two years in the penitentiary. Motion for new trial was filed, considered, overruled, and exceptions saved, and the case appealed by petition in error and case-made. T...
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Plaintiff in error, hereinafter called defendant, was convicted in the county court of Ellis county on a charge of having unlawful possession of 15 gallons of whisky, and his punishment fixed by the court *239 at a fine of $500 and imprisonment in the county jail for a period of six months. The evidence of the state was that they had a search warrant, and on searching the premises of the defe...
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The plaintiff in error was convicted in the county court of Osage county on a charge of pointing a pistol, and his punishment fixed by the court at a fine of |50 and imprisonment in the county jail for a period of 90 days. The judgment was entered on the 5th day. of April, 1929, and the record for appeal was lodged in this court on the 20th day of September, 1929. An appeal from conviction for ...
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The plaintiff in error, hereinafter called defendant, was convicted in the county court of Garfield county on a charge of having the unlawful possession of intoxicating liquor and was sentenced to pay a fine of $500 and to confinement in the county jail for a term of six months. The state has filed a motion to dismiss, from which it appears that the defendant, after conviction, was at large upo...
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Plaintiff in error was convicted in the county court of Garfield county on a charge of having unlawful possession of intoxicating liquor, and her punishment fixed at a fine of f500 and confinement in the county jail for a period of six months. The appeal in this case was filed in this court on the 24th day of July, 1929. No briefs have been filed on behalf of plaintiff in error and no appearanc...
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T.J. Golden, hereinafter referred to as defendant, was convicted in the county court of Choctaw county of the crime of pointing a deadly weapon at another, and was sentenced to pay a fine of $50 and to serve a term of three months in the county jail, which is the minimum sentence under the statute. The defendant first contends that the evidence is insufficient to support the verdict of the jury. D...
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The plaintiff in error, hereinafter called defendant, was convicted in the county court of Payne county on a charge of having unlawful possession of intoxicating liquor, and his punishment fixed by the jury at a fine of $250 and imprisonment in the county jail for a period of six months. The evidence of the state was that the officers procured a search warrant to search the premises at 621 East Ma...
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The plaintiff in error, hereinafter called the defendant, was convicted on a charge of embezzlement, and his punishment, fixed at two years in the penitentiary. Motion for new trial was filed, considered, overruled, exceptions saved, and the case appealed to this court. The state, to sustain its allegations, called O.M. Kramer, the party whose money the defendant is alleged to have embezzled. Kram...
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Plaintiff in error was convicted in the county court of Carter county on a charge of having unlawful possession of intoxicating liquor, to wit, one pint of corn whisky and 32 pints of choctaw beer, and his punishment fixed at a fine of f50 and confinement for 30 days in the county jail. The appeal' in this case was filed in this court on the 28th day of August, 1929. No briefs have been filed o...
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Plaintiffs in error were convicted in the county court of Alfalfa county on a charge of transportation of intoxicating liquor, and the punishment of each fixed at a fine of $50 and confinement in the county jail for a period of 30 days. The appeal in this case was filed in this court on the 16th day of September, 1929. No briefs have been filed on behalf of the plaintiffs in error, and no appea...
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Plaintiff in error was convicted in the county court of Pontotoc county on a charge of having unlawful possession of intoxicating liquor, to wit, two half-gallon jars of whisky, and his punishment fixed at a fine of f 50 and 30 days in the county jail. The appeal in this case was filed in this court on the 26th day of August, 1929. No briefs have been filed on behalf of the plaintiff in error, ...
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The plaintiff in error was convicted in the county court of Seminole county on a charge of having unlawful possession of 11 gallons of corn whisky, and his punishment fixed by the jury at a fine of $200 and imprisonment in the county jail for a period of 30 days. But one question is presented by this appeal, and that is the sufficiency of the evidence to support the verdict. Prom a careful exam...
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The plaintiffs in error,- hereinafter called defendants, were convicted in the district court of Jackson county of larceny of domestic fowls and were each sentenced to serve a term of one year in the state penitentiary. The judgment was entered in January, 1929, and the appeal was lodged in this court in July, 1929. No briefs in support of the appeal have been filed. The evidence sustains the v...
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Plaintiff in error was convicted in the county court of Kiowa county on a charge of having unlawful possession of intoxicating liquor, and his punishment fixed at a fine of $50 and confinement in the county jail for a period of 30 days. The appeal in this case was filed in this court on the 8th day of August, 1929. No briefs have been filed on behalf of the plaintiff in error, and no appearance...
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The plaintiff in error was convicted in the county court of Payne county on a charge of maintaining a place where intoxicating liquor is kept and sold, and his fine fixed by the jury at a fine of $250 and imprisonment in the county jail for a period of 90 days. But one question is presented by this appeal, and that is the sufficiency of the evidence to support the verdict. A careful examination...
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The plaintiff in error was convicted in the county court of Kiowa county on a charge of transporting intoxicating liquor, and was sentenced to pay a fine of $300 and to serve a term of 30 days in the county jail. The case was tried in October, 1928, and the appeal was lodged in this court in February, 1929. No briefs in support of the appeal have been filed. Under all the circumstances shown ...
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Plaintiff in error was convicted in the county court of McClain county on a charge of having unlawful possession of intoxicating liquor, and his punishment fixed at a fine of $200 and confinement in the county jail for a period of 60 days. The appeal in this case was filed in this court on the 22d day of August, 1929. No briefs have been filed on behalf of plaintiff in error and no appearance was ...
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The plaintiff in error was convicted in the county court of Custer county on a charge of sell *257 ing intoxicating liquor, to wit, one pint bottle of whisky, and his punishment fixed at a fine of $200 and confinement in the county jail for a period of two months. The appeal in this case was filed in this court on the 26th day of September, 1929. No briefs have been filed on behalf of the pla...
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Plaintiff in error was convicted in the county court of McClain county on a charge of having unlawful possession of intoxicating liquor, and his punishment fixed at a fine of $200 and confinement in the county jail for a period of 60 days. The appeal in this case was filed in this court on the 22d day of August, 1929. No briefs have been filed on behalf of plaintiff in error and no appearance was ...
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The petitioner, Bessie Simpkins, filed her verified petition in this court on August 25, 1930, showing that she is unlawfully imprisoned in the county jail of Pontotoc county, state of Oklahoma, by the sheriff of said county. She avers that she is not guilty of the crime of murder as charged, and the proof of the guilt of the crime charged is not evident nor is the presumption great; that heretof...
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Plaintiff in error was convicted in the county court of Comanche county on a charge of having: unlawful possession of intoxicating liquor, and his punishment fixed at a fine of $50 and confinement for a period of 30 days in the county jail. *254 The appeal in this case was filed in this court on the 14th day of September, 1929. No briefs have been filed on behalf of plaintiff in error and no-...
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Plaintiff in error was convicted in the county court of Noble county on a charge of having unlawful possession of intoxicating liquor^ and his punishment fixed at a fine of $100 and confinement in the county jail for a period of 30 days. The appeal in this case was filed in this court on the 14th day of August, 1929. No briefs have been filed on behalf of plaintiff in error, and no appearance w...
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Plaintiff in error was convicted in the county court of Cleveland county on a charge of maintaining a public nuisance, and his punishment fixed at a fine of $50 and confinement for a period of 30 days in the county jail. The appeal in this case was filed in this court on the 13th day of September, 1929. No briefs have been filed *228 on behalf of plaintiff in error and no appearance was made ...
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The plaintiff in error was convicted of the crime of transporting intoxicating liquor in the county court of Blaine county, and his punishment fixed at a fine of $50 and confinement in the county jail for a period of 30 days. The appeal in this case was filed in this court on the 13th day of March, 1929. No briefs have been filed on behalf of plaintiff in error and no appearance was made for or...
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Of its own motion the court dismisses the appeal herein because of appellant’s laches. (Note. — The above appeal was reinstated on November 18, 1929, and finally dismissed on stipulation of counsel on April 7, 1930.) ...
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Decided October 26, 1929. On motion of respondent, the attempted appeal herein is dismissed upon the authority of Hines v. Carl, 22 Mont. 501,57 P. 88 and Hahn v. James, 26 Mont. 50, 66 P. 463....
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Decided October 26, 1929. Of its own motion the court dismisses the appeal herein because of appellant's laches....
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Decided October 26, 1929. Of its own motion the court dismisses the appeal herein because of appellant's laches....
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Decided October 26, 1929. The appeal herein is dismissed as settled, at request of appellant....
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Respondent’s motion to dismiss the appeal herein is sustained, for the reason that the transcript on appeal has not been filed within time. ...
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Decided November 15, 1929. It appearing that this cause has been settled, it is ordered that the appeal be dismissed....
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Pursuant to stipulation of counsel it is ordered that the appeal in the above-entitled cause be dismissed. ...
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Decided November 8, 1929. The application for a writ of supervisory control herein is denied....
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The petition for a writ of mandate herein is denied. Conceding that the amended answer does not present any new issue, that the affirmative defense is no better, and that the counterclaim is unwarranted, all of which appears probable, though not now decided, the district court has jurisdiction of the cause in which the order complained of was made, and upon the facts presented we cannot say it ha...
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The attorney general’s motion to dismiss defendant’s appeal on the ground that the transcript on appeal has not been filed within the time allowed by law, is-sustained and the appeal is dismissed. ...
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Decided November 12, 1929. The application for writ of supervisory control herein is denied....
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Decided November 13, 1929. Relator's petition for writ of mandate herein is denied....
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Decided October 26, 1929. Of its own motion the court dismisses the appeal herein because of appellant's laches....
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