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All Reporters → p → Volume 296

Opinions in p Volume 296

The law in force when the bonds in question were issued became a part of the contract with the bondholders, the same as though incorporated in the bonds. (United States ex rel. Von Hoffman v. Quincy, 4 Wall. (U.S.) 535, 18 L. Ed. 403; Louisiana v.New Orleans, 102 U.S. 203, 26 L. Ed. 132; Louisiana ex rel.Hubbert v. New Orleans, 215 U.S. 170, 54 L. Ed. 144,30 Sup. Ct. Rep. 40; Seibert v. United Sta...
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The court erred in overruling interveners' objections to the plaintiff giving opinion evidence as to what was a reasonable attorney's fee to be allowed plaintiff on *Page 213 the foreclosure as to the Stuart car, when there was not the slightest attempt made to even seemingly qualify him by showing he was to any extent familiar with attorneys' charges or that he knew anything whatever about the a...
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ON PETITION FOR REHEARING Rehearing granted. ON REHEARING February 18, 1931. 296 P. 26....
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This is a suit brought by plaintiff against defendants for the purpose of quieting his title to four tracts of land situate in Tillamook county, Oregon. The land is described by metes and bounds in the amended complaint, and there is no dispute as to the particular land involved in this case. Plaintiff alleges that he is the owner in fee simple and in possession of the property, and that defendant...
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In Banc. Based "upon the record of this cause and wherein it appears that the judgment was entered in the lower court on October 22, 1929, and that no bill of exceptions was tendered to the lower court until on October 17, 1930, and after the argument of this cause before this court," the plaintiff has filed a motion to expunge the bill of exceptions, dismiss the appeal, and affirm the judgment ap...
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This is an action by a seaman to recover damages on account of a personal injury which befell him upon the high seas. The complaint in effect charges the defendant with having negligently failed to provide the plaintiff with a safe place in which to work. The answer, after denying all charges of negligence, alleges as further defenses (1) assumption of risk, (2) unavoidable accident, and (3) contr...
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This is a proceeding to contest the will of Clara C. DeHaas who died in Portland, Oregon, April 29, 1928, at the age of 68 years, leaving as her sole heirs at law W.H. DeHaas, widower of decedent, and Audrien Brumbaugh, daughter, aged about 40 years, both of whom resided in Portland, Oregon. The trial court made findings of fact and conclusions of law in favor of contestant and against the propone...
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On the 11th day of March, 1930, the plaintiff instituted a suit to enjoin defendant, Low, from making a sale upon execution of certain real property belonging to plaintiff. In his complaint, plaintiff alleges that defendant Low was and is the sheriff of Klamath county, Oregon; that on the 23d day of April, 1925, a judgment in an action for damages, accruing because of an automobile collision, was ...
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In Banc. This suit was instituted for the purpose of determining whether certain real property owned by the city of Portland and used for corporate purposes is subject to taxation. Title to the three parcels of real property was acquired by the city after the taxes had been assessed on March first, but before any levy had been made. In other words, the property in question was in private ownership...
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This action is predicated upon an alleged contract between plaintiff and the defendant corporation for the payment of compensation which the plaintiff asserts is due him for furnishing a device and invention *Page 337 for keeping the defendant's steel bridge over the Willamette river at Portland open to traffic and navigation while the draw was undergoing repairs. It appears that, in the year 192...
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In this action plaintiff, as administratrix of the estate of Mary H. Pitzer, deceased, seeks to recover judgment against the defendant as executrix of the last will and testament of Antone Fogle, deceased, for the reasonable value of services alleged to have been performed by plaintiff's intestate for said Fogle at his special instance and request between October 27, 1897, and August 3, 1921, the ...
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The plaintiffs have brought this suit to enjoin the defendants constituting the state land board from leasing to defendant Charles R. Miles certain lands in Clatsop county consisting of a sand bar or mud flat in the Columbia river situate about two miles upstream from Tongue Point, which lands are *Page 450 claimed by plaintiffs as an accretion to certain tide lands purchased by plaintiff Katz fr...
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This is an original proceeding in mandamus instituted in this court by the relators, who were the defendants in a personal injury action entitled B.H. West v. United Railways Co. et al., against the defendant who as one of the judges of the circuit court of Multnomah county presided at the trial of that action. The relief sought is an order holding invalid an order made by this defendant which ame...
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This is the personal injury action referred to in the mandamus proceeding entitled State of Oregon ex rel. United Railways Co.et al. v. W.A. Ekwall, this day decided by us. See ante, page 439. It was there held that the amended bill of exceptions, which contained no exception to the ruling of the circuit court denying defendants' motion for a directed verdict, was regular. Since the defendant clai...
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This is a suit instituted by P.K. Nalley, plaintiff and appellant, for the purpose of procuring a declaratory decree to the effect that he, the said P.K. Nalley, is the owner of an undivided one-half interest in and to certain property described in a certain instrument executed on the 11th day of February, 1928, by William A. Pointer, now deceased, and to impress a trust upon such property. On sai...
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This is an appeal by Linn County from a judgment awarding damages for the establishment of a public highway across respondents' premises. The record shows that the road was established by resolution of the county court of said county; that the county court offered to pay respondents $1,000 for the necessary right of way thereover; that, upon respondents' refusal to accept said offer, it appointed ...
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Plaintiff brought this action to recover damages in the sum of $5,427.14 alleged to have been occasioned to certain onions when the building in which they were stored collapsed. While the complaint contains averments of misrepresentation in the letting of the building, plaintiff's principal theory appears to be that the collapse of the structure is traceable to its noncompliance with the building ...
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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 534 By information filed by the district attorney of Los Angeles County the defendant was charged with the murder, on February 21, 1930, of his wife, Vera Gingell, in the first count, and of Sigurd Bjorneby, in the second count. The jury returned a verdict of...
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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 558 Plaintiff recovered damages for personal injuries in an action brought by her against the defendant Sutter Hospital Association. On appeal, the judgment was reversed by the District Court of Appeal for the Third Appellate District. A hearing was granted i...
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In the estate of Cornelia Bowman, deceased, certain property consisting of money and corporate stock, was decreed and distributed to the Union Trust Company upon the following trust conditions: "To invest and keep the said trust estate invested so that income might be derived therefrom and to use the income of the said trust estate according to its best judgment for the maintenance and education o...
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THE COURT. A hearing in this matter was granted by this court for the purpose of giving further consideration to certain contentions urged by appellant-petitioner as to *Page 553 the soundness of the conclusion arrived at by the District Court of Appeal. Such investigation leads us to the conclusion that the trial court did not abuse or misuse its power by discharging the attachment and that the ...
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All the parties above named excepting D.E. Burgess, denominated defendant and cross-complainant, respondent herein, and Indemnity Insurance Company of North America, defendant and appellant herein, have no further part in this litigation for the reason that they, by appropriate judgments, settlements and stipulations have disposed of their several controversies. *Page 38 The appellant gave notice...
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In each of four counts of an indictment, defendant Breitenstein and three other persons respectively named Earle, Ward and Ducey were charged with the commission of the crime of grand theft. Earle was the city engineer of the city of Pasadena; Ward was his assistant, and the two defendants Ducey and Breitenstein were partners engaged in said city in the business of contracting in matters affecting...
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This is an appeal on the judgment-roll from a default judgment. In the complaint it is alleged that the seventh day of January, 1927, is the date of the marriage of the plaintiff and his wife. The complaint then' proceeded to allege certain facts constituting enticement or alienation of affection of the plaintiff’s wife, all of which facts occurred prior to January 7, 1927, to wit: in Novembe...
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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 460 THE COURT. This action was brought to recover damages for the alleged breach of a contract. The jury returned a verdict for the plaintiff in the sum of $3,000. Defendants' motion for a new trial was denied, and they have appealed from the judgment entered...
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THE COURT. An application for a writ of habeas corpus. Duel and Gibeau, in whose behalf the application is filed, were charged jointly by information with the crime of robbery, it being alleged that they did "wilfully, unlawfully, and feloniously steal, take and carry away from the person, possession and immediate presence of one Arthur Scovil, who was then and there acting as clerk, agent and ser...
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This is an appeal from a decree quieting title to an unimproved lot at Hermosa Beach, valued at $600. In February, 1922, Sarah W. Hughes and A.S. Hughes, husband and wife, owned lot 89, Walter Ransome Company's Venable Place of Los Angeles County according to the map of that tract recorded in book 9 of maps, page 150, Los Angeles records. February 6, 1922, the plaintiff purchased that lot from the...
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Appellant was charged, by an information filed by the district attorney of Fresno County, with the crime of possession by an unnaturalized foreign-born person of a firearm capable of being concealed about his person. The jury returned a verdict of guilty and judgment was pronounced upon him. His motion for a new trial was denied. This appeal was taken from the judgment and from the order denying t...
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This is an original proceeding in certiorari. The petitioner sued in the justice's court of Oakland township against Lindley Marinello Shop on an open book account for $99.63. The defendant answered and by way of counterclaim demanded the sum of $175 as damages for a writ of attachment levied by the plaintiff in the cause. Defendant had judgment for the sum prayed for and plaintiff appealed to the...
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This is an appeal from the judgment awarding damages for death of the plaintiff's husband. The plaintiff and her husband at about 10 o'clock at night January 13, 1928, alighted from the front end of a west-bound municipal street-car at the safety station at Ocean Avenue opposite Cedro Avenue in San Francisco. To what extent that neighborhood is populated the record does not disclose nor does it di...
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The plaintiff executed to appellant a five-year lease of real property, consisting of a lot and several unfurnished bungalows. Appellant furnished the bungalows, and executed to the plaintiff as security for performance of the covenants of the lease a chattel mortgage on the furniture. Thereafter appellant assigned said lease to the defendant Herbert. In connection with said assignment appellant a...
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Plaintiff sought to recover the benefits to which he claimed to be entitled under the disability provisions of three life insurance policies. Upon a trial by the court sitting without a jury judgment was entered in favor of plaintiff, from which judgment defendant appeals. On July 19, 1926, plaintiff became totally disabled as the result of a disease known as hyper-thyroidism and remained so total...
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This is an appeal from a judgment *Page 756 for damages for personal injuries which were sustained as a result of an autostage casualty. The plaintiff was riding as a passenger in the defendant's autostage from Eureka to Crannell. At a point near McKinleyville, the stage suddenly plunged from the highway into a ditch where it turned partly over against an embankment. The plaintiff was thrown viol...
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The plaintiff had judgment in this action *41 against the J. W. Jameson Corporation, from which judgment the corporation appeals. The record shows that on January 14, 1924, the following instrument was executed by the Jameson Oil Company, and delivered to the plaintiff in this action, to wit: “Freight Audit Contract. Bailey & Sweat, “San Francisco. . . . “The undersi...
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This is an appeal from a judgment for plaintiff in a personal injury case tried without a jury by the court. The cause of action arose from an automobile collision which occurred at about 4:30 P.M., June 30, 1929, at the intersection of Twenty-seventh Street and S Street, which streets intersect at right angles, Twenty-seventh Street extending north and south and S Street east and west, in the cit...
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Plaintiff sued for an accounting of the amount due from the defendant under its franchise to use the public streets of the plaintiff city for the distribution of gas. Plaintiff had judgment for $894.44, and the defendant appeals on typewritten transcripts. Defendant is the successor in interest of a franchise granted in September, 1905, under the terms of the Broughton Act (Stats. 1905, p. 777). T...
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The plaintiff had judgment against the defendant for the principal and interest due upon a promissory note executed by the defendant and delivered to the plaintiff, which note is in the following words and figures, to wit: “1400.00 September 25/28 “For value received I promise to pay to Bujah Singh Fourteen Hundred 00/100 1400.00. In ninety days from date at West Island, Calif. “H. S. White...
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THE COURT. Action on a common count for money had and received. Plaintiff, an incompetent, through his guardian in substance, alleged that on or about July 19, 1927, defendant received from plaintiff the sum of $500 to and for the use of plaintiff; that on or about the twenty-fourth day of August of the same year he received the further sum of $1,000 for plaintiff's use. The complaint further alle...
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THE COURT. Application for allowance of attorney's fees due for services rendered an incompetent. On May 28, 1929, George F. Witter, Esq., served upon the guardian of Mads Nielsen, an incompetent, a copy of a petition for allowance of fees, wherein it was prayed that the court make its order fixing an amount as a reasonable compensation for services rendered by said Witter to said incompetent befo...
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THE COURT. Appeal from an order fixing attorney's fees in the estate of an incompetent. [1] The order is affirmed on authority of Estate of Nielsen,ante, p. 744 [296 P. 122], this day decided. *Page 768 [EDITORS' NOTE: THIS PAGE IS BLANK.] *Page 1 ...
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This is an action for unlawful detainer, arising upon the terms of a written lease. The instrument was entered into between plaintiffs as lessors and the defendants Klein and Weiss as lessees, but the latter assigned their interest under it to Thomas B. Key, formerly a defendant in the action, and the present defendant Nellie Key. Pending proceedings in the trial court Thomas B. Key died and defen...
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Having received personal injuries resulting in disability during the course of his employment, appellant instituted proper proceedings and was allowed compensation and medical treatment under the provisions of the Workmen's Compensation and Safety Act (Stats. 1917, p. 831). Thereafter he filed an action against his employers and the hospital and physicians to whom he had been referred for medical ...
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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 484 This is an appeal from a judgment entered in favor of respondents for damages resulting from the death of Peady Gilbert Lindsey. The case was tried before a jury. Respondents are the widow and minor children of Peady Gilbert Lindsey, deceased, who was kil...
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On November 22,1929, the respondents Poe recovered a judgment in the superior court of Yakima county against the appellant Albert L. Smith for the sum of $3,505.48. Smith was a married man, and the judgment was founded on a community obligation. The judgment creditors failed to find any property out of which the judgment could be satisfied, and on February 27,1930, they instituted supplemental pr...
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Alleging that Lillian Drenkhahn was engaged to marry him, and was maliciously induced by the defendant to breach that contract, plaintiff seeks in this action to recover damages for humiliation, mental anguish, and loss of time, claimed to have been suffered by him as a result of that breach of contract. Defendant's demurrer to the complaint was sustained. The appeal is from the judgment of dismis...
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The Northwestern Portland Cement Company is a corporation organized under the laws of this state, and is engaged in the business of manufacturing Portland cement. Its manufacturing plant is located at Grotto, a place some forty-seven miles easterly of the city of Everett; both places being within the state of Washington, and both being tributary to the main line of the Great Northern Railway Compa...
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During the month of May 1929, defendants, as general contractors, were engaged in the erection of an addition to a hospital at Port Townsend. The new portion of the building was in place up to and including the second floor, and in the course of the work, defendants were using a construction hoist, consisting of a cage attached to a cable operated through pulleys and sheaves over a drum, for the p...
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I am unable to concur in the latter part of the opinion denying an allowance for the child of the injured workman, born in lawful wedlock after the injury. Possibly, if no practical construction had been placed upon the act, I might follow the construction now placed upon it by the majority; but, since the Attorney General, more than ten years ago, ruled, as indicated in the majority opinion, that...
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In their amended complaint, plaintiffs alleged, inter alia, that the defendants, E. Marie Heslop and John Doe Heslop, were husband and wife, and that, during the month of March, 1929, plaintiffs leased to defendants a building known as the Metz apartments, situated on lots two and three, block eleven, J.J. McGilvra's Third Addition to the city of Seattle, at a rental of six hundred dollars per mon...
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Plaintiff Emily Hattie O'Brien was injured as the result of a fall sustained upon alighting from a street car owned and operated by defendant. Plaintiffs filed with the city their verified claim for damages on account of the injuries suffered by Mrs. O'Brien, and, upon rejection of their claim, instituted this action. On the issues being made up, the cause was tried to a jury, which returned a ver...
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At the suit of a creditor in May, 1929, a receiver was appointed for the Butler Hotel Company, as an insolvent corporation in Seattle. John E. Savage and his wife Marie Savage owned nearly all of the capital stock of the corporation. At the time of the appointment of the receiver, the corporation had *Page 110 been running the hotel for about ten years. Mr. and Mrs. Savage presented several separ...
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An automobile was purchased by the plaintiff on conditional sales contract. That contract was assigned by plaintiff's vendor to the defendant, who seized the automobile because of plaintiff's failure to pay certain installments at maturity. Plaintiff instituted *Page 87 an action to recover from the defendant the automobile, or its alleged value of one thousand dollars. A bond was furnished by th...
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Two consolidated actions are before us on this appeal, one originally by the supervisor of *Page 97 banking and his special deputy, the liquidator of Hayes Hayes Bank, an insolvent banking corporation, against California-Washington Timber Company, a corporation, and the other by the California-Washington Timber Company, a corporation, against the supervisor of banking and his special deputy supe...
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This action was originally commenced in the superior court for King county by the plaintiffs, Hall and Olswang, copartners, as assignees of R.R. Musselman, seeking recovery against the defendants, Blackadder, a contractor, the Aetna Casualty Surety Company as surety on his construction bond, and School District No. 25 of King county, for labor performed by Musselman in the construction of a build...
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The DuCharme Belting Company, partners, appellants, claiming to have performed labor *Page 115 and furnished material between January 26, 1929, and March 3, 1929, in the sum of $402.05, in repairing the factory of the American Wood Pipe Company, a corporation, in Pierce county, filed with the county auditor a written notice or claim of lien therefor, on April 16, 1929. Two days later, at the suit...
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Plaintiff brought this suit to recover the balance due on a promissory note, dated May 2, 1924, executed and delivered by the defendant Day, payable six months after date to the order of the Farmers National Bank of Colfax, which, after maturity and for a valuable consideration, it endorsed and delivered to plaintiff. The complaint is in the usual form. Defendant, in his answer, admitted the execu...
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Olympic Furniture Company, a domestic corporation, engaged in business in the city of Olympia as a retail dealer in furniture, being insolvent, under date November 19, 1929, executed to Seattle Association of Credit Men, a corporation, as assignee, an assignment whereby it transferred to its assignee, in trust for its creditors, all of its assets. This assignment was, November 27, 1929, filed for ...
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A policy of fire insurance covering an automobile truck was issued by the Pacific Fire Insurance Company to the Wells Chevrolet Company, as vendor and mortgagee, and to William Schlegel, as vendee and mortgagor of the insured chattel. Upon the refusal of the insurer to pay for the destruction by fire of the truck, the Wells Chevrolet Company brought this action against the insurer to recover on th...
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This action was brought to recover the balance of a dividend from an insolvent bank. The defendant, the state supervisor of banking, in his answer admitted the allegations of the complaint, and pleaded an offset, in that the plaintiff was indebted, *Page 81 on account of interest on deferred payments of the plaintiff's superadded stock liability, to an amount equal to the dividend not paid. The c...
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Notice of appeal in this cause was served and filed July 29, 1930, and transcript filed September 18th following. Time for filing appellant's brief having expired and no extension having been applied for, the cause was duly set for hearing, the day fixed being February 11, 1931. Notice thereof was mailed counsel by the clerk January 29th *Page 362 preceding. On January 31st, respondent filed its ...
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January 6, 1925, the village trustees of Oakley initiated proceedings which resulted in the issuance on the 14th of March of the same year, of municipal bonds for the purchase of a waterworks system. January 28, 1925, appellants commenced under C. S., sec. 4101, amended Session Laws 1921, page 258, chapter 111, proceedings to detach their farm lands theretofore within the village boundaries, judgm...
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On September 13, 1925, appellant commenced an action in claim and delivery in the district court *Page 356 for Cassia county against one E.R. Russell for possession of a partly threshed crop of wheat grown during the year 1925 upon certain lands in said county. At the same time appellant delivered to the sheriff a proper affidavit and undertaking in said action, together with an order indorsed on...
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This is a suit to quiet title to certain real property. The original owners, Eugene G. Gauss and Lydia M. Gauss, husband and wife, incumbered the property by the execution of three mortgages, respectively, to Equitable Savings Loan Association on August 25, 1919, W.A. Heiss, October 1, 1919, Davidson Grocery Company, June 24, 1923. On February 25, 1925, the mortgagors conveyed the property by qui...
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Payette County, one of the governmental subdivisions of the state of Idaho, presented to this court an application for a writ of mandate against the above-named defendants, as the State Board of Equalization, asking that the writ issue directing them to order a reassessment of the following classes of personal property, viz.: household goods, tools, farm implements and machinery in the counties of...
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This is an appeal from a judgment of the district court of Muskogee county rendered on the 30th day of January, 1930, in an action wherein the plaintiff in error was plaintiff. The motion for new trial was overruled February 1, 1930, and the time in which to serve case-made was extended 60 days from that date. On April 1, 1930, by order of the court, the time to serve case-made was extended 60 day...
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This is an appeal from a judgment of the district court of Muskogee county rendered on the 30th day of January, 1930, in an action wherein the plaintiff in error was plaintiff. The motion for new trial was overruled February 1, 1930, and the time in which to serve case-made was extended 60 days from that date. On April 1, 1930, by order of the court, the time to serve case-made was extended 60 day...
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This is an action for the care and custody of a minor child and for costs for maintenance of said child. This action grows out of a divorce proceeding wherein plaintiff sued for and was granted a divorce from the defendant. The divorce action, however, is not before this court. Plaintiff in error was defendant below. Defendant in error was plaintiff below. The parties will be referred to as they 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 448 This is an action mentioned by counsel as one in equity and under the declaratory judgments act, brought in Goshen County, Wyoming, in which the plaintiff, the Holly Sugar Corporation, joined as defendants 381 persons who had grown beets and delivered the...
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This is a case wherein a judgment of the District Court of Laramie County comes before us upon proceedings in error, a review thereof having previously been sought by the method of direct appeal. That appeal was dismissed for failure to file the record in this court within time as the law directs. (Samuelson v. Tribune Publishing Co., 41 Wyo. 487, 287 P. 83.) The cause has been argued and submitte...
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Certiorari to review an order of the Industrial Commission of Utah denying compensation to plaintiff for injuries resulting from an accident while working at the quarry of the defendant Southern Pacific Company at Lakeside, Utah, The findings and decision of the commission were as follows: "Alex Gogoff, the applicant herein, on the 26th day of March, 1929, was employed by Murray E. Burns. Murray E...
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The plaintiff and appellant brought this action to recover from the defendants certain mining property; to have the defendant Anderson and the Park Galena Mining Company decreed to hold said property in trust; and for an accounting by the defendant for ores extracted from the mining properties and moneys received therefrom. One of the defenses pleaded is that the cause of action set out by plainti...
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The sole question presented on this appeal arises upon a demurrer which denies that plaintiff's complaint states a cause of action. The demurrer was sustained and the action dismissed. Plaintiff appeals and assigns such rulings as error. The complaint reads as follows: "Plaintiff complains of defendants, and for cause thereof alleges: "I. That on the 4th day of October, 1923, at Salt Lake City, Ut...
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This action is founded upon a written contract for the lease of two tracts of land located in Davis County, Utah. By his complaint, plaintiff seeks to recover possession of the premises leased and to recover a judgment against the defendants for money alleged to be owing to the plaintiff under the terms of the lease. In the court below, the plaintiff was denied possession of the leased property, ...
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Young Mines Company, Ltd., a corporation, hereinafter called plaintiff, brought suit against Citizens' State Bank, a corporation, and E.S. Wakelin, hereinafter called defendants, to recover the sum of $5,768 for money had and received. Defendants by their answer set up the statute of limitations; that the money in question was retained under instructions from plaintiff, and an estoppel by subseque...
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I.A. Markus, hereinafter called plaintiff, brought suit against Arizona Land Stock *Page 532 Company, a corporation, hereinafter called defendant, to quiet title to a certain parcel of ground located in the town of Gila Bend. The case was tried to the court without a jury, and judgment rendered in favor of plaintiff, and from said judgment this appeal was taken. Plaintiff's complaint, in substan...
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On January 5, 1905, Sam Thorpe and J.T. Arrowsmith duly located two mining claims, under the names "Dixie King" and "Superior King," situated in the Pioneer mining district, Pinal county. Together they performed the annual representation work on the claims until in 1908, when Arrowsmith died, leaving surviving him his wife, Henrietta, and a minor child named Lee. Thereafter, during the years 1911,...
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This is an action by D.N. Villa against Catalina Villa, Catalina Villa as executrix of the estate of Lorenzo Villa, deceased, and Roy Titcomb, Incorporated, praying for a decree establishing her title to certain real estate in Phoenix, Arizona, and canceling a mortgage thereon executed by Lorenzo Villa and Catalina Villa, his wife, to Roy Titcomb, Incorporated. The facts in the case are undisput...
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This action was instituted in December, 1927, by John F. Ralston and Elma E. Ralston, his wife, to recover of the United Verde Extension Mining Company damages for the loss of crops and the rental value of certain lands, and from a judgment in their favor entered upon the verdict of a jury the defendant appeals. The plaintiffs are the owners of 160 acres of land situated on the Verde River about n...
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This is an appeal from an order denying the admission to probate of an alleged holographic will. The facts in the case are not in dispute, and may be briefly stated as follows: Mary C. Harris, hereinafter called decedent, died in Prescott, Arizona, November 10, 1929. Her husband, John Harris, predeceased her about a week. Mrs. Harris left surviving her as heirs a number *Page 3 of brothers and si...
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This is an appeal from an order denying the admission to probate of an alleged holographic will. The facts in the case are not in dispute, and may be briefly stated as follows: Mary C. Harris, hereinafter called decedent, died in Prescott, Arizona, November 10, 1929. Her husband, John Harris, predeceased her about a week. Mrs. Harris left, surviving her as heirs a number *3of brothers and sisters ...
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This action in tort was commenced by Isidro and Mary Gil, husband and wife, to collect from the Pickwick Stages Corporation damages to their Nash sedan automobile, caused by collision with one of the latter's stagecoaches on the public highway between Tempe and Mesa in Maricopa county, on July 13, 1929. The answer was a general denial. *Page 8 The trial resulted in a verdict and judgment in favor...
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THE Public Utilities Commission sued M. B. Swena to recover the amount of a fine imposed by it in a contempt proceeding. It is alleged in the complaint that the commission found that Swena was operating as a motor vehicle carrier without having obtained a certificate of public convenience and necessity, and ordered him to desist; that he violated such order and was adjudged by the commission to be...
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OPINION OF THE COURT This is a suit in replevin, instituted by appellant to recover the possession of twenty-three head of cattle. The complaint is in usual form. The cattle were taken from appellee under the writ and delivered into the possession of appellant. The appellee's answer was in two parts. The first part consisted of either specific or general denials of all of...
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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 570 THE COURT. A hearing was granted in this court after decision by the District Court of Appeal, Third Appellate District, per Mr. Presiding Justice Finch, in order to *Page 571 examine more fully the single question presented by the record. Upon such exam...
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Application having been duly made to this court by the respondents herein, filed on December 9, 1930, pursuant to section 956a of the Code, of Civil Procedure and rule XXXVIII of this court, for an order that evidence concerning facts occurring subsequent to the entry of the order granting the preliminary injunction appealed from herein be taken on the issue that said order and preliminary injunc...
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The plaintiff brought this action to foreclose a lien for materials alleged to have been sold to the defendants and used by them in the sinking of a well. Defendant Dionne did not appear. Defendant Wolski, owner of the land, interposed an answer in which he denied the allegations of the complaint and set up certain special *Page 564 defenses. At the outset of the trial, it was stipulated that all...
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Action for damages for assault and battery. On December 10, 1926, plaintiff and a companion were trespassers upon the inclosed and duly posted game preserve of defendant Spalding Company, a corporation, then and there in charge of the defendant Evans, who was also a duly commissioned deputy sheriff of the county of Glenn. Plaintiff was in quest of wild geese and both he and his companion had shotg...
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This proceeding was instituted to review an order of the Board of Governors of The State Bar of California, recommending to this court that petitioner Homer C. Mills be disbarred from the practice of the law in this state, which recommendation was based upon findings made by Local Administrative Committee No. 3 of the county of Los Angeles, after its hearing, upon legal notice and in due form, of...
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The plaintiffs commenced this action on behalf of themselves and of the Eureka Fishermen's Union, a voluntary association of commercial fishermen, against the defendants, who are members and officers of the California Fish and Game Commission, to restrain the latter from interfering with or prosecuting criminal or other actions against the plaintiffs and their fellow members of the association on ...
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THE COURT. This is an appeal by two of the defendants from a judgment in the plaintiff's favor in an action for damages for fraud and deceit alleged to have been practiced upon the plaintiff by all of the defendants acting in concert, by reason whereof the plaintiff was induced to exchange his real property for real property of one of the defendants. It was also alleged that the defendant vendor m...
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This is the second appeal in this case, the first having been decided by the District Court of Appeal, Third Appellate District. (Taylor v. Bunnell, 77 Cal.App. 525 [247 P. 240].) The facts recited in the opinion on that appeal, supplemented by what is stated herein, are sufficient for the purposes of this appeal. The action was brought to establish a constructive trust in certain real property de...
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THE COURT. Both appellants and respondents being desirous that a rehearing be granted in this case, appellants questioning the correctness of the decision in holding that the cause of action was brought to recover a penalty, and hence was not assignable, and respondents questioning the correctness of the conclusion that the action was saved from abatement by the general provision of section 404 of...
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THE COURT. In this action the same questions are presented as were before the court in the case of Fred E. Peterson v. W.F. Ball (L.A. No. 10957), ante, p. 461 [296 P. 291], this day decided. The parties are practically the same in each action and the only difference in the two relates to the amount of the indebtedness claimed to have been illegally incurred. The same procedure was had in this act...
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This is an appeal by defendants Estrin and Garbus from an order made by the lower court vacating its previous order dismissing the action and also from the order granting plaintiff permission to file an amended complaint. The appeal on the ground last mentioned has been dismissed (98 Cal.App. 365 [276 P. 1036]). Plaintiff filed her complaint in the court below claiming damages for alleged personal...
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The plaintiff is prosecuting an appeal from a judgment of the Superior Court of Los Angeles County, reversing a judgment of the Municipal Court of Los Angeles city, and ordering a new trial therein and directing that appellant recover costs of appeal. This was based upon the superior court’s conclusion that the plaintiff was entitled to the sum of $31.79 only, which was the difference between the...
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This is an application for the writ of mandate by which it is sought to compel the respondent court to dismiss an action in unlawful detainer. The alternative writ was not issued, the petitioner preferring to bring the matter on for hearing upon notice to the respondent. From the petition it appears that D.W. Henderson filed a complaint in the municipal court (the petition fails to state the date)...
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This cause is based upon certain obligations incurred by Welton C. Rhodes, as sheriff of the County of Madera, for detective hire, etc. The items upon which this action is based appear to be in excess of the amount allowed to the office of sheriff by the county budget for the fiscal year beginning June 1, 1928, and ending June 30, 1929. By the budget the sheriff was allowed the sum of $1,000, this...
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This is an appeal from a judgment which was rendered upon a verdict for damages for personal injuries resulting from a collision between automobiles. The only question involved in the appeal is whether the plaintiff was guilty of contributory negligence. Kettleman Lane and Quimby Avenue intersect at right angles one mile south from Lodi. The first mentioned lane runs east and west. The other one e...
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This is an application for a writ of habeas corpus. The petitioner was tried in the justice's court of Santa Ana township, county of Orange, upon a complaint charging him with failure to support his minor children, a misdemeanor; the complaint charging that this offense was committed within the county of Orange, state of California. He was found guilty and sentenced to imprisonment in the county j...
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This bis an appeal from an order dismissing a petition to revoke the probate of a will. The dismissal was ordered on the ground that the petition was filed loo late. Section 1327 of the Code of Civil Procedure, by an amendment which took effect on August 14, 1929 (Stats. 1929, p. 860), allows a contest of a will after probate to be filed within six months after admission to probate. In the pres...
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In April, 1926, the plaintiff sold to the defendant a new grain binder and engine, which proved defective during the ensuing harvesting season. A new contract was entered into in writing between the parties on the twenty-fourth day of August, 1926, providing for the sale of the binder and engine to the defendant for $515, $104 of which was paid in cash, and the defendant agreed to pay the balance ...
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Plaintiff sought to recover damages for an injury sustained when bitten by a dog belonging to defendants. The cause was tried by the court sitting without a jury and from a judgment in favor of plaintiff defendants appeal. Plaintiff alleged in her complaint that the dog was of "vicious disposition and dangerous character, and evilly disposed toward human beings and other dogs, and accustomed to at...
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The defendant was convicted by a jury of assault with intent to commit rape, and from the judgment which followed this appeal is taken. At 8:30 P.M. on the evening of September 11, 1930, Miss C.E. Ruttinger left a prayer meeting in Riverside, California, and after walking three or four blocks to her home, stopped to do some watering in and about her garden before she entered the house. During the ...
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The defendant appeals from a judgment of conviction based upon two counts in an information, which counts are in the following words and figures, to wit: "Count I. "In the Superior Court of the State of California, in and for the county of Butte, the 28th day of July, 1930. The said Joseph Myrick is accused by the district attorney of Butte county, by this information, ...
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This action was brought by the plaintiff against the defendants to recover upon a certain policy of fire insurance. Judgment was against the plaintiff and appellant and in favor of the defendants and respondents. After judgment a motion for a new trial was made by the plaintiff on the grounds: 1. That the evidence is insufficient to justify the decision of the court; 2. That the decision is agains...
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Plaintiff in error was convicted in the county court of Garfield county of the crime of unlawful possession of intoxicating liquor, and her punishment fixed by the jury at a fine of $500 and six months’ imprisonment in the county jail. The state has filed a motion to dismiss the appeal, from which it appears that after the defendant was convicted she was enlarged upon supersedeas bond; that she...
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The petitioner sought a writ of mandate in the superior court to compel the respondent Buron Fitts as district attorney of Los Angeles County to *Page 111 reinstate petitioner as a deputy district attorney, the respondent Sam J. Chappel, as secretary of the civil service commission of Los Angeles County, to certify his name to the pay-roll as a deputy district attorney, and the respondent Payne a...
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This is an action of claim and delivery. The property involved constitutes all the equipment, furniture and fixtures contained in and pertaining to a certain theater known as the Tujunga Valley Theatre, situate at Tujunga, California, of the stipulated value of $5,000. Judgment was entered in favor of the cross-complainant, George R. Frampton, for the return of said property, or for $5,000, the va...
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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 677 This is an appeal from an order denying defendants' motions for change of place of trial from Shasta County to the city and county of San Francisco, and granting respondents' counter motion to retain the cause in Shasta County. It is agreed that the actio...
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The opinion of the court was delivered by The action was to recover on a fire insurance policy; Judgment was for plaintiff. Defendant appeals. The facts are that the policy was issued by appellant upon a barh, on premises of appellee for $3,000. One of the provisions in the policy was as follows: *578“This entire policy, unless otherwise provided by agreement indorsed thereon or added thereto by t...
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The opinion of the court was delivered by The action was commenced against M. D. Gonder and F. A. Ira upon a note for $400, to secure which F. A. Ira and his wife had given a mortgage upon three lots in Dodge City. F. A. Ira filed a cross petition in which he set up a transaction by which he claimed Gonder was liable to him for the $400. Verdict and judgment were for Ira and against Gonder. Gonde...
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The opinion of the court was delivered by The action was one to procure interpretation of a will. The question was whether a paragraph of the will gave the wife of a brother of the testatrix a share of the devised property equal to the share of each brother and sister of the testatrix. The district court answered the question in the affirmative, and some of those who felt their shares were cut dow...
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The opinion of the court was delivered by This is an appeal from a judgment of the district ...
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The opinion of the court was delivered by This is an original habeas corpus action brought by one now deprived of his liberty by the defendant sheriff, and plaintiff claims a complete discharge by reason of the failure of the district court to take action on his parole for more than two years after granting the same. The plaintiff was convicted of the violation of the prohibitory liquor law on thr...
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The opinion of the court was delivered by The proceeding was one by a trustee under a will to obtain an interpretation of the will, and for directions with respect to courses to be pursued in execution of the trust. The trustee was appointed by the district court, and the proceeding was instituted in the action resulting in the appointment. The defendants in the action were dissatisfied with what ...
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The opinion of the court was delivered by The action was one challenging validity of the organization of a rural high-school district, challenging right of persons to act as officers of the district in respect to issuing bonds, and praying for their removal from office. Judgment was rendered on the petition against plaintiffs, and they appeal. *680Proceedings were instituted to organize a rural hi...
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The opinion of the court was delivered by The defendant in this case appealed from a judgment obtained against her in an action brought by her son on the following instrument: “September 25, 1926. “I hereby agree to pay Nick Greiner $2,000 in cash and this to be a settlement in full on claim he was disinherited by his father. Money to be paid on or before six months from date. (Signed) Maggie Gre...
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The opinion of the court was delivered by The defendant in this case «appeals from the conviction of and sentence for murder in the first degree, assigning two errors: one as to the instructions given, and the other in overruling his motion for a new trial on the ground of newly discovered evidence. The defendant was charged in the information with the willful, deliberate and premeditated killing ...
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The opinion of the court was delivered by This appeal involves the question of alimony and property rights in a divorce action. The trial court granted the husband, on his petition, a divorce upon the grounds of abandonment and gross neglect of duty and decreed the plaintiff all his property and barred the wife from all right or interest therein, but allowed her attorney $180 for expenses and $270...
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The opinion of the court was delivered by This is an action for the partition of farm land. The sole question is, What share of the property has plaintiff? She claims a one-half interest in the property. The trial court found she had a one-fourth interest, and she has appealed. There is no serious controversy over the facts, which may be stated thus: John H. Sanger, at the time of his death in Jun...
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The opinion of the court was delivered by This is an original proceeding in mandamus. Plaintiff, and the requisite number of other persons, owners of real property, liable to taxation therefor, petitioned the governing body of the city to grade, pave and otherwise improve four blocks of one of the city streets. The proceeding is to compel the defendants to proceed with the work. Plaintiff relies o...
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The opinion of the court was delivered by This was an action to recover an excess of bank taxes paid under protest. The facts were these: In 1927 the stock of the Bank of Holyrood, in Ellsworth county, was assessed at the general-property-tax rate of $2.959 per $100 valuation. On that basis the aggregate tax on the stock of the bank was $1,289.24, whereas the proper tax of $0.50 *594per $100 valu...
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The opinion of the court was delivered by This appeal presents a question raised first in the probate court and then, on appeal, in the district court on the final accounting of an executor. The facts found by the trial court, so far as necessary to understand the question presented here, are as follows: On May 27, 1927, Augusta L. Woelk executed her will, by which she made bequests and devises to...
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The opinion of the court was delivered by The action was one to foreclose a mortgage. There was a judgment to that effect. The period of redemption was fixed at six months. Defendants filed a motion for an extension of that period. The motion was denied. Defendants appeal. The facts are that a petition to foreclose a mortgage was filed by appellee and personal service had upon appellant. The petit...
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The opinion of the court was delivered by This was an action of replevin brought by W. F. Young to recover from R. C. Lucas and his wife, Maggie Lucas, the possession of furniture and furnishings of what is called the Orpheum Hotel, of the alleged value of $822.35, in which the defendants prevailed, and plaintiff appeals. The Orpheum Hotel, a furnished rooming house, was leased by Mamie B. Young ...
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'The opinion of the court was delivered by The action was for a commission for procuring a Tenant for property owned by the defendants. The petition of appellee alleged that he was employed by Charles *480E. Kaufman, one of the appellants, to secure a tenant for property upon which Kaufman claimed he owned a leasehold. It alleged an agreement upon the part of appellant to pay a commission of $1,32...
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Dawson, J.: This was an action against certain persons who .had been officers and agents of a corporation now defunct to recover damages for alleged fraud in the sale of certain of that corporation’s assets. The principal facts were these: Prior to December 31, 1927, there was a corporation, the Linwood Oil and Gas Development Company, which had its headquarters in Lawrence. It may be inferred tha...
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The opinion of the court was delivered by The plaintiff was struck and run down by an auto delivery truck driven by defendant’s employee, and brought this action for damages. The defense was a general denial and contributory negligence. , The cause was tried before a jury. Plaintiff’s evidence tended to show that the accident happened at an intersection of streets in Hutchinson. In that city Madis...
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The opinion of the court was delivered by The action was brought to set aside a mortgage on a farm owned by plaintiff. Defendant answered by way of an answer and cross petition praying for a foreclosure of the mortgage. The trial court sustained a demurrer to the evidence offered by plaintiff in support of her petition to cancel, and subsequently foreclosed the mortgage. Plaintiff appeals. The pe...
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The opinion of the court was delivered by This case arises under the workmen’s compensation law. Joseph F. Burgin was an employee of the Western Coal & Mining Company, and both employer and employee were operating under the workmen’s compensation law. An accident which resulted in Burgin’s death occurred on August 12, 1929, in the course of Burgin’s employment. His wife, Yiolet Burgin, and his mo...
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The opinion of the court was delivered by The action was for damages to plaintiff and her automobile caused by collision with a street car operated by defendant. Plaintiff obtained judgment for $2,896.50. Defendant appealed. The facts are that the collision occurred while this appellee was riding in the automobile in question, which was being driven by her husband. Mr. and Mrs. Craig had attended...
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The opinion of the court was delivered by This action was originally brought to obtain a construction of a will. Later the action was broadened into an action of partition. The matter of interpretation of the instrument was first determined and the decision then made was brought to this *553court for a review. The will was made by Mary Nixon, who had seven children, and in it she gave her persona...
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The opinion of the court was delivered by This is an appeal by the defendant railroad company from an award and judgment rendered in the district court in a condemnation proceeding, and in addition to the usual question as to the amount of the award the case in the district court had a preliminary matter concerning the validity of the appeal bond filed by the landowner after the report of the app...
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This is an original action filed in this court by John Cary and the Hartford Accident Indemnity Company, a corporation, to review an award and judgment of the State Industrial Commission, made and entered on the 18th day of August, 1930, in favor of respondent, A.P. Jetton, wherein the Industrial Commission found that A.P. Jetton sustained an accidental injury arising out of and in the course of ...
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This is a proceeding by petitioners, LeFlore County Coal Company, W.J. Echols, W.H. Johnson, and E.F. Maley, to review an award and judgment of the State Industrial Commission made and entered against them on May 30, 1930, in an original action before said Commission, styled J.W. Skipper v. Standard Coal Mining Company, Respondent. On February 23, 1928, said claimant, Skipper, received certain inj...
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This is an original action filed in this court to review a judgment and award of the State Industrial Commission, made and entered on the 14th day of June, 1930, wherein Albert G. Grant was awarded compensation for temporary total disability for a period of ten weeks at the rate of $13.85 per week, and also compensation for 20 per cent. permanent partial loss of the use of the right hand, for a pe...
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This is an original action in this court by petitioners to review an award of the State Industrial Commission, made and entered on the 29d day of May, 1930, in favor of Gable Moore, respondent herein. The Industrial Commission found: First, that respondent Moore received an accidental personal injury arising out of and in the course of his employment, while engaged in a hazardous occupation within...
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This is an appeal from an order of the district court of Cleveland county sustaining a demurrer to the plaintiff's petition in an action wherein plaintiff in error was plaintiff. The plaintiff in error in due time served and filed his brief in full compliance with the rules of this court, but the defendants in error have wholly failed to file any brief or to otherwise appear in this cause on the m...
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The defendant in error, as plaintiff, brought suit upon a promissory note in the amount of $2,000, and eight coupons for interest attached in the amount of $50 each, and for foreclosure of real estate mortgage executed in favor of the state by Minnie B. Lowery and Robert J. Lowery, and for attorney fees in the amount of $200. Subsequent to the commencement of the action the county treasurer of Maj...
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This is an original action filed in this court by petitioners to review an award of the State Industrial Commission, made and entered on the 27th day of June, 1930, in favor of respondent W.M. Coffman. Said award found that on February 17, 1930, respondent Coffman was in the employ of petitioners and engaged in a hazardous occupation subject to and covered by the provisions of the Workmen's Compen...
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Harris commenced this action against Tucker, Galt, and Marsh, to recover damages for breach of an alleged agreement under which it was claimed he was authorized to sell a certain oil and gas mining lease. The trial court sustained a demurrer to plaintiff's evidence and rendered judgment for defendants. Plaintiff appeals, contending, under one assignment, error of the court in sustaining the demurr...
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Mrs. Wood Stanley, the *Page 165 mother of Samuel Norvell Sloan, a minor, instituted a proceeding in the county court of Rogers county against S.C. Vinson, Bess Vinson, and Van R. Sloan. After a hearing was had on the response to the writ issued by that court, that court made its order on the 7th day of October, 1927, denying the prayer of the petition and remanding the minor, Samuel Norvell Sloa...
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This is an appeal from the order of the district court of Seminole county in an action wherein the plaintiff in error was plaintiff. The plaintiff in error ill due time served and filed its brief in full compliance with the rules of this court, but the defendant in error has wholly failed to file any brief or to otherwise appear in this cause in this court upon the merits of the case nor has he of...
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This is an appeal from the judgment of the district court of Okfuskee county rendered in an action wherein plaintiff in error was defendant. Plaintiff *Page 221 in error in due time served and filed its brief in full compliance with the rules of this court, but the defendant in error has failed to file any brief or to otherwise plead the merits of this cause in this court, nor has, he offered any...
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Telee Bussey instituted suit against her husband, Frank Bussey, for divorce, division of property, custody of the minor children, allowance for support of minor children and attorney fees. Her husband filed a cross-petition. After trial upon the merits, the trial court rendered judgment in accordance with prayer of the plaintiff's petition. From that judgment the defendant appealed to this court. ...
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This case presents alleged error from the district court of Pontotoc county. Plaintiff sought reformation of a deed executed by herself and husband in June, 1919, conveying certain lands in Pontotoc county to H.D. Renfrow, contending that at the time of the execution and delivery of the deed same contained a clause reserving to her an undivided one-half of the mineral rights which had been altered...
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This is an appeal from the order of the Court of Tax Review denying the protest of the Oklahoma Pipe Line Company against certain tax levies of Seminole county alleged to be illegal, excessive, and void. The protestant presents the question of the right of the excise board to add ten per cent. to the amount of the appropriation made for highway purposes and to fix the rate of levy on the total nee...
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This proceeding in error brings before us the action of the lower court in sustaining a demurrer to the amended petition of the plaintiff. There had been various motions and amendments filed in the case, but finally the parties apparently wiped out everything else except the amended petition and the demurrer thereto, as is shown on pages 74 and 75 of the case-made. The court below sustained the de...
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This appeal involves a judgment of the district court of Oklahoma county, entered on the 6th day of May, 1929, wherein the plaintiffs in error were plaintiffs, and the defendants in error were defendants. The trial court sustained a demurrer to the petition of plaintiffs in error and dismissed the same at the cost of the plaintiffs, and the plaintiffs have prosecuted this appeal from said order. T...
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In this case the defendant in error sued the plaintiffs in error for damages to her automobile, occasioned by a collision that occurred at the intersection of the paved road leading from Oklahoma City to Norman with the county road between Oklahoma and Cleveland counties. There was damage to the automobile of the plaintiff of considerable amount and also to that of the defendants in considerable a...
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On September 20, 1928, the claimant while working for the respondent in its coal mines hurt his back while lifting one of the cars in the mine and as a result was in bed for 45 days and had to wear a brace for a period of 52 days. On May 8, 1929, the Commission made an award for temporary total disability for a period of 21 weeks and 5 days, amounting to $393, which was paid by the respondent. On ...
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E.R. Stagg was a member of the fire department of the city of Sapulpa. In 1916 he was retired under chapter 244 of the Session Laws of 1913, at which time he was drawing a salary of $100 per month, which entitled him to a pension of $50 per month, and this amount was paid to him to May 25, 1920, at the time of his death. Surviving him was his widow, Mrs. E.R. Stagg, the plaintiff in error herein. ...
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This is an appeal from the district court of Creek county, wherein a judgment was rendered against the city of Sapulpa, plaintiff in error, in favor of Lenora Young, as defendant in error, as damages for personal injuries sustained by her while playing in a public park owned and operated by the city. The action was originally Commenced by Lenora Young, a minor, 14 years of age, by her mother and n...
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This is an original proceeding to review an award of the State Industrial Commission wherein it found that John Wilson, one of the respondents herein, had sustained an accidental personal injury arising out of and in the course of his employment in a hazardous occupation. It further found that by reason of the injuries the respondent, John Wilson, had lost the sight of his left eye and that he was...
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This is an appeal from a judgment of the district court of Carter county Okla., denying the last will and testament of Eva Gill, deceased, to probate, thereby reversing the judgment of the county court of said county in admitting the same to probate. The proceeding was instituted by Paul Mantz filing in said county court a petition for the probate of said last will and testament of said deceased. ...
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This is an original action in this court by petitioners to review an award of the State Industrial Commission made and entered on the 4th day of August, 1930, in favor of J.R. Cox, respondent herein, wherein the Industrial Commission found that, on April 10, 1930, respondent was in the employment of petitioner and engaged in the performance of a hazardous occupation within and covered by the provi...
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It appears from the record in this case that the plaintiff in error was an Osage allottee, and that she had mortgaged the land that was sold in this case under a general execution issued against her to collect the amount of money judgment in the district court of Osage county, wherein the defendant Fred Voils was the plaintiff, and she was the defendant, and that her equity in the land was sold un...
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B.R. Kittredge, the plaintiff in error, as plaintiff, brought this suit against John I. Cary, defendant in error, as defendant. He alleged that he was the owner of a certain 80-acre tract of land, and that the defendant was claiming some interest in it. In his answer the defendant pleaded that on the 20th day of February, 1916, Anna S. Delahunt, as the owner of the land, for a valuable considerati...
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This is an original action filed in this court by petitioner to review an award of the State Industrial Commission, made and entered on the 18th day of April, 1930, in favor of the respondent William A. Crow, where the Industrial Commission found; First. That on December 23, 1928, respondent was in the employment of this petitioner and engaged in the performance of an occupation within and covered...
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This is an original. action in this court wherein petitioners ask to review an award made and entered on the 23rd day of January, 1930, in favor of U. Grant Smith, respondent herein. The Commission's finding is in part as follows: "1. That on and before the 26th day of September, 1927, claimant, U.G. Smith, was in the employment of respondent, Oklahoma Natural Gas Corporation, and engaged in a haz...
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This is an original proceeding to review an award of the State Industrial Commission in favor of the respondent herein. It is contended by the petitioners that: "The employee was not at the time of his injury engaged in a hazardous employment under the Workmen's Compensation Act, and the Commission made no finding to that effect; the record shows that Harbour-Longmire-Pace Company operated a retai...
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This cause is before this court on the petition in error of the Virginia Trust Company, a corporation, as trustee, plaintiff in error, and Ethel P. Burnett, D.R. Burnett, Sapulpa Petroleum Company, a corporation, and J.A. Fulp, as receiver, of the Sapulpa Petroleum Company, a corporation, defendants in error, to which is attached an instrument denominated a case-made. The instrument is not a case-...
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The Stebbins Oil Gasoline Company, hereinafter referred to as plaintiff, instituted suit in the district court of Tulsa county against the Gladys Belle Oil Company and H.E. Clark. Three causes of action were attempted to be stated in the petition. The prayer was for judgment against H.E. Clark on the first and third causes of action and against H.E. Clark and the Gladys Belle Oil Company, jointly...
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This is an appeal from the district court of Pittsburg county. The plaintiff, Wilson Gunter, defendant in error, filed his petition in the district court of said county against The Ward Way, Incorporated, plaintiff in error, for the recovery of damages for personal injuries, and also for damages to his Ford automobile, in a collision between said Ford automobile, driven by said plaintiff, with the...
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Yousta Sarber and Peter Sarber, minors, aged 15 and 13 years respectively, by their mother as next friend, commenced this action in the district court of Seminole county in the year 1927, against Forest Anderson, the Marland Oil Company, and others, to recover an undivided two-thirds interest in certain lands located in that county, which lands were alleged to have been allotted to Billy Sarber, d...
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Ida was a male citizen of the Seminole Nation and died in 1905, intestate, without issue and was never married, and was the owner of the land allotted to him at the time of his death. Samsochee was his father and Muttee was Samsochee's father and the paternal grandfather of the intestate. Co-ho-kee was Sanisochee's mother and Ida's paternal grandmother. He was survived by three sisters of Muttee, ...
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R. Kay Mathews sued Coal county for the sum of $166.66, the amount stated in his salary claim, as court clerk of Coal county for the month of June, 1930. The board of county commissioners had allowed the claim in the amount of $112.50, but rejected the balance. The cause was tried upon an agreed statement of fact which, after reciting the official position held by plaintiff and the rejection in pa...
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School district No. 56, of Payne county, is an independent district. School district No. 65, of said county, is a common school district. The districts adjoin each other. On June 17, 1929, a petition purporting to be signed by 37 qualified electors of the common school district was presented to the county superintendent. It was styled "Petition to County Superintendent to Change School District Bo...
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Zaneis consolidated school district No. 72, Carter county, a consolidated school district, included in its estimate for *Page 2 the fiscal year commencing July 1, 1928, the sum of $15,560 for "Replacement of, or new vehicles" for transportation of pupils. On the 28th day of August, 1928, the excise board made the appropriations for the school district and fixed the rate of levy for the school dis...
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Plaintiff in error, Ben Wilson, here designated the defendant, was convicted of the larceny of a cashier's check of the amount of $165. The jury fixed his punishment at confinement in the penitentiary for a period of nine months. The evidence shows that the prosecuting witness was on the point of leaving Durant, in Bryan county, on the train at about midnight on April 11, 1924, and that he had a l...
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I cannot agree with the majority opinion. In order to arrive at the intent of the Legislature in enacting the proviso to section 7325, C. O. S. 1921, I deem it advisable to discuss the history of the legislation under consideration. Section 14, art. 4, c. 246, Session Laws 1915, provides that: "The power and jurisdiction of the Commission over each case shall be continuing, and it may, from time t...
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This is a proceeding in error from the district court of Kay county, Okla.; Claude Duval, judge. The case originated when the defendant in error, desiring to find some way to put his name upon the equipment he was handling, which was largely supplies for oil purposes, wrote to the plaintiff corporation about the matter and was referred to their agent in Seattle, Wash., Mr. P. J. Standish. He ap...
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The plaintiff in error, hereinafter called defendant, was convicted in the district court of Stephens county on a charge of rape in the first degree and his punishment fixed at death. Defendant was jointly charged with his brother, A. Y. Hembree. A severance was taken and the state elected to try this defendant first. The offense was charged to have been committed on March 9, 1930. Judgment in thi...
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The plaintiff in error, hereinafter called the defendant, was convicted in the county court of Hughes county, Okla., of the crime of assault and battery on the person of Roxie Williams, and was sentenced to pay a fine of $100 and costs, and confinement in the county jail for a period of 30 days, from which judgment the defendant has appealed to this court. The defendant's appeal was filed in this ...
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The plaintiff in error, hereinafter called defendant, was convicted in the district court of Stephens county on a charge of rape in the first degree and his punishment fixed at death. Defendant was jointly charged with his brother, A. T. Hembree. A severance was taken and the state elected to try this defendant first. The offense was charged to have been committed on March 9, 1930. Judgment in thi...
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The plaintiff in error, hereinafter called the defendant, was convicted in the county court of Hughes county, Okla., of the crime of assault and battery on the person of Roxie Williams, and was sentenced to pay a fine of flOO and costs, and confinement in the county jail for a period of 30 days, from which judgment the defendant has appealed to this court. The defendant’s appeal was filed in this ...
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The plaintiff in error, hereinafter referred to as the defendant, was charged by information with maintaining and operating a certain two-story frame building wherein intoxicating liquor, to wit, whisky, was kept, bartered, sold, and given away and otherwise furnished to divers persons unknown, to the common nuisance of the public; was tried and convicted; and sentenced to pay a fine of $100 and t...
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The defendant, Carl Stanley, hereinafter referred to as the defendant, was jointly informed against with Jim Smith and Ray Phillips, charged with the crime of robbery of one John S. Strong, by means of a dangerous weapon, was tried separately, convicted, and sentenced to serve a term in the penitentiary of five years. Record was perfected, and the case appealed to this court. The record in this ca...
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The plaintiff in error, hereinafter called d ^endant, was convicted in the county court of Lin- ^ coin /iinty on a charge of having the unlawful possession i of vhisky, and was sentenced to pay a fine of f 100 and to serve 60 days in the county jail. The record discloses that at the time charged certain officers with a search warrant went to the residence of defendant and made a search, finding...
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Plaintiff in error, hereinafter called defendant, was convicted in the district court of Payne county of the crime of embezzlement, and his punishment fixed by the jury at imprisonment in the state penitentiary for two years. On the 25th day of January, 1930, this court handed down an opinion (48 Okla. Cr. 250, 290 P. 1113) modifying and affirming the case, and in due time thereafter a petition fo...
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Tbe plaintiff in error, hereinafter referred to as defendant, was convicted of selling one pint of whisky to one W. L. Wormington, and was sentenced to pay a fine of $50 and to imprisonment in the county jail for 60 days, from which judgment the defendant has appealed. W. L. Wormington, the party to whom it is alleged the defendant sold the pint of whisky, was called as a witness on behalf of t...
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The plaintiff in error, hereinafter called defendant, was convicted in the district court of Noble county of assault with intent to extort and was sentenced to serve a term of three years in the state penitentiary. The information charges defendant assaulted one W. T. Donahoe by pointing a pistol at him with the intent to *Page 60 extort money. "Extortion" is defined by section 2133; an assault w...
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Plaintiff in error, hereinafter called defendant, was convicted in the district court of Kiowa county of the crime of manslaughter in the first degree, and his punishment fixed by the jury at imprisonment in the state penitentiary for a term of four years. The evidence of the state was that the defendant and his son Coy were driving upon the highway and came to a place where two cars were parked a...
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This is an appeal by the state from a ruling of the county court of Pawnee county holding that the statute under which the defendant was informed against is unconstitutional, for the reason that the charge brought against the defendant is not sufficiently stated in the title of the act. The defendant, by information, was charged with willfully, knowingly, and unlawfully purchasing certain articles...
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The plaintiff in error, hereinafter called defendant, was convicted in the district court of Marshall county of manslaughter in the first degree and was sentenced to serve a term of 25 years in the state penitentiary. The record discloses that at the time charged defendant shot and killed one Frank Miller. Defendant was a police officer of several years' experience. Miller was a *Page 113 young m...
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The plaintiff in error, hereinafter called defendant, was convicted in the district court of Oklahoma county on a charge of murder and sentenced to life imprisonment. The record discloses a state of facts about as follows: Defendant, with George Lampos and Pete Amos, two Greeks, drove from Miami, Fla., to Oklahoma in a Rickenbacken car which belonged to Pete Amos with a load of whisky. They arrive...
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The plaintiff in error, hereinafter called defendant, was convicted in the county court of Kiowa county on a charge of transporting whisky, and was sentenced to pay a fine of $50 and to' serve 30 days in the county jail. The- record discloses that at the time charged an officer with a search warrant searched the person of defendant. The defendant was observed by the officer walking across the s...
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The plaintiff in error, hereinafter referred to as the defendant, was charged by information with maintaining a public nuisance, by unlawfully, willfully, and knowingly keeping malt, spirituous and fermented liquors, capable of being used as a beverage, and containing more than one-half of 1 per cent. alcohol measured by volume, to wit, beer and whisky, were received, kept, and possessed by him to...
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Plaintiff in error, hereinafter called defendant, was convicted in the county court of Payne county upon a charge of possession of a still for the purpose of manufacturing whisky, and his punishment fixed by the jury at a fine of $150 and imprisonment in the county jail for a period of 60 days. The defendant has appealed by transcript. The charging part of the information is as follows: *Page 81 ...
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Plaintiff in error, hereinafter called defendant, was convicted in the county court of Dewey county of the crime of transportation of intoxicating liquor, and his punishment fixed by the court at a fine of $150 and imprisonment in the county jail for 30 days. The only evidence offered by the state was given by Marvin Compton, deputy sheriff of Dewey county. He testified that he saw the defendant a...
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The plaintiffs in error, hereinafter called defendants, were convicted in the county court of Beckham county on a charge of having the unlawful possession of whisky; defendant Nichols was sentenced to' pay a fine of $50 and. to serve 30 days in the county jail; defendant Hayden was sentenced to pay a fine of $100 and to serve 30 days in the county jail. The record discloses that defendants were...
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The plaintiff in error, hereinafter called the defendant, and one C. F. Taylor, were charged jointly with the possession of intoxicating liquor, to wit, seven pints of beer, with the unlawful intent to barter, sell, give away, and otherwise dispose of the same to others. The defendant Frank Lofton was convicted and sentenced to pay a fine of |50 and be confined in the county jail for 30 days. Fro...
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The plaintiffs in error, for convenience referred to as the defendants, were convicted *89 in the county court of Garfield county of petit larceny; each was sentenced to pay a fine of $100 and costs, and be imprisoned in the county jail for a term of 30 days1, from which judgment the defendants have appealed. The testimony on behalf of the state shows that Arthur Anderson was driving along th...
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The plaintiff in error, hereinafter called defendant, was convicted in the district court of Garfield county on a charge of murder and his punishment fixed at life imprisonment. The record discloses that at the time charged defendant shot and killed his wife, Louise Manchester. Defendant at the time of the homicide was about 30 years of age *102 and bad been married to deceased for about a ye...
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It appearing to the court from the records in the pardon and parole office that a parole was *100 granted the plaintiff in error on January 10, 1981, it is therefore ordered and adjudged that the appeal of plaintiff in error be dismissed. ...
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Plaintiff in error, hereinafter called defendant, was convicted in the county court of Washita county of the crime of possession of intoxicating liquor, to wit, about one gallon of wine, and his punishment fixed by the court at a fine of $250 and imprisonment in the county jail for 60 days. Defendant complains of numerous errors, only one of which needs to be considered by this court in determinin...
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The plaintiff in error, hereinafter called defendant, was convicted in the district court of Tulsa county on a charge of murder and was sentenced to life imprisonment in the penitentiary. The case was tried the latter part of September and first part of October, 1929. The appeal was lodged in this court April 2, 1930. No briefs in support of the appeal have been filed, and no appearance for oral a...
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Plaintiff in error, hereinafter called defendant, was convicted in the district court of Kiowa county of the crime of manslaughter in the first degree, and his punishment fixed by the court at imprisonment in the state penitentiary for a period of 20 years. The evidence of the state was that the deceased, Lovard Godfrey, who was a son-in-law of the defendant, had been separated from his wife; that...
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This is an original proceeding in habeas corpus. Petitioner alleges that he is unlawfully restrained by the warden of the penitentiary at McAlester; that, with others, in the district court of Craig county, he was charged with conjoint robbery alleged to have been committed July 19, 1923; that he was convicted, and in November, 1923, he was sentenced to serve a term of 15 years; that at the date o...
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Plaintiffs in error, hereinafter called defendants, were convicted in the county court of Woods county of the crime of unlawful possession of intoxicating liquor, and their punishment fixed by the jury at a fine of $50 each and imprisonment of each in the county jail for a period of 30 days. The evidence of the state was that the officers had located a 50-gallon barrel of beer mash in a catalpa...
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The plaintiff in error, hereinafter referred to as the defendant, was convicted on a charge of transporting, and was sentenced to pay a fine of $300 and costs, and be confined in the county jail for 60 days. From which judgment and sentence the defendant has appealed. *Page 123 The testimony on behalf of the state shows that Ezra Burnett was city marshal of Seiling; he testified, in substance, th...
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The plaintiff in error, hereinafter called defendant, was convicted in the district court of Delaware county of manslaughter in the first degree, and his punishment fixed at 20 years in the penitentiary. The record discloses that defendant was a son-in-law of Dan Thurman, a resident of the village of Oakes. On the day before the homicide, defendant’s wife, because of some trouble between her an...
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This is an action by the Southern Pacific Company against Pima county and J.W. Buchanan, treasurer and ex-officio tax collector of said county, to recover some school taxes paid to the treasurer under protest. On June 5, 1928, common school district No. 1 of Tucson and high school district No. 1 of Tucson were by an order of the board of supervisors of Pima county enlarged to take in additional te...
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THIS is an action by our state board of pharmacy against the defendant, Hallett, an unlicensed druggist, to recover the penalty prescribed by our general pharmacy act for selling poisons in violation of its provisions. The defendant filed a motion to strike from the files the complaint and the appearance of Ab H. Romans, district attorney, and his deputy, and D. F. Clifford, an attorney who purpor...
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THIS matter is before us on writ of error and application for supersedeas. It involves a dispute over certain proceeds of shipments from a mine owned by Le Clair Mines Company, hereinafter called the lessor. The lessor disclaims any interest in the fund in question. This fund, which amounts to the sum of $324.76, is claimed on the one hand by Mason and Burns, hereinafter called the lessees, and on...
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Appellants were convicted of the offense of unlawful possession of intoxicating liquor other than alcohol for the purpose of unlawful sale. They have appealed from the judgment and sentence pronounced on the verdict. The jury was warranted in finding that the evidence established these facts: For many years prior to and on April 5, 1930, appellants were husband and wife, *Page 252 residing at 141...
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This is an appeal from a conviction of unlawful possession of intoxicating liquor with intent to sell, and also of one prior violation óf the state liquor laws. The only assignment of error is that: “The court' committed error in unduly limiting the cross-examination of the witnesses for the purpose of showing bias and prejudice on the part of the witness Miller. ’ ’ The main witnesses for ...
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The parties to this controversy appeared in this court in the case of Matthews v. Saulsberry, 153 Wash. 155, 279 P. 400, the same being cause No. 21857, and reference should be made thereto and the opinion there should be read in connection with the opinion here. The trial court in cause No. 21857, supra, entered its findings and judgment on December 17, 1928, adjudicating that on December 1, 1928...
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The defendant was, by information, charged with the crime of grand larceny, to which he pleaded guilty. At the time of the plea, the court orally announced the sentence, and subsequently, August 7, 1930, a formal judgment was signed and entered. On or about September 5, 1930, the defendant petitioned the court to vacate the judgment and sentence, claiming that, at the time he entered the plea of g...
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TOLMAN, C.J., dissents. On April 28, 1930, the prosecuting attorney of Grays Harbor county filed an information in the superior court of that county, charging the respondent, Lester, with the commission of a crime. On the same day, a warrant was issued for his arrest, and was placed in the hands of the sheriff of the county for service. The sheriff, on July 19, 1930, made return to the effect that...
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This action was brought by the plaintiff real estate broker to recover, under its contract with the defendant, a commission for obtaining a purchaser for certain real estate owned by the defendant. The trial of the cause to the court resulted in findings and judgment in favor of the plaintiff. The defendant appealed. The written commission agreement of April 24,1928, under which the appellant w...
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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, to which they pleaded not guilty. At the conclusion of the state's evidence, the defendants Dick Talo and Fred Elo moved for a directed verdict, which motion was overruled. The defendants rested without testifying or offering any evidence, and a verdict ...
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The appellant, C. McNeil, together with Henry Petri, Harley Gilfilen, and William E. *Page 222 Worsham, was charged by an information filed in the superior court of King county with the crime of robbery. The information, omitting its formal parts, reads as follows: "They said Henry Petri and Harley Gilfilen, and each of them, in the County of King, State of Washington, on or about the 31st day of...
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This action was brought in the superior court for Walla Walla county by the seller of a quantity of onions to recover, from the surety on the bond of the buyer, the difference between the original *Page 167 purchase price and the amount realized from the resale of the onions upon their rejection by the buyer. The trial of the cause to the court resulted in findings and judgment against the surety...
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This action was brought to recover for the death of a child, the daughter of the plaintiff. The cause was tried to the court and a jury, and a verdict was returned in favor of the plaintiff and against the defendant Carl Mattson in the total sum of $3,650, and in favor of the other two defendants. The plaintiff moved for a new trial as to the defendants O.O. Hardgrove and the school district. This...
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This action was brought to recover the earnest money paid upon a contract for the purchase of real estate. The trial was to the court without a jury, and resulted in findings of fact from which the court concluded that no recovery could be had. Judgment *Page 202 was entered dismissing the action, from which the plaintiff appeals. April 2, 1929, and for some time prior thereto, the respondents A....
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Plaintiff brought this action to recover damages for personal injuries. He prayed for judgment in the sum of ten thousand dollars. The case was tried to the court and jury, and resulted in a verdict in his favor in the sum of one thousand dollars. The verdict was filed of record September 9, 1930. Thereafter, defendant interposed a motion for judgment notwithstanding the verdict, or, in the altern...
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Relators instituted this action by filing a complaint naming as defendants Charles R. Maybury, director of licenses, Ewing D. Colvin, as prosecuting attorney for King county, and John B. Wright, as justice of the peace for Seattle precinct. It was alleged that relator T. Irving Potter was the owner of letters patent granted by the United States of America, covering improvements in refrigerating ma...
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Plaintiff's separate funds, which should have been credited to the joint account of the plaintiff and her husband with the defendant bank, were placed *Page 160 in the husband's individual account with that bank. On two causes of action, the plaintiff sought to recover from the defendant bank for the loss she claimed she sustained by her husband's withdrawal of those funds from his individual acc...
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OPINION OF THE COURT Action was commenced by Ocariz Frampton, widow of David Frampton, as preferred beneficiary under section 36 – 101, 1929 Comp, (N.M. Stats. Anno. 1915, § 1820). At the conclusion of plaintiff's case, defendant moved for an instructed verdict upon ten distinct grounds. The motion was sustained generally, the court stating: "I have listened very carefull...
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Apparently plaintiff contends that defendant was ineligible at the time she was designated as a beneficiary and that on that account she cannot recover. For the sake of argument we will assume that defendant cannot recover if it is shown *Page 245 that at the time stated she was ineligible. The case of plaintiff as stated in her amended complaint is admitted. Defendant made proof of the allegatio...
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This is an action in claim and delivery to recover possession of an automobile. There is no dispute as to the material facts. James Mizer, an infant under the age of eighteen years, owning an automobile, made a deal with the Hitchcock Motor Company, pursuant to which he delivered his used car as a down payment and agreed to pay an additional amount for a new car, executing a written conditional sa...
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The complaint alleges and the affidavits in support of the temporary injunction are of similar effect, and the testimony of the witness for the plaintiffs on the hearing in regard to the temporary injunction, shows undenied and undisputed except by defendants' answer, which merely generally denies the allegations of the complaint, that the territory in question is underlaid at a depth of from two ...
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Respondent, guardian of a patient confined in a state insane asylum, sued by appellant under C S., sec. 1190, amended 1921 Sess. Laws, p. 388, successfully demurred, in the trial court, to such action on the ground that said statute is in conflict with this portion of sec. 1, art. 10, of the Constitution: "Institutions . . . . for the benefit of the insane . . . . shall be established and supporte...
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Appellant brought this action to recover from respondent, the owner of a canal and water right furnishing water to certain lands in South Boise, $436 paid under protest as rental for carrying its water through the Ridenbaugh-Rossi Mill Ditch, for the year 1928 and a like sum for the same service in the year 1929. The complaint also prayed that respondent be enjoined from interfering with the diver...
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Prior to 1922, the Crane Creek and Sunnyside Irrigation Districts were separately organized, and in 1923 were consolidated as the Washington County Irrigation District. Appellant claims title to certain lands in each original district by delinquent district assessment foreclosure proceedings. Two suits to quiet title brought herein involving the tracts in the respective districts, were consolidate...
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Petition for a writ of mandate. On May 24, 1930, there was docketed in the clerk's office of Twin Falls county a judgment in favor of W.C. Pond, petitioner herein, and against one Carl L. DeLong and the U.S. Fidelity Guaranty Company for the sum of $1891.70 and costs. The judgment having become final, and DeLong having "taken bankruptcy," a writ of execution was duly issued directed to the sherif...
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The plaintiff brought this action in the year 1928 to secure a determination of the right to the use of water arising on land owned by him and to secure a judgment of the court enjoining and restraining the defendants from interfering with his use thereof. The defendants deny that plaintiff has any right to the use of the water and seek similar injunctive relief against the plaintiff. Judgment was...
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This case was originally commenced in the district court of Oklahoma county by the board of county commissioners of Lincoln county, Okla., against L.H. Wentz, L.C. Hutson, and S.C. Boswell, as members of the State Highway Commission of Oklahoma, J.E. McDonald, as secretary of said Commission, and John F. Rightmire, as acting state highway engineer. Thereafter certain other parties were by leave of...
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*409 *408 Ramigio Robles was killed by accident in the course of his employment by the Southern Pacific Company at Lucin, *409 Utah, on October 4, 1928. His mother, the plaintiff herein, a resident of Mexico, claiming to have been dependent upon her deceased son for her support, applied to the Industrial Commission for compensation on account of his accidental death. Her application was den...
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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 585 THE COURT. Action to quiet title. Plaintiff, as administrator with the will annexed to the estate of Patrick J. Lyons, deceased, sought to quiet title to certain described property consisting of sixty-eight acres located in the San Joaquin Valley. Patrick...
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This is an appeal by defendant from a judgment of the Superior Court of Los Angeles County, imposing sentence of death after conviction of murder in the first degree, and from an order denying his motion for a new trial. On July 14, 1930, the defendant came to the courtroom of Judge Frank C. Collier. A civil trial was then in progress, in which Motley H. Flint, the deceased, was a witness. At the ...
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THE COURT. This appeal is taken by plaintiff, as administrator, from a judgment rendered in favor of defendants in an action praying for the cancellation and rescission of a written contract entered into by said intestate and defendant for the exchange of real and personal properties owned, respectively, by plaintiff's intestate, Lawrence J. Gunther, and defendant Dr. Ernest E. Thompson. The prope...
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THE COURT. A hearing was granted in this cause after decision by the District Court of Appeal (First District, Division Two) [287 P. 560, 561]. After further consideration of all of the issues involved we adopt the following portions of the opinion of the District Court of Appeal, of which Mr. Presiding Justice Nourse was the author, as the opinion pro tanto of this court: "This is an original pro...
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This appeal involves a controversy between respondent and appellant as to the first and superior right of said parties herein to the use of the waters of the East Fork of Stuart's Fork of the Trinity River and Strope Creek, respectively, which are of first importance to conducting and carrying on hydraulic mining operations. Strope Creek is a tributary of the East Fork of Stuart's Fork of the Trin...
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THE COURT. An application for a writ of habeas corpus. The petitioner is charged by a complaint filed in the Municipal Court of the City and County of San Francisco with a misdemeanor, to wit: vagrancy.[1] The form of the complaint is not questioned, but section 647 of the Penal Code defining vagrancy, by its terms, is not operative against a "California Indian", and it is alleged in the petition ...
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The defendant had judgment in the trial court, and from this judgment the plaintiff appeals. The judgment went in favor of the defendant by reason of his plea of res judicata. The complainant in this action seeks judgment against the defendant for and on account of an assigned claim from L.A. Dunning to the plaintiff, wherein and whereby it is claimed that the defendant was indebted to the plainti...
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This is an action for damages for fraud and misrepresentation in the sale of certain real property. *Page 335 The defendant, C.L. Peck, owned a building in Los Angeles, various portions of which had been leased to different persons for shops, stores, offices and a public garage. In October, 1926, Peck gave to a real estate agent named Canon, a written "exclusive option to buy or sell" the propert...
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The defendants were in the business of purchasing fresh grapes in the San Joaquin Valley and shipping the same to and selling them in various eastern markets. It is an admitted fact that shippers of such grapes frequently suffered loss and damage by reason of decay and mold of the grapes, when shipped in ordinary refrigerator-cars. In September, 1927, the defendants entered into two contracts with...
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Respondents brought this action in the court below to recover from appellant the value of household furniture, family stores and provisions and personal effects which were destroyed by fire while being transported in trucks by appellant from the city of Bakersfield to the city of Hollywood, California. The complaint contains three separate causes of action. The first is based upon an express contr...
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Respondent William J. Garner, administrator, commenced an action in respondent court against Mary Tipton, A. V. Tipton and others, petitioner not being a party thereto. The action was for claim and delivery and involved a certain automobile. Upon due demand respondent Traeger, who is a sheriff, took the car into his possession pursuant to the terms of section 511 of the Code of Civil Procedure, w...
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THE COURT. [1] Writ denied on the ground that the order complained of was one within the discretion of the court to make. (11 Cal. Jur., p. 392.) *Page 296 ...
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Action to recover damages for fraud in the exchange of certain parcels of real property. Plaintiff and appellant alleged that she was the owner of certain flats located on Leavenworth Street in San Francisco which she agreed to exchange for an apartment house located on Sacramento Street in the same city upon the following terms: Said flats to go in at a valuation of $16,000, subject to a mortg...
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Appellant was convicted of the crime of failing, without lawful excuse, to furnish necessary support for his minor child and was sentenced to be punished therefor by imprisonment in the county jail for a term of two years and to pay a fine of $1,000. He appeals from the judgment. During the course of the trial it was admitted by the appellant that he had not, during the time stated in the informat...
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THE COURT. [1] The defendant was convicted in the Superior Court of Stanislaus County of a felony, to wit: Violating "An Act to Regulate the Sale and Use of Poisons in the State of California and Providing a Penalty for the Violation Thereof." (Stats. 1907, p. 124.) The transcript on appeal was filed in this court January 17, 1931. No brief has been filed in behalf of appellant. The cause was regu...
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This is an action in unlawful detainer to recover possession of certain real property leased by plaintiffs to defendants for a term of years. The written instrument of lease contained covenants by the lessees that they would not commit any waste on the premises and that they would not, without the written consent of the lessor, sublet the leased premises or any part thereof. At the conclusion of t...
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Action to recover the sum of $478.25 as commissions for the sale of certain personal property. The answer denied the indebtedness and alleged a set-off and counterclaim of $390. The court found for plaintiff and against the counterclaim and entered judgment for plaintiff in the full amount prayed for. Motion for new trial was made and denied, but the judgment was modified by changing the amount fr...
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THE COURT. Application for writ of habeas corpus. The record shows that petitioner was ordered to pay certain sums of money in a divorce action. Having failed to comply with the order, he was commanded to show cause why he should not be punished for contempt. On the hearing he was adjudged guilty.[1] It is here claimed that no testimony was taken as to the ability of petitioner to comply with the ...
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This is an appeal from a judgment for the plaintiff rendered upon the verdict of a jury for damages for personal injuries sustained in the course of his employment as a brakeman. The action was maintained under the federal Employers' Liability Act (45 U.S.C.A., secs. 51-59). The defendant owns and operates an interstate railroad system extending into California. Among its properties is a freight d...
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Two actions were brought in the Superior Court of Los Angeles County, praying that the plaintiffs' title to certain shares in a common-law trust be quieted as against the trustees thereof; judgments were rendered in favor of the plaintiffs, and the defendants appealed. A common-law trust, designating F.L. Stineman, Charles Paige, L.H. Hendricks, F.W. Kasl, and S.F. Woody, as trustees, was created ...
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Appeal from a judgment against the surety on a bail bond. The bail bond was furnished in the municipal court of the city of Los Angeles in a prosecution for a misdemeanor. The defendant failed to appear for trial and the bail bond was ordered forfeited. [1] Appellant contends that under section 1043 of the Penal Code the trial for a misdemeanor may be had in the absence of the defendant and hence ...
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It seems proper to direct attention at the outset to the incorrectness of the title of this appeal in order that our opinion may not be misread and misapplied. The plaintiff commenced an action against the defendants named in the caption, alleging that the corporate defendant B. Nicoll Co. had become indebted to her in the sum of $1338.80 for general hauling, which sum it had not paid either in w...
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Petition for writ of habeas corpus. Petitioner claims that he is unlawfully detained of his liberty at San Quentin state prison. It appears from tlie petition that petitioner is held by virtue of a commitment issued out of the Superior Court in and for the County of Alameda pursuant to a judgment rendered upon a plea of “guilty” to a charge of grand larceny. The board of prison directors determ...
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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 55 Since the submission of this cause Freda H. Benner, one of the plaintiffs, has died and Anson Bilger, as administrator of the estate of said Freda H. Benner, deceased, has been substituted as a party to this action. W.H. Hooper, one of the defendants in th...
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Plaintiff brought this action to recover damages for injuries alleged to have been sustained by certain livestock of his shipped over the lines of defendant from Gordon, California, to Hynes, California. The case was tried before a jury, which returned a verdict in favor of the plaintiff for the sum of $1250 and from the judgment entered thereon the defendant appealed. The complaint alleges and th...
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THE COURT. The plaintiff recovered judgment against the defendant as executor of the last will and testament of the deceased wife for $10,384.54, and defendant appeals from the judgment and the order denying defendant's motion for a new trial. Plaintiff and his deceased wife first met at Greenville, Mississippi, in the month of December, 1910, and afterward moved to California. Plaintiff is a barb...
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This is an appeal from a judgment in favor of the plaintiff and against the defendant. This action was upon an employment contract evidenced by the following document: "Mr. J.B. Redd, "7342 Jasmine Avenue, "Palms, California. "Dear Sir: "Confirming our conversation of Tuesday, February 19th, 1924, regarding your employment commencing March 15th, 1924: "1 – For and in consideration of your undivide...
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This is an appeal from an order granting a new trial after judgment by default had been rendered against the respondent. A motion to dismiss the appeal was also made on the ground of a defective notice. The plaintiff brought this action for damages for personal injuries alleged to have been sustained while riding as a passenger in an autostage owned and operated by the defendants. The suit was bro...
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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 [EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 79 The plaintiff, a land owner and taxpayer within Reclamation District No. 1001, brought this action on behalf of ...
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Plaintiff sued to quiet title to a leasehold interest for the exclusive right to drill, develop and remove petroleum, natural gas, asphaltum and other kindred substances from certain real property. The cause was tried before the court, which made findings and judgment in favor of the plaintiff from which the defendants appeal upon typewritten transcripts. The complaint pleaded plaintiff's leasehol...
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Defendant was convicted upon a charge of violating the provisions of section 288 of the Penal Code by committing a lewd and lascivious act upon the person of a little girl. He appeals from the judgment and from an order of the trial court denying his motion for a new trial. The alleged victim of appellant was five years of age on April 30th, it was charged in the information that appellant committ...
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The opinion of the court was delivered by The action was brought to collect the amount of money which defendant had agreed to pay plaintiff in case defendant should be awarded the contract to build a certain schoolhouse. A demurrer to the petition was sustained. Plaintiff appeals. The facts are that defendant entered into a contract with several other contractors who were about to bid for the cont...
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The opinion of the court was delivered by An information charged that the appellant, on a day named, and in Mitchell county, “did keep and have in his possession, and did permit another to keep and have and use on a premises owned and controlled by him, . . . intoxicating liquor . . .” He was found guilty of having intoxicating liquor in his possession and has appealed. Defendant filed a motion to...
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The opinion of the court was delivered by This is an action for judgment on nine promissory notes of $50 each and to foreclose a chattel mortgage on an engine and sawmill given to secure their payment. The answer admitted the execution of the notes and mortgage, but alleged they were given as a part consideration for an engine and sawmill purchased by defendant on a written order from plaintiff t...
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The opinion of the court was delivered by This was an amicable suit for specific performance-of a contract for the conveyance of two ten-acre tracts of land and. for the assignment of a gas-and-oil lease on a quarter section. Plaintiff had agreed to sell and defendant agreed to buy, and it. was also agreed that plaintiff’s title need not be strictly merchantable, but must be good enough to pass mu...
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The opinion of the court was delivered by These were actions to reco'ver on hail insurance policies. Plaintiffs prevailed, and the insurance company appeals. The contentions of the insurance company are the same in each *487case, except that one question is involved in the Light case which is not involved in the Cowan case. Therefore, decision of the Light case will dispose of both. On June 22,19...
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The opinion of the court was delivered by The Federal Trust Company brought this action to foreclose a mortgage given to secure a debt of $5,000 upon a tract of land. The mortgage had been executed by Rolland F. Ireland, in whose name the legal title stood, and it was made subject to a prior mortgage of $50,000, given to another party. John W. Baxter, alleged to be the real owner of the land, was...
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The opinion of the court was delivered by The action was one for damages for personal injuries to plaintiff caused by defendant’s negligence. Plaintiff prevailed, and defendant appeals. This is a second appeal. The general nature of the controversy is sufficiently disclosed in the former opinion (Darbe v. Crystal Ice & Fuel Co., 129 Kan. 727, 284 Pac. 596). At the first trial, two grounds of negl...
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The opinion of the court was delivered by This was an action for mandatory injunction to compel the board of county commissioners of Kingman county and the highway commissioners of Union and Ninnescah townships in that county to repair a mile of road and maintain it in passable condition. There was judgment partly for plaintiff and partly for defendants. Subsequently the plaintiff filed an affidav...
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The opinion of the court was delivered by This is an appeal by an administrator from an order of the district court refusing to revive the award of compen*657sation in the name of the administrator since the death of the plaintiff, the injured workman, and before the expiration of the period during which weekly payments were to be made by the defendant to the plaintiff for permanent partial disab...
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The action was brought to recover on four policies of fire insurance. Defendant demurred to the evidence of plaintiff. This demurrer was overruled. Defendant offered.no evidence. The court instructed the jury to find for plaintiff and gave judgment accordingly. Defendant appealed. The allegations of the petition were, in substance, that plaintiff *540had taken out four policies of insurance with d...
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The opinion of the court was delivered by The action was one for damages for injuries resulting from collision of plaintiff’s automobile with defendant’s truck. A demurrer to the petition was sustained, and plaintiff appeals. The petition alleged that on a dark night defendant’s driver was driving the truck northward on highway U. S. 54; that at a place five or six miles south of El Dorado the dr...
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The opinion of the court was delivered by Appellant was found guilty, on twenty-four counts, of permitting and conniving at the receipt of deposits in an insolvent bank, knowing the same to be insolvent, and on one count of making a false report to th'e bank commissioner. At the former hearing of his appeal, reported in 131 Kan. 36, 289 Pac. 483, the judgment of the court below was reversed for a...
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The opinion of the court was delivered by This action was brought by the Towne Manufacturing Company to recover damages from the Allvine Dairy Company for the wrongful attachment of plaintiff’s property. The judgment was given in favor of plaintiff for $224, and defendant appeals. There is a contention that defendant was not permitted to have a fair trial of the case. The case had been continued ...
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This case involves the validity of a contract made between Sarah Maude Crow and her sister, Anna Floss Simon, providing for the care, nursing and proper maintenance of Mrs. Crow as long as she might live, and also including services previously rendered by Mrs. Simon for Mrs. Crow. For all this service Mrs. Simon was to receive $3,000. A note for that amount was executed by Mrs. Crow in favor of Mr...
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The opinion of the court was delivered by This action was brought in the district court of Shawnee county against the board of county commissioners of Neosho county and the state highway commission on a balance claimed to be due plaintiff under a contract entered into April 1, 1926, between plaintiff and the board of county commissioners of Neosho county for the grading and hard surfacing of a por...
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(dissenting in part): In view of the fact that the workman has been employed since his injury at wages as high or higher than he received prior to the injury I cannot give my consent to that part of the award of compensation for permanent partial disability. As to the other portions of the award my views accord with those expressed in the opinion....
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*573The opinion of the court was delivered by This is an original proceeding in mandamus brought by R. C. Sharer in his individual capacity against the Kansas soldiers’ compensation board to compel the board to mail the compensation warrants already issued for one hundred and fourteen World War veterans to the address stated in their applications. The alternative writ sets out that the applicatio...
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The opinion of the court was delivered by This action is for a recovery by a salesman for defendant company, at its bulk oil station at Smith Center, Kan., of rebates amounting to $692.45 with interest in accordance with an oral contract alleged by the plaintiff to have been made with a representative of the defendant company. The defendant appeals from a verdict and judgment rendered in favor of ...
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The opinion of the court was delivered by The Manhattan Masonic Temple Association brought this action against the county treasurer and the board of county commissioners of Riley county to recover certain taxes which it paid under protest on December 19, 1928. These taxes had been assessed on two city lots in Manhattan *647owned by plaintiff and upon which there is a building familiarly known as ...
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The opinion of the court was delivered by The plaintiff, Helen Van Pelt, brought this action against the Richards Paint & Paper Company and George Irvine to recover damages for personal injuries to plaintiff, and to her property as the result of a collision of automobiles. The verdict of the jury was in favor of plaintiff, awarding her damages in the sum of $18,000. Judgment was accordingly rende...
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This is an original proceeding to review an award made by the Industrial Commission awarding to E.A. Lauck, the claimant, $180 as temporary total disability and the further sum of $18 per week for a period of 60 weeks as permanent partial disability, making a total of $1,250. The claimant filed his claim with the Industrial Commission and alleged that he was injured while employed by Taubman Suppl...
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On December 17, 1926, Lizzie Green, formerly Lizzie Dial, commenced this action in the district court of Seminole county on behalf of herself and as guardian of Leola Dial, her minor child, and against Mose James, Annie E. James, J.A. Patterson, personally and as trustee, the Indian Territory Illuminating Oil Company, a corporation, Foster Petroleum, and Amerada. Petroleum Corporation. Plaintiff s...
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Case No. 19506 is a proceeding in error by the McAlester- Trust Company of McAlester, Okla., and its liquidating agent, E. H. Kelley, and C. G. Shull, the Bank Commissioner of Oklahoma, against the First National Bank of McAlester, Okla.; and case No. 19507 is likewise a proceeding in error by the same parties, coming from the district court of Pittsburg county; Harve L. Melton, Judge. The part...
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This is an original action filed in this court by petitioner to review an award of the State Industrial Commission made and entered on the 1st day of July, 1930, in favor of C.P. Smock. The award gave the respondent pay for temporary total disability from June 19, 1929, to October 25, 1929, 15 weeks and three days, less any sum or sums heretofore paid, for respondent's temporary total disability. ...
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This is an original action to review an order and award of the State Industrial Commission made and entered on the 8th day of April, 1930, wherein A. Wells, respondent herein, was awarded compensation for temporary total disability at the rate of $11.15 per week from date of alleged accident until further ordered by the Commission. The first finding of the Commission is as follows: "That claimant,...
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This is a proceeding in error from the district court of Seminole county, Okla., the Honorable W.J. Crump being the trial judge. This is the second time that this case has been brought to this *Page 280 court for consideration. When it was before this court before, this court rendered an opinion, and it reversed the action of the lower court. (120 Okla. 54, 250 P. 534.) In rendering judgment, the...
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This is an original action filed in this court to review an award and judgment of the State Industrial Commission, made and entered on the second day of May, 1930, wherein the State Industrial Commission awarded William F. Osborn compensation at the rate of $18 per week for a period of 500 weeks. Said award was made in favor of Osborn as against James R. Fitzgerald and Maryland Casualty Company as...
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The defendant filled his original petition in this court on October 9, 1930, alleging that on or about the..day of., 1928, he was convicted in the county court of an offense of illegal possession of intoxicating liquor, and sentenced to a term of 60 days in county jail, and to pay a fine of $150; that he appealed his case to the Criminal Court of Appeals, which *164 judgment was affirmed by the...
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Plaintiff in error, hereinafter called defendant, was convicted in the district court of Atoka *257 county of the crime of larceny of live stock, and his punishment fixed by the jury at imprisonment in the state penitentiary for 10 years. The evidence of the state was that on the 1st day of October, 1928, W. M. Baskett was the owner among other cattle of one dark red steer, about six months o...
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Plaintiff in error, hereinafter called defendant, was convicted in the district court of Atoka county of the crime of larceny of live stock, and his punishment fixed by the court at imprisonment in the state penitentiary for seven years. The evidence of the state was that W. M. Baskett was a ranchman and the owner of a large number of cattle; that on the 10th day of October, 1928, a dark red mu...
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Plaintiff in error, hereinafter called defendant, was convicted in the district court of Okmulgee county of the crime of grand larceny, and his punishment fixed by the jury at imprisonment for eighteen months in the state penitentiary. The evidence of the state was that the defendant at the time of the larceny was engaged in the business of buying and selling second hand oil well supplies and mate...
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Plaintiff in error, hereinafter called defendant, was convicted in the county court of Greer county of the crime of unlawfully manufacturing intoxi-eating liquor, and his punishment fixed by the jury at a fine of $100 and imprisonment in the county jail for 30 days. . ' j The evidence of the state was that the officers had a search warrant, and, upon search of the defendant’s premises, that dow...
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Tbe plaintiffs in error hereinafter referred to as tbe defendants, were convicted of disturbing tbe peace of H. O. Bo¡len, and each sentenced to pay a fine of $100, from which sentence tbe defendants have appealed. Tbe facts on behalf of tbe state, in substance, show: That on May 4, 1929, H. O. Bolen lived near a place in Osage county known as Webb City, with a family by tbe name of Corn. Bolen...
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Plaintiff in error, hereinafter called defendant, was convicted in the county court of Seminole county of the crime of unlawful possession of intoxicating liquor with intent to barter, sell, give away, or otherwise furnish and dispose of the same, and his punishment fixed by the jury at a fine of $500 and imprisonment in the county jail for a period of 180 days. The evidence of the state was th...
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The plaintiff in error, hereinafter referred to as the defendant, was convicted of having possession of intoxicating liquor, to wit, choctaw beer, with the unlawful, willful, and wrongful intent to barter, sell, give away, and otherwise furnish the same to others, and was sentenced to pay a fine of $50 and be confined in the county jail for a period of 30 days. From which judgment the defendant ha...
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The plaintiff in error, hereinafter called the defendant, was convicted in Pittsburg county district court, of rape in the second degree, and his punishment fixed at seven years in the penitentiary. From which judgment the defendant appealed. The substance of the evidence in this case tends to show that Henry Sanders and the prosecuting witness, Ruby Blair, lived in and near Eufaula, in McIntosh c...
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This case involves the construction of statutes relating to the sale of real property by a county. There is no dispute as to the facts. Appellants are the owners of the land upon which the taxes hereinafter mentioned were levied, and brought this *Page 437 action against the Treasurer and Ex-officio Tax Collector of Ada County, the County Commissioners of said county, and the Commissioners of Dra...
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Plaintiff in error, hereinafter called defendant, was convicted in the county court of Dewey county of the crime of selling intoxicating liquor, and his punishment fixed by the jury at a fine of $500 and imprisonment in the county jail for six months. The evidence of the state is that the defendant sold a gallon of whisky to one Mont Corey, and on cross-examination he admitted that he had previous...
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The facts in this case are admitted and are identical with those in case No. 5695, Heffner v. Ketchen, post, p. 435, 296 P. 768. The statute there under consideration, C. S., sec. 3423, as amended, Sess. Laws 1929, chap. 216, p. 436, is controlling here. The Board of Drainage Commissioners of Drainage District No. 2 of Ada County sought a writ of mandate against the County Commissioners of Ada Cou...
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Plaintiff and respondent, Crystal Dome Oil Gas Co., a corporation, sued Paul G. Savic, defendant and appellant, demanding the delivery of certain property and damages for its detention. On January 19, 1930, judgment was entered in favor of plaintiff and against defendant, directing delivery and awarding $1,000 damages. From that part of the judgment awarding damages, defendant appealed September ...
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Appellants were jointly engaged under proper permit from the state in the business of raising fur-bearing animals. Under their agreement Mr. and Mrs. Davis had the care, custody and possession of one cross-bred fox named "Eva," the property of the other appellant. September *Page 407 24, 1928, Eva escaped from her pen and was on a marauding foray in the village of McCall, among the chickens of Mr...
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A.T. Malicote was an automobile salesman of cars owned by the Hargrove Motor Company, working on a commission basis – being paid a percentage on each sale he made. He had not been given instructions as to what he was expected to do with respect to selling cars, as to when or where he was to take out cars; the matter of his use of cars for demonstration purposes, as to when and where he took them a...
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This is an action founded upon a negotiable promissory note. Judgment was rendered in favor of the plaintiff and against both of the defendants for the amount owing upon the note, together with costs and attorney's fee. The defendant M.B. Johnson alone prosecutes this appeal. The plaintiff has 1 filed a motion to dismiss the appeal upon the grounds that an undertaking on appeal was not fil...
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Jacob Hauser, an employee of Royal Baking Company, died after a surgical operation on September 7, 1927. His dependents, the plaintiff herein, contending that his death resulted from accident arising in the course of his employment, applied to the Industrial Commission for compensation on account of his death to be paid out of the state insurance fund by which the employer was insured. From an ord...
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The defendant, Harry Huffman, has appealed from a judgment of conviction on a charge of receiving stolen property and from an order denying him a new trial. Huffman was charged, jointly with one Thomas Groom, with receiving, from two Indians, certain calves, the property of the United States, with the felonious intent to prevent the owner from again possessing them. Separate trials were granted an...
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BERNEICE Wolverton sued Reliance Life Insurance Company on a life insurance policy issued by the company to Golden G. Wolverton. Plaintiff is his widow and the sole beneficiary named in the policy. The cause was tried before a jury; verdict and judgment were for plaintiff; the defendant insurance company brings the matter to this court to review the judgment. We refer to Berneice Wolverton as plai...
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PLAINTIFFS in error are hereinafter referred to as the board, and defendant in error as the bank. The latter brought this action under our Declaratory Judgments Act seeking a judicial determination of the duty of the board to draw a voucher in favor of the bank for the return of money paid by it "by mistake and error" on an invalid certificate of purchase of state land. The cause was tried to the ...
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OPINION OF THE COURT C.E. Foster, now deceased, and Artie Foster, his wife, entered into an executory contract with J.R. Bennett for exchange of their residence properties. Pursuant thereto the former conveyed their property to the latter. In this *Page 320 suit against Bennett and a number of other defendants, the widow and heirs of C.E. Foster seek a reconveyance of it...
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This is an action brought under the provisions of section 3405, Revised Code of Arizona, 1928, for the purpose of determining the validity of certain bonds issued by the Verde irrigation and power district. Judgment was rendered in the superior court of Maricopa county declaring the bonds in all respects valid obligations of the district, and the matter has been brought before us for review. The s...
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OPINION OF THE COURT Plaintiff and appellant, H. Kempner, brought an action in the district court of Dona Ana county. He submitted no proof except a deposition which, upon objection, was disallowed by the court and was withdrawn by the plaintiff. So the case stands upon the pleadings, with no proof on either side. A jury had been impaneled for the trial of the case. [1] T...
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This is an action brought under the provisions of section 3405, Revised Code of Arizona, 1928, for the purpose of determining the validity of certain bonds issued by the Verde irrigation and power district. Judgment was rendered in the superior court of Maricopa county declaring the bonds in all respects valid obligations of the district, and the matter has been brought before us for review. The s...
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This is a replevin action commenced in the superior court for Pierce county by the plaintiff finance corporation, seeking recovery of possession from the defendant, Webster, of a Durant coach automobile, held by him as vendee under a conditional sale contract between the Paxson-Rife Motor Company, as vendor, and Webster, as vendee, which company has assigned its rights under the contract, and conv...
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The appellant, Max Fairfield, was charged, with another, by an information filed in the superior court of Snohomish county, with a violation of certain sections of the statutes relating to intoxicating liquors. The information contained five counts. The jury convicted the appellant on three of the counts, and acquitted him on the other two. From the judgment of conviction, he appeals. The informat...
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Plaintiff is an insurance company, organized under the laws of the state of California, and regularly licensed to write insurance in the state of Washington. This action requires a construction of the so-called insurance retaliatory statute, Rem. Comp. Stat., § 7092, which reads as follows: "If, by the laws of any other state, any taxes, fines, penalties, licenses, fees, deposits, or other obligat...
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This is an action to recover forty-five hundred dollars, alleged to be the amount plaintiffs' property in the city of Yakima depreciated in value as a result of the construction and maintenance by defendants of an undertaking establishment adjoining that property. The trial resulted in a verdict for the plaintiffs in the sum of five hundred dollars. Defendants' motion for judgment notwithstanding ...
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This is an appeal by the defendants from judgment on the pleadings in favor of the plaintiff, in an action of unlawful detainer. It appears from respondent's complaint that, on June 28, 1922, the Port of Seattle leased to the respondent the waterway in front of, and adjoining, lots fifteen and sixteen, block eighteen, of Laurelhurst Heights Addition to Seattle, and south of lot twenty-six, block f...
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This is a street intersection automobile collision case. The plaintiff, Space, seeks recovery of damages from the defendant, Durant company, for injuries to his person and his automobile, suffered, as he claims, as the result of the negligent driving by the Durant company's servant of its automobile. The Durant company, by cross-complaint, seeks recovery of damages from Space for damages to its au...
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Defendant was charged, by way of information filed by the prosecuting attorney for Lincoln county, with the crime of fraudulently obtaining bounty on wildcat pelts. On a plea of not guilty, trial was had before a jury, which returned a verdict of guilty as charged. From judgment and sentence on this verdict, the defendant appeals. [1] Appellant assigns error upon the denial by the trial court of h...
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The defendant was charged with the offense of unlawful possession of intoxicating liquor, and of having twice before been convicted of a like offense. Answering in the negative the interrogatory, "Did the defendant own the liquor?" the jury returned a verdict of guilty as charged. From the judgment and *Page 178 sentence pronounced upon the verdict, the defendant appeals. Two of the buildings on ...
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This is a proceeding in the nature of a receivership, brought by the city of Tacoma to wind up the affairs of local improvement district No. 347 in that city under the provisions of chapter 142, Laws of 1929. In December, 1910, the city duly established local improvement district No. 347 for the construction of a local improvement therein, which was to be paid for by special assessments against th...
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TOLMAN, C.J., dissents. This is an action upon an indemnity bond given by appellant, a compensated surety company, to respondent, on January 3, 1929. The bond, so far as material, reads: *Page 241 "That we, AMERICAN WOOD PIPE COMPANY, a corporation of the state of Washington, with principal place of business at Tacoma, Washington, as Principal, and THE AETNA CASUALTY AND SURETY COMPANY of Hartfor...
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Plaintiff, while in the employ of the defendant, stepped on a small piece of pipe ten inches in length and one-half inch in diameter, and was injured, and thereafter brought this action to recover damages. The cause was tried to the court and jury, resulting in a verdict in his favor in the sum of $980. The defendant moved for judgment notwithstanding the verdict, which motion was sustained, and t...
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This suit was instituted by plaintiff to foreclose a mechanic's lien for materials furnished and delivered for the construction of buildings on a certain lot amounting to the sum of $674.68, $3.65 for the expense of filing the claim of lien, and $200 as attorney's fees. This suit, by an order of the court made on April 30, 1929, was consolidated and thereafter heard with the suit of E.G. Jurgensv....
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On January 24, 1929, the plaintiff E.G. Jurgens filed in the circuit court a complaint alleging that he is the owner in fee simple and in possession of the following described real estate, the title to which is registered as shown on page 242 of book 13, Registry of Titles in the office of the registrar of titles for Lane county, Oregon, to wit: Lot No. 10, block No. 12, Driverton addition to Euge...
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The complaint avers that the defendant, who operates a small private hospital in Portland, so negligently attended to the plaintiff's care, after her services had been engaged and the plaintiff had been subjected to a surgical operation for the removal of her tonsils, that infected blood from the incisions was aspirated into plaintiff's lungs causing two large abscesses to form therein. Specifical...
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On the 5th of May, 1930, the defendant, R.L. Walker, was indicted by the grand jury of Yamhill county of the crime of unlawful possession of intoxicating liquor. On this indictment he was tried and convicted, and on July 28 was sentenced to be imprisoned in the county jail for thirty days and to pay a fine of $500 and the costs of the action. From this judgment defendant appeals. *Page 681 Season...
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This is a suit to foreclose a lien on personal property pledged to plaintiff to secure the payment of a *Page 273 loan made on October 11, 1926, by plaintiff to defendant Guaranty and Loan Company, a private corporation, in the amount of $5,000, with interest from date until paid at 8 per cent per annum. Plaintiff alleges, in substance, that the property so pledged by Guaranty and Loan Company co...
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The law of this state provides: “A lien upon real or personal property, other than that of a judgment or decree, whether created by mortgage or otherwise, shall be foreclosed, and the property adjudged to be sold to satisfy the debt secured thereby by a suit”: Oregon Code 1930, § 6-501. In a case such as the one at issue, where ownership of pledged property is involved, the pledgor insolvent, and...
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This proceeding was instituted for the purpose of reviewing certain orders made by the Civil Service Commission of Multnomah county, Oregon, resulting in the discharge of petitioner from his employment as chief deputy county clerk of that county. His petition represents that, after the civil service act became a law, the county clerk of Multnomah county filed with the county auditor a list of empl...
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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 477 In Banc. This is an action for damages on account of a personal injury. The action is brought under the Merchant Marine Act of 1920, 46 U.S.C.A., § 688. The cause was tried to the court and a jury, resulting in a judgment for plaintiff. Defendant States S...
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This action was brought by plaintiffs against Joseph W. Beveridge, county clerk of Multnomah county, Oregon, and National Surety Company, a corporation, his surety. The action is based on alleged negligence on the part of defendant Joseph W. Beveridge in failing to docket a decree of foreclosure and in failing to docket the deficiency judgment in a suit entitled W. M. Lane and Elisabeth Lane v. ...
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The defendant, Hattie Friswold, appeals from a decree in favor of the La Grande National Bank, foreclosing a mortgage upon her interest in certain lands. The material facts are as follows: She was indebted to the plaintiff bank on July 1, 1925, on *199 her own unsecured notes in the sum of $5,500 and also needed additional money to enable her to replant a crop of wheat that had been destroyed b...
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Plaintiff commenced this suit for divorce on the ground of cruel and inhuman treatment. Defendant answered, denying the acts of cruelty alleged in the complaint and prayed for a divorce upon the ground that plaintiff had committed adultery on October 27, 1928, with one Newt Ellis, which charge was denied by the reply. Upon the issues thus joined, the cause was tried in the court below and, from a ...
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This is a suit for the strict foreclosure of a contract for the sale of certain residence property in Eugene, Oregon. The contract of sale provides that time is the essence of the contract. It was dated October 26, 1927, and provided for an initial cash payment of $375 and monthly payments of $37.50, beginning November 20, 1927, for a period of eighteen months, and thereafter in the amount of $47....
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THE COURT. This action is one for the foreclosure of a mortgage upon real property brought by the plaintiff who sues as the transferee of the note and mortgage from the mortgagees before maturity. The answer of the defendants admitted the due execution and delivery of the note and mortgage and the nonpayment thereof. The defendants, however, denied that said instruments had been assigned to *Page ...
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This action is one brought by the plaintiff to quiet title against the defendants to a lot in the city of Compton, county of Los Angeles. To the plaintiff's complaint alleging ownership the defendants William McCord and Mary McCord filed an answer, denying the allegations thereof, and also served and filed a cross-complaint alleging themselves to be the owners of the lot in question. The trial co...
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The petitioner seeks the issuance by this court of a writ of mandate directed to the Honorable C.J. Luttrell, Judge of the Superior Court in and for the County of Siskiyou, requiring him as judge thereof to proceed with the further hearing and determination of a certain action pending in said court, and also for an ancillary writ of prohibition to be directed to Honorable Walter E. Herzinger, Judg...
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Plaintiff sued for damages for the alleged wrongful attachments of personal property used by him in drilling an oil-well. The defendants are the sheriff, his bondsman, and the attaching plaintiff. The cause was tried without a jury and resulted in a judgment for all defendants. The plaintiff appeals on a bill of exceptions. Behr and White entered into a contract with plaintiff wherein the latter a...
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In substance, the facts necessary to a decision in the pending appeal are that by the terms of a contract entered into between plaintiffs on the one side and defendants on the other, defendants agreed to sell to plaintiffs, and plaintiffs agreed to buy from defendants, certain real and personal property at a fixed price, to be paid partly in cash and the remainder of the purchase price by a mortga...
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The defendant Cary Company, a copartnership, was organized in the late fall of 1924. On January 1, 1925, pursuant to paragraph 3, section 5, Corporate Securities Act, as amended in 1923 (Stats. 1923, p. 90), Cary Company, as principal, and the appellant indemnity company, as surety, executed and delivered a bond to the state of California in the penal sum of $5,000. This bond was executed in con...
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THE COURT. Motion to dismiss appeal. [1] It appears from the record that on November 4, 1929, plaintiff filed a notice of appeal from a judgment in favor of defendant. No bill of exceptions has since been prepared nor has any transcript been settled under section 953a of the Code of Civil Procedure, and all proceedings for such settlement were terminated and dismissed on the sixth day of February,...
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This is an action arising out of a transaction, wherein the following are the principal items: (a) An option, by Jennie B. Doane, owner, to W. Ross *Page 344 Campbell Company, to purchase a two-thirds undivided interest in described real property; (b) An assignment of the option, by optionee to plaintiffs; (c) Notice to defendant Doane of exercise of right to purchase under the terms of the optio...
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This is an appeal from a judgment and order of life imprisonment imposed on the defendant *Page 259 upon conviction of two felonies and three prior convictions of felonies formerly committed by him. By means of an information filed in Yolo County the defendant was charged with four separate felonies, together with three prior convictions of other felonies. To each of these charges of prior convic...
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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 263 This is an action in which the plaintiffs seek to recover damages for the death of their son, caused by a motor vehicle accident. The accident occurred in the city of Bakersfield, in a subway under the Santa Fe Railroad tracks, on Union Avenue, a paved st...
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The appellant raises two points: First, that the evidence is insufficient to sustain or justify the conviction, and second, that the court erred in matters of law in instructing the jury. [1] Eliminating the evidence of the admitted accomplices, there is ample and sufficient evidence to sustain the conviction. The court by its instructions left to the jury the question as to whether or not certain...
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These two cases have been consolidated on appeal because they involve complaints based upon identical facts and contain identical allegations. Demurrers were sustained to the amended complaints in each case and appeals are prosecuted from the judgments which followed. The complaints in substance allege that plaintiffs and appellants were witnesses to a certain will and were called as witnesses at ...
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The issues presented by the first cause of action of defendant’s amended cross-complaint and plaintiff’s answer thereto were tried before a jury pursuant to stipulation of the parties. By his cross-complaint defendant sought to recover from plaintiff damages for breach of a. certain “Land Lease and Agreement” hereinafter set forth.The trial resulted in a judgment in favor of defendant and cross-c...
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This is an appeal from a judgment in mandate proceedings. The appellant was petitioner in the trial court, seeking by mandate to compel the respondent Board of Trustees of the Roseville Union High School District, and the members thereof, to admit him to the use and occupation of his right as a permanent teacher, to teach in the respondent Union High School and to pay him the salary to which he cl...
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In this action, the plaintiff seeks to hold the defendant as an acceptor of a bill of exchange. The defendant is engaged in conducting a packing-house for oranges and other citrus fruits at Lindsay, California. The plaintiff is engaged in the business of manufacturing and selling briquets or solid fuel for orchard heaters, and in the fall of 1925 one C.A. Bishop was its agent in the vicinity of Li...
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For a period of three months, commencing December 17, 1928, the defendant Contra Costa Building Loan Association occupied and paid rent for certain offices in a building in Richmond, belonging to plaintiffs; and thereafter plaintiffs brought this action to recover the rental thereof for the succeeding five months, claiming that the same was due under a five-year written lease theretofore executed...
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This is an appeal from an order denying a petition for a writ of mandamus to compel a school board to permit the petitioner to teach in the public school of that district and to require the payment of her salary therefor. The Board of Trustees of Oakville School District in Napa County consists of H.H. Carpenter, the duly elected clerk thereof; A.L. Lincoln and Peter Del Bondio. All of the members...
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The above-entitled actions are based upon the same publications made by the defendant, involve precisely the same points, are presented to us upon this appeal on one set of briefs, and are considered as one case. For convenience, however, we shall follow the procedure adopted in the briefs and consider by name only the case of Lucille Mortensen v. The Los Angeles Examiner, aCorporation, it being u...
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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 690 This is an appeal from an order and judgment of the Superior Court of Tulare County in a proceeding brought by the Lindsay-Strathmore Irrigation District, seeking the issuance of a writ of mandate to compel the Wutchumna Water Company to deliver to the pe...
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The Lindsay-Strathmore Irrigation District filed an action in the Superior Court of Tulare County against the Wutchumna Water Company and James B. Rivers, seeking a writ of mandate to compel the delivery of certain water to which the irrigation district claimed to be entitled as a stockholder in the water company. The water company diverts a considerable portion of the water of the Kaweah River in...
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Claimant was injured while working for the Geneva-Pearl Oil Gas Company as a pumper and as a result of the accident suffered 85 per cent. of the loss of vision of the right eye. The company filed an answer admitting the injury, but pleaded that the claimant was hired at a wage of $50 per month to be paid by the Geneva-Pearl Company and $90 per month by the Rockland Oil Gas Company and that any aw...
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This is an original proceeding filed by the Standard Paving Company and the Southern Surety Company, petitioners, to review an award of the Industrial Commission entered on the 3rd day of June, 1930, allowing R.D. Huddleston, the claimant, compensation for 14 weeks and five days for an injury to his left eye. Claims have been filed in two separate cases and a hearing had on each. The first was for...
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The parties on appeal appear in the reverse order to that in the district court and will be referred to as they appeared there. The plaintiff brought an action against the defendant for divorce and an equitable division of their property. The defendant filed an answer and cross-petition. After an exhaustive hearing by the court, the court granted the plaintiff a divorce on the ground that the d...
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This is an original action brought in this court to review an award of the State Industrial Commission in favor of the respondent herein. The record shows that on Saturday, October 20, 1928, respondent sustained an accidental injury while employed by the petitioner. He was taken to his home. On Monday he was unable to return to work. He called the hospital and learned that the petitioner's physici...
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This action was commenced in August, 1928, by defendant in error, hereinafter mentioned as the church, against Madge Hill Karns, to cancel a certain resale tax deed issued to her by the board of county commissioners of Nowata county, and recorded November 7, 1927, and to cancel a prior tax deed executed by the county treasurer of said county to the board of county commissioners and recorded Septem...
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The parties to this cause appear in the reverse of their trial positions. Their business relationship was that of insurer and insured. We shall so refer to them, or according to their trial positions, or by name, as may be convenient. H.M. Neumann was a grocery merchant located and doing business in the city of Guthrie. On March 15, 1925, the Sun Insurance Office insured Neumann's stock against lo...
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The plaintiff in error, hereinafter referred to as plaintiff, was duly incorporated under the laws of the state of Oklahoma on May 18, 1911, the articles of incorporation providing for a term of 20 years from that date. On May 23, 1929, the plaintiff, pursuant to the provisions of chapter 41 of the Session Laws of 1927, filed with the Secretary of State amended articles of incorporation providing ...
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This is a review of an order of the State Industrial Commission dated August 1, 1930, wherein it was found that Holcomb on December 4, 1929, while engaged in hazardous employment of Earl W. Baker Company, sustained an accidental personal injury arising out of and in the course of his employment. The Commission found that Holcomb sustained, as a result of the injury, a "rupture of the right side an...
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Wilbur Barnett et al., the plaintiffs in error herein, as plaintiffs, brought this suit against the incorporated town of Waynoka, the defendants in error herein, as defendants in the district court of Woods county, to enjoin the board of trustees of the town and the town clerk from issuing tax warrants against the property of the plaintiffs because of the construction of a certain district sewer i...
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This is an original action by petitioners to review an award of the Industrial Commission. The injury complained of occurred July 16, 1929. The record shows that E.C. Watson, respondent herein, filed his claim with the Industrial Commission against the petitioners, September 5, 1929. The respondent alleges that he was injured on July 16, 1929 at about 11:30 a. m. while shoveling gravel and sand fo...
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J.W. Watts, defendant in error, hereinafter referred to as plaintiff, brought an action in the district court of Oklahoma county against the Aetna Life Insurance Company, plaintiff in error, hereinafter referred to as defendant, Mead Bros., and Dr. Von Wedel to recover a money judgment for personal injury. At the conclusion of the evidence of the plaintiff, the plaintiff voluntarily dismissed the ...
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The plaintiff in error, hereinafter called defendant, was convicted in the district court of Lincoln county of stealing a cow, and his punishment fixed at two years in the state penitentiary. The evidence of the state is circumstantial and, briefly stated, is that at the time charged a cow was stolen from the lot of one Brown near the town of Carney. On the night of the theft, defendant was seen d...
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Plaintiff in error, hereinafter called defendant was convicted in the county court of Woods county of the crime of unlawful possession of intoxicating liquor, and his punishment fixed by the court at a fine of |50 and imprisonment in the county jail for 30 days. The evidence of the state was that the officers had a search warrant and searched the premises of the defendant, but did not find any ...
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The plaintiff in error, hereinafter called defendant, was convicted in the district court of Pontotoc county of manslaughter in the first degree, and his punishment fixed at four years in the state penitentiary. The homicide occurred in September, 1926. A preliminary examination was held. The magistrate made a finding of probable cause of manslaughter, and transmitted his order of commitment and t...
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The plaintiff in error was convicted in the county court of Payne county of having pos *183 session of intoxicating liquor, to wit, one quart of whisky, with the unlawful intent to sell, barter, give away, and otherwise furnish the same to others, and his punishment fixed at a fine of $50, and imprisonment in the county jail for a period of 30 days. From which judgment the defendant appeals. ...
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The plaintiff in error, hereinafter called defendant, was convicted in the district court of Osage county of manslaughter in the first degree, and was «sentenced to- serve- a term of 10 years in the state penitentiary. A motion to dismiss the appeal has been filed, setting out that subsequent to the judgment in this case defendant pleaded guilty in the United States District Court for the North...
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In dissenting from the conclusions reached by a majority of the court I deem it necessary to state my reasons why I cannot concur in the holding of the court that the affidavit for a change of venue was filed too late, and therefore the motion for change of venue was properly denied by the examining magistrate, and that the motion to quash the information in the district court on the ground that t...
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The plaintiff in error, hereinafter referred to as the defendant, was convicted of having choctaw beer, with intent to sell, barter, give away, and otherwise furnish the same in violation of the prohibitory laws, and was sentenced to pay a fine of $125, and be imprisoned in the county jail for 30 days. From the judgment, the defendant has appealed to this court. The testimony on behalf of the stat...
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The plaintiffs in error, hereinafter referred to, as the defendants, were each convicted of *Page 194 possession of intoxicating liquor with intent to sell, barter, give away, and otherwise furnish the same, contrary to law; and each was sentenced to pay a fine of $50 and costs and be confined in the county jail for 30 days. From which judgment the defendants have appealed. Before the case was ca...
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The plaintiff in error, hereinafter referred to- as the defendant, was convicted of the crime of murder, and his punishment fixed at life in the state penitentiary, from which judgment and sentence the defendant has appealed. The state, in order to sustain the allegations in the information, introduced the following testimony in substance : J. C. Settles stated: “I live IV2...
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This is an original proceeding in habeas corpus. Petitioner alleges that he was convicted in the county court of Cleveland county for a violation of the prohibitory law and was sentenced to serve a term of 30 *Page 54 days in the county jail and to pay a fine of $50; that he has served said sentence of 30 days. That he gave a stay bond for the payment of the fine and costs under the provisions of...
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The plaintiff in error, hereinafter called defendant, was convicted in the county court of Noble county of having the unlawful possession of intoxicating liquor, and was sentenced to pay a fine of $150 ■: and tO' be imprisoned in the county jail for 30 days. The testimony in behalf of the state is in substance as follows: P. H. Yeager, a deupty sheriff, together with other parties, went to the ...
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The plaintiff in error, hereinafter referred to as the defendant, was convicted of seduction, and sentenced to the reformatory at Granite for a term of five years at hard labor, and to pay the cost of the prosecution. From which judgment the defendant has appealed to this court. It is not deemed necessary to set out in full the testimony in this case. The testimony on behalf of the state shows tha...
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Plaintiff in error, hereinafter called defendant, was convicted in the county court of Johnston county of the unlawful possession of intoxicating liquor, and his punishment fixed by the jury at 30 days in the county jail and a fine of $100. *139 The evidence of the state was that the officers had a search warrant to search the premises of defendant, and in his smokehouse, about 12 feet from h...
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Plaintiff in error, hereinafter called defendant, was convicted in the district court of Pontotoc county of the crime of robbery with firearms, and his punishment fixed by the court at imprisonment in the state penitentiary for eight years. The evidence of the state was that George M. Mayhue, the prosecuting witness, was engaged in business in the city of Ada; that he became acquainted with the de...
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The plaintiff in error, hereinafter called defendant, was convicted in the county court of Stephens county of the crime of the unlawful sale of intoxicating liquor, and his punishment fixed by the jury at a fine of $300 and imprisonment in the county jail for 30 days. The information charged the defendant with the sale of intoxicating liquor to one Earl Clark, who was called as a witness by the...
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The plaintiff in error, hereinafter called the defendant, was convicted of having possession of one-half gallon of whisky with the willful and unlawful intent on the part of the said C. C. Murray to barter, sell, give away, and otherwise furnish and dispose of the same in violation of the prohibition laws of the state of Oklahoma, and was sentenced to pay a fine of $250 and be imprisoned in the c...
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This is an original proceeding by Logan City, a municipal corporation of Utah, hereinafter called the city, against the Public Utilities Commission of Utah, hereinafter called the commission, and the Mountain States Telephone Telegraph *Page 444 Company, hereinafter call the company, to review an order of the commission authorizing a new and higher schedule of rates for telephone service in the ...
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The Nevada industrial insurance act defines an employee to be a "person in the service of an employer." The existence of a contract for hire in itself is not sufficient to establish this relationship, but in addition to the contract there must be the actual service. In the instant case the contract was entered into on November 2. By the very terms of the contract Costley was not to go to work unti...
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Louis G. Hummel, hereinafter called plaintiff, brought suit against Citizens' Building Loan Association, a corporation, William F. Curtayne, Margaret Curtayne, his wife, and Unit Laundry, a corporation, on two causes of action; the first demanding an accounting of the rents, profits, and value of the use and occupation of certain premises, and the second asking that a sheriff's deed to said premi...
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In 1924, James E. Scanlon, on an amended complaint charging desertion, and alleging that there were no community property rights, secured a divorce from Helen G. Scanlon, in which action Mrs. Scanlon filed no pleadings but through her attorneys, entered into a stipulation which stated that in full settlement of all property rights of the parties, Mr. Scanlon should pay Mrs. Scanlon $25 a month unt...
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Appellant brought suit to recover on a small open account for merchandise sold and delivered. Respondent admitted this account, but filed two counterclaims, one for damages resulting from breach of contract, and the other for an amount due on the purchase price of a crop of potatoes. A motion for nonsuit on the first counterclaim was overruled and thereafter the jury brought in a verdict against a...
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Plaintiff and appellant, Boise Street Car Company owns and operates in the city of Boise, eleven passenger carrying motor-busses, weighing from 8,300 pounds to 12,000 pounds. On January 31, 1930, appellant tendered defendant and respondent, Leonardson, assessor of defendant and respondent, Ada county, the sum of $1039.20 for registration license fees for the year 1930 upon said busses. Leonardson...
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The respondent, F.H. Michaelson, Receiver, moves this court for an order prescribing and fixing a definite time within which a map shall be prepared and filed with the clerk of this court, said map to be made in accordance with a stipulation entered into upon the trial, and in the event such map is not furnished in compliance therewith, or not deemed desirable, that the original water *Page 348 r...
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THIS writ of error is prosecuted to review a decree of heirship of the district court affirming a similar decree of the county court and involves rights arising under a certificate of insurance issued, pursuant to provisions of the federal war risk insurance law, to a soldier in the military service of the United States. On June 28, 1918, Patrick J. McQuade, a soldier in the United States Army, ap...
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The plaintiff, Ray J. Becwar, has appealed from a judgment against him and in favor of Leon McNicol, defendant, in an action instituted to recover a balance alleged to be due on a promissory note purchased by Becwar with other assets of the defunct Havre National Bank. The defense interposed was that a payment, indorsed on the note, was made under a compromise agreement in full settlement of the d...
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The policy in suit was void from the beginning on account of the breach of warranties as to the age of the car and the *Page 300 date of purchase, even if these warranties had been wholly immaterial so far as the risk was concerned, under section 8129, Revised Codes 1921. (Collins v. Metropolitan Life Ins. Co.,32 Mont. 329, 108 Am. St. Rep. 578, 80 P. 609, 1092; Mandoli v. National Council of Kni...
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I cannot concur in the conclusion reached by my learned associates that section *Page 218 2 of Article XIII of the Constitution requires a submission of the Act before us to a vote of the people, nor in the method of treatment by which they have arrived at that conclusion. To my mind the basic error manifest in the opinion is in brushing aside the principal question presented, i.e.: Does the "deb...
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By the first count of an information, the defendant was charged with the crime of opening *Page 263 up, conducting and maintaining "a place known as the Kolgray Hotel for the unlawful sale of intoxicating liquor." By the second count of the information, the defendant was charged with the crime of having intoxicating liquor in his possession with intent to sell the same. The trial resulted in a ve...
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By conditional sale contract, executed February 4, 1926, Anna Garner, as vendor, sold to J.R. Thompson and Elmer Johnson, as vendees, ice boxes, tables, chairs, and other equipment for a restaurant and card room business. Johnson's interest in the property was, shortly thereafter, acquired by Thompson. No business other than a lunch room and restaurant was conducted by the partnership or by Thomps...
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This action arose over an open account between the parties. Findings of fact and judgment were entered for the plaintiff, A.R. Johnson. The defendant Townsend Co., a corporation, has appealed. Appellant is a broker handling stocks and bonds, with offices in Tacoma. As such broker, it did considerable business with and for the respondent over a period of several months, purchasing and selling stoc...
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The defendants have appealed from judgments in favor of the plaintiff in two actions, which are so related that they were tried together and have been consolidated on appeal. Louise McCulloch instituted one action to set aside the will of her father. She alleged that the decedent was mentally incompetent to make a will; that the will was procured by undue influence; that the beneficiaries under...
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The plaintiff finance company seeks recovery from the defendant Zapffe, and the marital community consisting of himself and wife, upon a negotiable promissory note executed and delivered by him to one Greenwell, and by Greenwell sold and transferred by endorsement to the finance company before maturity. The case proceeded to trial in the superior court for King county, sitting with a jury, but, du...
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On April 18, 1930, defendant entered his plea of guilty to the following information: "John Stevenson is accused by the Prosecuting Attorney of Lincoln county, state of Washington, by this information of the crime of grand larceny committed as follows, to-wit: The said John Stevenson on or about the 17th day of April, 1930, at the county of Lincoln, state of Washington, then and there being, did t...
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The defendant, Clevenger, was, by information filed in the superior court for Clallam county, charged with contributing to the delinquency of a minor child, as follows: "That on or about the 21st day of July, 1929, in the County of Clallam, State of Washington, the said . . . and Howard Clevenger, then and there being, did, wilfully, unlawfully and wrongfully encourage, cause and contribute to the...
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At the hour of noon, November 23, 1928, W.W. Nettleship and K.B. Panchot were riding in a small truck, owned and driven by Mr. Nettleship, which was proceeding in a general northwesterly direction along the Inland Empire Highway at a point *Page 293 about a mile and a half north of Wallula. Defendant J.E. Shipman, a salesman in the employ of defendant Reid Bros., Inc., a wholesale dealer in hospi...
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This is a suit to foreclose a mechanic's lien for labor performed under a written contract "to supply all skill, labor, plant and equipment and to perform all work necessary in the construction of a warehouse and a refrigerated storage house" upon certain real property known as the North Pacific Mills tract, situated in the city of Portland, Oregon. The contract was dated August 23, 1927, and was ...
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The defendant was indicted, tried and convicted of the crime of rape. From a judgment and sentence defendant appeals. The charging part of the indictment is as follows: "The said Charlie Ralph on the 25th day of May, A.D. 1930, in the said county of Clackamas and state *Page 600 of Oregon, then and there being, and one Vivian Ralph, then and there being the daughter of the said Charlie Ralph, and...
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Charles C. Banfield filed a petition in the Probate Department of the Circuit Court for Multnomah county, Oregon, praying that lot 9, block 5, in Howe's addition to Portland, with the dwelling house thereon and its appurtenances, be set apart as his homestead. The allegations of the petition are substantially as follows: On March 26, 1913, the petitioner was intermarried with Marie Banfield, who d...
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This is an action for personal injuries. Plaintiff alleges, in effect, that she rented a house from the defendants, at a month to month rental. Before renting she observed that the stairway leading from the first floor to the basement was in need of repair. She called defendants' attention to this fact through their agents and made it a condition of her rental that they would repair the same. That...
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This is a special proceeding by the state to determine the ownership of ten head of range cattle, seized on the range near Arivaca in Pima county on or about September 24, 1929, by one H.L. Kerr, a cattle inspector. Nine of these animals bore the unrecorded brand quarter circle R lazy E, thus: And one, a yearling heifer, was unbranded but earmarked with a slit in each ear. The yearling heifer was ...
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ON MOTION TO DISMISS The appellant, William C. Snow, who occupies that position in all of these cases, eight in number, has undertaken to bring them to this court by the direct appeal method of appellate procedure. He seeks a review of eight judgments rendered by the District Court of Big Horn County in the matter of the liquidation and insolvency of the Basin State Bank,...
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The record on appeal shows that appellant is seeking review of a judgment entered May 15, 1929. The notice of appeal, which should have been served and filed within ten days from the entry of the judgment (Sec. 6402, C.S. 1920), was served and filed August 2, 1929, much too late. A motion for a new trial, filed May 23 and overruled July 23, 1929, did not have the effect of extending the time for s...
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This is an action to recover damages for a tort. It was alleged in the complaint that plaintiff was a licensed fisherman and was licensed and authorized to operate three set-nets in Tillamook Bay; that, while so licensed and so operating said three setnets, the "defendants, acting together, wrongfully, wilfully and maliciously drove certain power boats operated by them upon, over and against said ...
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In Banc. This is an action to recover damages sustained by the plaintiff as the consequence of personal injuries inflicted upon him July 6, 1925, when he collided with an automobile driven by the defendant in the intersection of Third and Caruthers streets, Portland. The complaint alleged that the plaintiff was walking north on the west side of Third street, that he had stepped from the curb and h...
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Plaintiff and respondent, Martha M. Judd, widow of Cyrus E. Judd, deceased, paid out of her separate funds certain taxes, water maintenance charges and amortization instalments to protect a parcel of land left by her husband. The deceased had made a will directing that the property be sold and the proceeds equally divided between his widow, his son, Leon E. Judd, and an adopted daughter, Rose I. L...
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If the verdict was contrary to the evidence as far as Brennan, the codefendant, was concerned, and the trial judge so ruled that it was, it is contrary to the evidence as far as appellant is concerned, likewise. There was not a scintilla of difference in the evidence, and if any it favored appellant. There appears to be a gross discrimination under our laws and a violation of the 14th amendment to...
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OPINION Respondent has made a motion to dismiss the appeal from the interlocutory decree made and entered herein and from the order directing the sale of the property *Page 227 described in the decree, to affirm the order, and for damages. This is a partition proceeding. No answer was filed to the complaint. Upon the hearing the court ordered the property sold at ...
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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 637 This is a proceeding in mandamus to compel the controller and treasurer respectively of the city of Los Angeles to draw a warrant for and pay to the petitioner the principal amount theretofore paid by the petitioner in satisfaction of a judgment on a forf...
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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 672 The complaint in this action asks for an injunction against the defendant prohibiting it from permitting water to flow or seep through its canals upon plaintiffs' lands; for the abatement thereof as a nuisance, and for damages alleged to have been already...
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The defendants appeal from the judgment of the trial court in the plaintiff’s favor for the sum of $3,000 for a lettuce crop upon 100 acres of land, alleged to have been sold and delivered to the defendants at the agreed price of $3,000, which the defendants have refused to pay. The answer of the defendants is a denial of the averments of the complaint and consists, by way of *755 further and a...
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Appeals by the husband in an action of divorce for desertion, from that part of the interlocutory decree awarding the wife the sum of $35 a week as permanent alimony and $100 as attorney's fees, and also from an order granting her, during the pendency of the first appeal, the sum of $25 a week alimony and additional attorney's fee for such appeal. [1] As to the appeal from the order, the bill of e...
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This is an action in replevin to obtain the possession of two diamond rings. After a trial on the merits to the court, sitting without a jury, findings of fact and conclusions of law were made, followed by a judgment awarding one of the rings to the plaintiff, and denying a recovery as to the other. From that judgment, the defendant has appealed. This is a case which, in the final analysis, is ...
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This is an original proceeding brought in this court to review an award of the Industrial Commission. A portion of the award is as follows: "That said claimant returned to work for said respondent on the 6th day of August, 1929, following his injury on November 20, 1928, at a wage of approximately $40 per week; that he has continued in said employment from that day until this, and in the interim h...
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This is an appeal by defendant from a judgment in favor of plaintiff on a directed verdict in the sum of $1,055.93, with interest. The record discloses that plaintiff owns certain lands in Toole county. In 1920 he leased them to Gordon Campbell for the purpose of operating for oil and gas, Campbell agreeing to deliver to plaintiff 12 1/2% of all oil produced, or to pay in cash 12 1/2% of the marke...
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THE complaint of the plaintiff Lord alleges that in 1924, the defendant Bacher obtained a judgment against him in a tort action for about $950, and in January, 1925, Bacher assigned this judgment to his codefendant Howser; that before and at the time of the assignment he, plaintiff Lord, was entitled to a set-off against the same in that, for a valuable consideration, two promissory notes were exe...
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Pursuant to motion of respondent to dismiss the appeal herein, based upon the notice of appeal filed February 28, 1930, the appeal is ordered dismissed. ...
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Be it remembered, that on the twenty-second day of May, 1930, there was filed in this court a certified copy of the record of conviction of Charles L. Olson of the crime of larceny, showing his conviction in the district court of the eleventh judicial district of the state of Montana, in and for the county of Lincoln, on the ninth day of April, 1930. And that thereafter L. V. Ketter, first assist...
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Respondent’s motion to dismiss the appeal herein on the ground that appellant has failed to file record on appeal in the supreme court within the time allowed by law, is sustained and the appeal ordered dismissed. ...
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The motion of the attorney general that the appeal herein be dismissed for the reason that while notice of appeal was filed on March 14, 1930, no transcript has ever been filed, is sustained and the appeal ordered dismissed. ...
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On motion of the attorney general it is ordered that the appeal herein be dismissed for failure of appellant to file transcript on appeal within the time allowed by law. ...
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Decided October 9, 1930. Relators' application for a peremptory writ of mandate is denied....
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Decided November 15, 1930. On motion of counsel for appellant the appeal in this case is dismissed....
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Upon motion of the attorney general the above-entitled cause is dismissed without prejudice. ...
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The plaintiff in error was convicted in the county court of McClain county on a charge of possession of mash for the manufacture of intoxicating liquor, and was sentenced to pay a fine of $100 and imprisonment in the county jail for 60 days. No brief has been filed in support of the assignment of errors. The evidence reasonably sustains the verdict and judgment. No new question is presented. No...
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The plaintiff in error was convicted in the county court of Oklahoma county of having the unlawful possession of intoxicating liquor, and his punishment fixed at a fine of |250 and imprisonment in the county jail for a term of 6 months. The judgment was entered in March, 1930, and the appeal filed in this court in July, 1930. No briefs in support of the appeal have been filed. An examination of...
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The plaintiff in error, hereinafter called defendant, was convicted in the connty court of Murray county on a charge of selling intoxicating liquor, and was sentenced to serve a term of 30 days in the county jail and to pay a fine of $50. The evidence reasonably sustains the verdict and judgment. No new question is presented. No error requiring a reversal is made to appear. The case is affirm...
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The plaintiff in error, hereinafter referred to as defendant, was convicted in the district court of Latimer county of manslaughter in the first degree, and was sentenced to serve a term of five years in the state penitentiary. Prom the judgment of conviction the defendant appealed to this court. The appeal was perfected on March 26, 1930, by filing in this court petition in error with case-mad...
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The plaintiff in error, hereinafter called defendant, was convicted in the county court of Pittsburg county on a charge of having the unlawful possession of intoxicating liquor, to wit, choctaw beer, and was sentenced to' pay a fine of $50 and to serve 30 days in the county jail. The record discloses that defendant, a youth 19 years of age, lived with his aunt. A search of her premises disclose...
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The plaintiff in error was convicted in the county court of Beckham county on a charge of possession of whisky, and was sentenced to pay a fine of $350, and imprisonment in the county jail for 90 days. No brief has been filed in support of the assignment of errors. The evidence reasonably sustains the verdict and judgment. No new question is presented. No error requiring a reversal is made to a...
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The plaintiff in error was convicted in the county court of Okfuskee county of having the unlawful possession of intoxicating liquor, and was sentenced to pay a fine of $50 and to serve 30 days in the county jail. Judgment was entered upon a plea of guilty. No motion for a new trial was filed. No question is presented by the appeal. The case is affirmed. ...
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The plaintiff in error, Leroy Foster, was convicted in the county court of Okmulgee county, on a charge of possession of intoxicating liquor and was sentenced to pay a fine of $500 and confinement in the county jail for a period of 180 days. No brief has been filed in support of the assignment of errors. The evidence reasonably sustains the verdict and judgment. No new question is presented. No...
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The plaintiff in error, hereinafter called defendant, was convicted in the county court of Greer county on a charge of selling whisky, and was sentenced to pay a fine of $100 and to serve 30 days in the county jail. The testimony for the state is that at the time charged defendant delivered to one Irene Hill a half gallon of whis-ky for the purpose of her delivering the same to one Mc-Carter. S...
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The plaintiff in error was convicted in the county court of Woodward county on a charge of selling one-half pint of whisky, and was sentenced to imprisonment in the county jail for a period of 30 days and pay a fine of $100. No brief has been filed in support of the assignment of errors. The evidence reasonably sustains the verdict and. judgment. No new question is presented. No error requiring...
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The plaintiff in error, hereinafter called defendant, was convicted in the county court of Murray county on a charge of transporting whisky, and was sentenced to serve a term of 30 days in the county jail and to pay a fine of $50. The evidence sufficiently sustains the verdict and judgment. No new question is presented. No error requiring a reversal is made to appear. The case is affirmed. ...
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This is an original proceeding in habeas corpus. Petitioners allege that they are held by the sheriff of Comanche county under a finding of probable cause and a commitment from a magistrate upon a preliminary wherein petitioners were charged with murder, that there is no evidence whatever that petitioners had any connection with the murder charged, and that they are entitled to be discharged. ...
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It appearing to the court that the petition in this case was filed on November 15, 1927, and that no one appears for the petitioner to prosecute said petition, it is therefore considered and ordered by the court that for failure of the petitioner to prosecute his case the same is dismissed. ...
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The plaintiff in error, hereinafter called defendant, was convicted in the county court of McCurtain county on a charge of manufacturing whisky, and was sentenced to pay a fine of $50 and to serve 30 days in the county jail. *135 The case was tried in July, 1929, and the appeal was lodged in this court in November, 1929. No- briefs in support of the appeajl have been filed, nor was there any ...
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This is an original proceeding in ha-beas corpus. The petitioner alleges that he is unlawfully restrained by the sheriff of Oklahoma county; that heretofore petitioner was charged before a committing magistrate with the crime of riot; a preliminary hearing was had, and petitioner was held for the action of the district court; that there is no evidence tending to prove probable cause to believe pe...
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The plaintiff in error, hereinafter called defendant, was convicted in the county court of Murray county on a charge of manufacturing intoxicating liquor, and was sentenced to pay a fine of $50 and to serve 30 days in the county jail. The case appears to have been rather poorly tried, and the record is not in good shape. No new question is presented. The evidence sustains the judgment, and no p...
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The plaintiff in error was convicted in the county court of Cleveland county on a charge of transporting intoxicating liquor, and was sentenced to serve a term of 30 days in the county jail, and to pay a fine of $50. No brief has been filed in support of the assignment of errors. The evidence reasonably sustains the verdict and judgment. No new question is presented. No error requiring a revers...
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The plaintiff filed his original petition in this court on August 1, 1929, asking his discharge on the ground that the testimony taken in the preliminary trial was insufficient to show an offense had been committed. This petition was filed in this court August 1, 1929, since which time no further steps have been taken by the petitioner. After a careful reading of the testimony taken in the prel...
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This is an original petition filed in this court in which the petitioner alleges he is unlawfully restrained of his liberty by Mr. Bradley, sheriff of Payne county, Okla., that his restraint is illegal for the reason that he has been in custody of the sheriff for a period of more than 48 hours without an opportunity of a preliminary hearing; that bond has been fixed by Judge L. H. Woodyard of Pay...
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This action was brought to recover the balance claimed to be due for the construction of a concrete roadway and sidewalk. The defendants denied liability, and, by cross-complaint, sought damages for defective construction. The cause was tried to the court without a jury, and resulted in findings of fact from which the *703 court concluded that the plaintiff’s complaint should he dismissed, and ...
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THE COURT. [1] Writ denied on the authority of People v. Middleton,103 Cal.App. 135 [283 P. 976]. Certiorari denied by the Supreme Court of the United States, April 21, 1930. A petition for a rehearing of this cause was denied by the District Court of Appeal on May 26, 1930. *Page 1 ...
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The court is of the opinion that the issues here presented are identical with the issues involved in the case of State ex rel.Banker v. Clausen, 142 Wash. 450, 253 P. 805, and that the decision of the court in that case is wholly controlling here. Therefore the writ is denied, and the action is dismissed....
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