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Opinions in p Volume 3

This action was commenced in the district court of Oneida county, by the filing of a complaint therein September 12, 1883. The object of the action was to recover, as damages, the sum of $1,000, alleged to have been sustained by the plaintiff by reason of the diversion by defendant of water from plaintiff’s premises, to which he alleges he was entitled for irrigation. The amended answer of the def...
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This appeal has been submitted-upon briefs, without oral argument. The facts as shown by the record are that the Utah and Northern Eailway Company is a-corporation awning and operating the Utah and Northern Eailway, extending into and through the county of Oneida in this territory; that sixty-nine and eighteen one-hundrédths miles of said railway is within and upon the Fort Hall Indian reservation...
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The defendant, W. S. Stapleton, was tried, convicted, and sentenced at the November term of the district court in Ada county on an indictment for burglary. When called upon to plead, he entered the plea of not guilty, and made no objection to the form or substance of the indictment, by demurrer or otherwise. Upon the rendition of the verdict, the defendant moved an arrest of judgment — 1. On the g...
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Ah Too was indicted, tried, convicted, and sentenced at the November term of the district court, 1882, in Ada county, on an indictment for murder in the killing of Ah You. This appeal is taken from the judgment and from the ordér of *46the court overruling the motion for a new trial. The errors assigned in the bill of exceptions, and insisted upon in the argument on appeal are: 1. The refusal of t...
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This case was commenced in the probate court of Alturas county, by filing a complaint on the twenty-seventh day of November, A. D. 1882. The next day summons was issued and made returnable December 3, 1882, and was so returned, served on defendants. On the return-day the defendants, by their attorneys, Messrs. Kingsbury & McGowan, appeared specially in said cause, and filed their motion to set asi...
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It appears from the evidence and the findings of the court in this cause that Wilhelm Jaikowski was the owner and in possession of two-thirds interest in the North Star mine and one-half interest in the American Eagle mine, both situated in Warm Spring district, Alturas county, Idaho; that one Riley was the owner of the one-third of the North Star mine and one-half of the American Eagle; that in w...
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The assessor of Custer county, in this territory, for the year 1881, assessed the mill and appurtenances of- the plaintiff 'in error at $70,000, and bullion on hand at $170,000. TJpon the complaint of the manager of the company, the board of equalization, of the county reduced such assessment to $35,000 on the mill and its appurtenances, and to $25,000 upon the bullion.- From the order of- the boa...
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Tbe plaintiff filed bis complaint in this action on tbe third day of October, 1879. Summons was issued on the same day, but personal service was never effected. An attempt at service was made by publication on the twenty-seventh day of April, 1880. The following stipulation was entered, of record in the case and filed: “In the District Court of the Second Judicial District, in and for Idaho Terri...
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It appears by the findings that it was arranged between the mortgagee, mortgagor, and appellant that she should pay the sum of thirty-five hundred dollars for the satisfaction of the mortgage, and a conveyance to her of the mortgaged premises by the mortgagor. This entire sum was handed to the mortgagee, who retained the amount due on the mortgage, and gave the residue to the mortgagor. Whereupon ...
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When the defendant executed the mortgages which this action was brought to foreclose, the judgment *80which Wilcoxson had obtained in an action to foreclose a prior mortgage was satisfied and discharged of record, and the court finds that the mortgagees of the subsequent mortgages had no notice or knowledge of any equities then existing in favor of Catherine Matzen who paid the sum due on the Wilc...
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The defendant Stillinger does not appear to have had any claim to the demanded premises beyond what his naked possession gave him; and at the time of the commencement of this action the plaintiff had the legal title, and was entitled to the possession of said premises. This is sufficiently apparent, although somewhat obscured by the finding of a great number of irrelevant facts. Judgment affirmed....
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The deceased died intestate, leaving a widow him surviving, who became administratrix. His mother (the appellant) is his only other heir. The widow filed a petition that a homestead be set apart to her, none having been selected, designated, or recorded in the lifetime of the intestate. She petitioned the court to set apart three parcels of land, viz.: First, containing 115.98 acres, being farm la...
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Whether China Davine had flowing in it for more than eight years prior to the trial of this cause, a stream of natural water, is in our opinion immaterial, inasmuch as the defendant had, ever since 1865, appropriated the waters of the ravine, and had partly used it for irrigation and partly sold it to be used, up to the time of the appropriation claimed to have been made by O’Connor, the intestate...
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The plaintiff gave to the defendant an agreement in -writing, of which the following is a copy: “I hereby agree that H. G-. Fitzell may take a fourth or fifth interest in the ditch right he has this day conveyed to me, by being at his proportion of the expense on said ditch, down to, and through his lands. June 28, 1880. GL F. Kelley.” On behalf of plaintiff, it is contended that this ivas simply ...
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This is an appeal by the people from a judgment or order in favor of defendant on a demurrer to the indictment: Pen. Code, 1238. The notice of appeal was served and filed on the tenth day of November, 1883. If the judgment or order was appealable the people had perfected an appeal from the same on the twenty-sixth day of October, 1883. The appeal must therefore be dismissed....
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—This is an action to foreclose a mortgage executed by one Robert Chalmers in his lifetime. His executor and executrix and a junior mortgagee were made defendants. Joseph and Martin Alhoff are inter venors, and the court having rendered judgment against them, and directed a sale of the mortgaged premises, they have appealed. The intervention is based upon the following facts: — In 1855 one M. Alho...
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The court below found that the land in controversy constitutes a portion of a public street, which had been wrongfully and unlawfully obstructed by the defendants, and that the defendants had and have no right or title thereto. In arriving at the conclusion that the land was a portion of a street, the court found that the same had been dedicated as a public street by the owners, and had been, with...
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action is similar to that of Stockton Bldg. & L. Assn. v. Chalmers, 65 Cal. 93, 3 Pac. 101, except that this is to foreclose the junior mortgage. The court found that the plaintiff had no knowledge of the alleged rights of the interveners until the complaint in intervention was filed; and there is evidence sufficient to justify the finding. Judgment and order affirmed....
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The court found, among other things, that at the date of said transfer said Marcuse was insolvent, and in contemplation of insolvency, and to prevent his property from being distributed ratably among his creditors he made said sale and transfer of said goods, wares, and merchandise ; that said sale and transfer were not made in the usual and ordinary course of business of said Marcuse, and for tha...
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Without passing on the question whether this court has the power to go behind the return herein, we say that it clearly appears to us, from the papers produced, on which the governor of this state acted, that his action was regular, and that it substantially complied with the act of Congress concerning fugitives from justice. The petitioner is therefore remanded....
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was evidence to sustain the findings of the court. If it be conceded that as against a riparian owner below, a person not such may turn into a natural stream water which would not naturally flow therein, and again divert the quantity of water which he led to the stream, the fact that he has conducted some water to it will not authorize him to divert all the water of the stream; and it is for him w...
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No points and authorities have been filed in this case, although the time extended for that purpose has long since elapsed. It is therefore ordered that the judgment be affirmed....
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The evidence is insufficient to support the findings of the court below in the following particulars: In finding 8, that Caldwell was authorized to act for and on behalf of the defendants at the meeting of creditors, and by his acts to bind the defendants, and to enter into any agreement or contract with Love or his creditors; finding 10, so far as it is found that the defendants, or any person th...
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It is thoroughly and well settled that the relief aAvarded a plaintiff must be consistent with the case made by his complaint. The complaint in the present instance is a bill in *91equity to reopen a settlement and sale between partners, and to obtain an accounting of the partnership affairs, on the ground of fraud alleged to have been practiced by the defendant. On the trial in the court below no...
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To this suit Gilbert Curtis and the JEtna Life Insurance Company were originally made defendants. The controversy grows out of a policy of insurance issued by the company upon the life of one A. W. Tucker. The complaint charges that the policy was issued upon the life of Tucker and delivered to one Esther Cordelia Curtis, who, it is alleged, paid the premiums thereon. It is not alleged to whom the...
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The complaint in this case was filed to obtain a decree reforming a deed executed by defendant to plaintiffs’ testator, so as to include a tract of land not included therein, and that said tract be conveyed to them in their representative capacity. The plaintiffs alleged that by the agreement of their testator and the defendant the tract was agreed to be embraced in the deed, and was omitted there...
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It is well settled that an applicant seeking to purchase land from the State must set out in his affidavit the facts required by the statute to be stated therein. (Botsford v. Howell, 52 Cal. 158; Hildebrand v. Stewart, 41 Cal. 387; Woods v. Sawtelle, 46 Cal. 389.) The statute under which the plaintiff’s application is made (Pol. Code, § 3443) requires the affiant to state, among other things, tha...
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The statute under which this action was brought —act of March 20, 1878 (Stats. 1877-78, p. 360)—makes the defendant liable for the acts charged in the complaint and proved and found against him in the court below; that is to say, the willful entry by the defendant, with cattle and horses, upon land belonging to and in the possession of the plaintiff and depasturing the same to plaintiff’s damage. ...
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I dissent. In one part of the charge of the court this language occurs:— “ The guilt of the prisoner rests upon evidence of his own declarations, also evidence tending to show that the dead body of the deceased was found with marks of violence and wounds upon it, and other circumstances tending to connect the defendant with the cause of her death. “ The conclusion that the prisoner is the person w...
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—In this cause, the opinion of the Department (Two) will stand as the opinion of the court. We add this further remark: The decree cannot be said to be without jurisdiction. It may have been made by consent of the plaintiffs themselves. The defendants being innocent purchasers for value of Cobb, the judgment and order must be reversed, as directed in the opinion of the Department. We do not see th...
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In examining this cause, we cannot come to the conclusion that the court below abused its discretion in dismissing the proceeding, which was brought by certain creditors of Kornahrens, to have him adjudged an insolvent, and that a surrender of his property be made for the benefit of his creditors. The order of 13th of December, 1879, that Kornahrens show cause on the 29th of same month why he shou...
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Finding 3 is not sustained by the evidence. The evidence of B. F. Burt, one of the plaintiffs, found on page 44 of the transcript, shows that when the account was opened with Collins the object of using the firm name of G. A. Collins & Co. was for the personal convenience of Collins in his subsequent settlement with the herders and Mrs. Bouton, and not with the expectation that the account was the...
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In an action to foreclose a mechanic’s lien, Erlanger and Jacob were made parties defendant— Erlanger as the contractor for whom the work was done and to whom the materials were furnished, and Jacob as the person claiming the property sought to be charged with the lien. To the original complaint Jacob demurred, but Erlanger made no appearance and his default was duly entered. Subsequently, the com...
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—We think the city and county of San Francisco had such proprietorship of the city and county hospital as rendered it liable for damages in the case as presented in the transcript. We also think the claim of plaintiff was not a claim to be presented to the board of supervisors before an action could have been maintained. Judgment and order affirmed....
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We have read the record attentively, and find no evidence to support the finding of the court below, to the effect that the plaintiff acquired the right to divert from the stream mentioned in the record one hundred inches of its water, measured under a four-inch pressure. The judgment securing him that right, as well as the order refusing the defendant a new trial, must therefore be reversed. Judg...
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This isan application for a writ of mandate requiring the respondent, as judge, and the court in which he presides, to proceed with the trial of a case. Eleanor Murdock, as administratrix of her deceased husband, commenced an action against the petitioners herein, as defendants, for an accounting, by reason of matters set forth in her complaint, and to obtain a decree that the said defendants conv...
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Appellant insists that it is essential to the validity of a summons that the name of the plaintiff’s attorney be indorsed on it. The Code provides that “the name of the plaintiff’s attorney must be indorsed on the summons.” (Code Civ. Proc. § 407.) There was not in this case a literal compliance with that provision. The name of the plaintiff’s attorney appears on the face and not on the back of th...
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Lukes sued J. Bernheim and others in the superior court for the county of Santa Cruz, and on his demand a jury was called and impaneled. The trial of the cause proceeded for five days before the court and jury, and the jury, failing to render a verdict, was on the 19th of *284October, 1883, discharged. The court entered an order that the plaintiff pay the jury fees, amounting to one hundred and tw...
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In this case suit was brought January 24, 1877, by the United States upon the bond of Yirgil S. Eggle-ston, upon which A. H. Eobie was surety. The defendant A. H. Eobie died some time previous to the November term of the district court for Ada county, 1878. At said term, at the suggestion of his death by attorneys for both parties, his administrator, John Hailey, was made a party to the suit, and ...
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Although the defendant pleaded not guilty to the charge of murder, he did not attempt on the trial to controvert the fact that he actually killed the deceased. He endeavored then to prove that the homicide was committed in self-defense, and justifiable. He now claims that this was so clearly proven as to justify this court in reversing the judgment on the ground that the verdict of the jury, which...
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The original transcript did not show that the notice of appeal was served on the plaintiff’s attorney of record, and a motion to dismiss on that ground was made by said attorney. When the motion was called up, the defendant’s attorney suggested diminution of record, and asked and obtained leave to file a certificate of the clerk of the court below showing that proof of service of said notice on pl...
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February 28, 1876, the following legislative act was approved by the governor: — “ Section 1. The county clerk of Humboldt shall receive for all services required of him as county clerk and ex-officio clerk of the District Court, Probate Court, board of supervisors, board of equalization, auditor, and ex-officio county recorder, a salary of $5,000 per annum, which salary shall be in full for all s...
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The appeal is by plaintiff from a judgment and order denying a new trial in an action of “ejectment.” The complaint is in the usual form; the answer denies the averments of the complaint, and avers that the cause of action is barred by sections 318 and 319 of the Code of Civil Procedure. A jury having been waived, the action was tried by the court. -- Within thirty days after the cause was submitt...
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The defendant and plaintiff’s intestate were partners, and the complaint is filed to obtain an accounting and settlement of the partnership affairs, the plaintiff alleging that there is due from defendant the sum of $3,192.22. An accounting was had, and the court found a balance of $265.90 due plaintiff, for which judgment was rendered. In arriving at this conclusion, the court heard evidence rega...
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The petitioner, at a general election held in the city and county of San Francisco, November 7, 1882, received votes for supervisor, first board, and he claims that under the clause of section 7, article 11, of the constitution of 1879, which reads as follows: “In consolidated city and county governments of more than one hundred thousand population, there shall be two boards of supervisors or hous...
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The defendant was informed against in the Superior Court of the city and county, of San Francisco, and *108on the trial was found guilty of the crime of robbery. On his appeal several errors were assigned, which we will briefly consider in their proper order. First—It was claimed on motion to set aside the information, that the trial court had no jurisdiction, and this pretension is based on the g...
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The defendant was found guilty of murder in the first degree and sentenced to be hanged. The appeal is from the judgment. In his behalf it is contended, first, that the court below erred in permitting private counsel to assist the district attorney in the prosecution of the case. The practice allowing district attorneys to have the assistance of other counsel in the prosecution of criminal cases h...
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Among the provisions of the present Constitution of this State are the following: — “The legislature shall establish a system of county governments which shall be uniform throughout the State; and by general laws shall provide for township organization, under which any county may organize whenever a majority of the qualified electors of such county, voting at a general election, shall so determine...
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Defendant was indicted and tried for the larceny of one hundred and five dollars, the personal property of one Henry Williams. On the trial the person to whom the money was alleged to have belonged was examined as a witness and testified, among other things, that his name was Henry Williams. In due course the defendant was convicted, and afterwards moved for a new trial on the ground of newly disc...
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This is a motion to dismiss an appeal by defendant from a judgment of the Superior Court, affirming a judgment of the Police Court, adjudging the defendant guilty of a misdemeanor, and imposing a fine of fifty dollars. The case is not “a criminal case prosecuted by indictment or information in a court of record.” (Const, art. vi. § 4.) This court has no jurisdiction. The appeal is dismissed....
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The information accused the defendant of the crime of grand larceny, and on being arraigned the defendant pleaded “not guilty,” and “once in jeopardy.” At the trial evidence was given for the prosecution and for the defense; but none of the evidence relates to the plea of once in jeopardy. After the district attorney had begun his opening argument to the jury, and was about to close, defendant’s a...
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The information accused the defendant and one Donovan of the crime of grand larceny. That the defendant Grider took the money from the pocket of Carmody when the latter was intoxicated is admitted. The proposition of Grider was that certain persons engaged in a “game” were endeavoring to obtain the money by means of the game, and that he (Grider) took it as a friend of Carmody to protect it for hi...
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Application for a writ of mandate. We are of the opinion that the writ should not issue, so long as the judgment stands; the judgment is not void on its face. The petitioner should procure the judgment to be set aside before making his application for mandamus. Writ denied....
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We think the evidence is sufficient to justify the finding that the transaction between Alvarado and plaintiff was fraudulent and void as to the creditors of the former. Judgment and order affirmed....
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This court has no jurisdiction of this appeal. Appeal dismissed....
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The complaint shows upon its face that the plaintiffs, at 12 o’clock M. on the first Monday in March, 1883, had in their possession some personal property belonging to citizens of the city and county of San Francisco which was subject to taxation, and that after demand made upon them by the assessor of *107that city and county they refused to disclose the names of the owners or the description of ...
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The defendant, sheriff, in his answer justified the taking of the property in controversy by virtue of *287an attachment issued against the property of plaintiff’s vendor. There is no finding on the issue raised by the answer as to the averments in justification; the findings are silent upon this subject. Judgment and order reversed....
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The defendant was convicted of the crime of murder, and having appealed to this court, presents several grounds of error, which he claims were committed by the court below. 1. On the trial of the case, one Maud Parsons was called as a witness on behalf of the defense^ and on her cross-examination was asked the following questions: — Q,.—Did you know of Mr. Bush’s going to shoot Mr. Ivy (the deceas...
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The only question presented by the record on this appeal is whether the findings support the judgment. We think they do Judgment affirmed. We dissent: McKinstry, J.; Ross, J....
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The defendant Avas prosecuted by information filed in the Superior Court of Santa Clara County, for the murder of one Archibald McIntyre, and a change of Avenue having been granted him to the county of Alameda, he Avas tried and convicted there of the crime of murder in the first degree. The appeal is from the judgment against him in the first-named court on the plea of former conviction, as Avell...
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—The court erred in admitting evidence of a statement made by Pinkston, the person alleged to have been robbed by the defendant, to the witness Dallas. The statement *136was not made in the presence of the defendant, and there is nothing in the record which shows that it was anything more than a mere narrative of a past occurrence. It was an isolated conversation held between Pinkston and the witn...
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The court did not, as appellant’s counsel claims, “charge the jury that under the information their verdict must be either guilty of robbery, guilty of grand larceny, or not guilty ”j but did charge them that they might find a verdict of guilty of either of the offenses above specified, or might find a verdict of acquittal, as they deemed proper. The jury were not told that they could not find any...
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The findings are supported by the evidence; no error appears in the record. It appearing to us that the appeal was taken for delay, the judgment and order are affirmed, with seventy-five dollars damages....
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In this cause defendant moved for a new trial on the ground, inter alia, of newly discovered evidence. We have examined the affidavits as to such newly discovered *295evidence, and think that they bring the application within the rules of law and that defendant should have a new trial. The judgment and order are reversed and the cause remanded that it may be tried anew....
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Jurors not having been drawn or summoned to attend the session at which this action was tried, the court was authorized to order a sufficient number to be forthwith drawn and summoned to attend court, or by an order entered in its minutes to direct the sheriff forthwith to summon so many good and lawful men of the county to serve as jurors, as might be required. (Code Civ. Proc. § 226.) The court ...
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1. Appellant claims that the court below had no power to set aside the verdict of the jury, and to find the facts. The substituted cross-complaint contains a statement of facts constituting a cause of action in equity. It was a complaint to foreclose a mortgage of personal property given to secure the payment of a promissory note therein set forth. The court was justified in treating the findings ...
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The return to the writ of review shows that in the action, County of Yuba v. Golden Gate Consolidated Hydraulic Mining Company, an injunction was issued, esc parte, commanding the defendant, its officers, agents, servants, etc., until the further order of the court, “to desist and refrain from depositing or suffering to flow into the channel or bed of the Yuba River, or into the channel or bed of ...
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—This is an action of ejectment to recover the possession of certain lands and premises, ten thousand dollars damages for the use and occupation, and damages caused by the loss of the value of the rents, issues, and profits, at the rate of tAvo hundred dollars per month from the 9th day of November, A. D. 1880. The court below gave judgment for defendants, from Avhich plaintiff appealed. *177The f...
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On the 1st day of May, 1865, Ann Wasson, then a widow with a child by a former husband, entered upon and took possession, under color of title, of “lots numbers 1, 2, 3, 4, and 5, in block number 47, as laid out and designated on the official plot of the town-site of Red Bluff, now on file in the office of the county recorder of the county of Tehama.” Upon these premises she had a small dwelling-h...
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This is an application for discharge on habeas corpus, founded on the following state of facts : — On the 25th day of September, 1883, a complaint was filed before one Emil Nusbaumer, a justice of the peace of Oakland township, charging the petitioner with the crime of murder, and thereupon he was arrested on the following day, and taken before the magistrate issuing the warrant, by whom an order ...
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The plaintiff brought this action to recover the possession of four thousand four hundred and fifty-five sacks of wheat, seven hundred and sixty-four sacks of barley, and two hundred and thirty head of hogs. In his complaint, which was verified, he alleged that he was the owner of the grain and hogs, and that defendant had, without his consent, taken the said property into his possession, and cont...
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The defendant was convicted of the crime of murder of the second degree, and was sentenced to imprisonment for life in the State prison. The killing occurred in the town of Turlock, in the county of Stanislaus, on the 12th day of August, 1883, under circumstances substantially as follows: The defendant, Albert Case the deceased, and several others, were in a saloon kept by one Ross, at the hour of...
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This is an appeal taken by the people from an order of the superior court granting the defendant a new trial, after he had been found guilty of the crime of embezzlement. The learned judge who tried the case and heard all the evidence was not satisfied with the verdict of the jury, and therefore set the same aside and granted a new trial. There was a conflict in the evidence, and we are not dispos...
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The assignments of error which have been argued upon this appeal are: (1) That the complaint does not contain facts sufficient to constitute a cause of action. (2) That the court erred in admitting in evidence, against defendants’ objections, the record of a former judgment. 1. The complaint is not artistically drawn; yet, in its verbiage, the following facts, although defectively and illogically ...
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This is a proceeding, under section 287 and following sections of the Code of Civil Procedure, to remove or suspend an attorney and counselor of this court. The accusation was made in due form, and, being wholly denied, a reference was made under section 298 to William Craig, Esq. Mr. Craig has. filed his report, accompanied by the evidence taken by him in support of the accusation, as well as tha...
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—If (as alleged in the amended answer), all the right, title, or interest of plaintiff to the demanded premises was acquired from the Lodi mill and warehouse company, after the execution and registration of the five years’ lease by that *162company to Ellis, the entry of Ellis thereunder, and the occupation of defendant with the consent and approval of Ellis and the company, these facts would have...
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—1. It is urged by appellant that the respondent cannot claim to be a purchaser in good faith and for a valuable consideration, because the cancellation of a pre-existing indebtedness is not a valuable consideration within the meaning of section 1214 of the Civil Code. But it is the law of this State that such pre-existing debt is a valuable consideration. (Frey v. Clifford, 44 Cal. 335.) 2. It is...
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—If giving notice of appeal and filing a bond would have stayed execution of sentence pending the appeal, it is sufficiently clear that on the dismissal of the appeal the petitioner herein might have been recommitted to prison. This is not disputed. But it is claimed that the appeal did not stay execution because there was no “certificate of probable cause,” such as the Code requires in order to h...
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I concur in the judgment, and in what is said by Mb. Justice Boss with respect to the indebtedness of the corporation when the assessment was levied. With respect to the power of the corporation to levy the assessment, even construing section 332 of the Civil Code as containing limitations upon the power conferred by section 331, yet the assessment in question was legal, inasmuch as it and the pre...
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—The order of a board of supervisors, creating a district for the reclamation of swamp land, is an act of legisla*161lion, in the exorcise of the taxing or police power of the State, which is not reviewable upon certiorari. (Bixler v. County of Sacramento, 59 Cal. 700.) The writ of certiorari is, as a remedy, only available for the review of an act judicial in its character. Judgment reversed and ...
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On the 21st day of June, 1882, plaintiff and the defendant’s intestate, William Jarvis, executed the following instrument in writing: — “ This indenture, made and entered info this 21st day of June, 1882, by and between William Jarvis, of the county of Sacramento, State of California, party of the first part, and Mrs. J. L. Conner, of the city and county of San Francisco, State of California, part...
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A verdict finding the defendant guilty of the crime of forgery was returned and entered in the Superior Court of the city and county of San Francisco, on the 25th day of October, 1883. The court thereupon appointed October 27, 1883, as the time for pronouncing the sentence of the law; and on the said 27th day of October sentenced the defendant to imprisonment in the State prison at San Quentin for...
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In this action (ejectment) the complaint is in the usual form, and the answer denies that the plaintiff was seised in fee or in any other estate or entitled to the possession of the premises; or that the defendants wrongfully withhold the possession from him, or that he was damaged in any sum whatever thereby. On the trial the plaintiff introduced in evidence the judgment-roll, showing a judgment ...
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Application for writ of habeas corpus. The petitioner was accused and convicted of a battery, and the court rendered the following judgment:— “ In the court of the justice of the peace for the township of Los Angeles: In the county of Los Angeles, State of California: R. A. Ling, J. P. “The people of the State of California, to the sheriff of the county of Los Angeles, greeting. “ Whereas, John Ke...
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The defendant, George Pierson, was indicted, tried, and convicted at the October term, A. D. 1882, of the district court for Alturas county, for the murder of John T. Hall, at Vienna, in said county, on the twenty-fifth day of August, 1882. The case is brought to this court by •an appeal from the judgment. In the argument of the ease considerable time was occupied in the apparent effort to show th...
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On the twenty-fourth day of November, 1882, the plaintiff in error was indicted for murder in the first degree, the indictment charging him with the murder of one Elmira L. Curliss, in Laramie county, on the eighth day of October, 1882, by choking, suffocating, and strangling her with his hands. On the plea of “not guilty” the plaintiff in error was put on trial in the district court of the First ...
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On the tenth day of January, A. D. 1884, at this term of the court, as the court was proceeding to hear this case upon its merits, the fact was made to appear that no abstract of the case, as required by rule 12 of this court, had been printed. Rule 12 reads: “No case will hereafter be heard by this court until the appellant or plaintiff in error shall deliver to the clerk of the court fourteen pr...
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This is an attempted appeal from an order made and entered May 29, 1883, restoring respondents to possession of a tract of land from which they had been dispossessed by the sheriff by the execution of a writ of possession which had been issued upon a judgment in favor of the plaintiff (who is the appellant) against one Thomas J. Currey, for the recovery of said land and costs. In the transcript wh...
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The complaint alleges that plaintiff is the owner and in possession of the easterly 11 42-100 acres of the Colonel Limberger Placer Mine, and that defendant claims an estate or interest therein adverse to the plaintiff, which claim is without right, and that defendant has no estate, right, title, or interest in the said 11 42-100 acres, etc. A general demurrer to the complaint was sustained by the...
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Motion to dismiss appeal of defendant from an order denying his motion for a new trial. The court did not exceed the power given to it by section 1054 of the Code of Civil Procedure, in extending the time of defendant to prepare and serve the bill of exceptions filed in this case, thirty days in addition to the ten days for preparing and serving such bill allowed by section 659 of same Code. (See ...
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This is an action to condemn a parcel of land to the use of plaintiff as a public street. The complaint contains an averment “that said defendants are the only owners or claimants of the premises hereinafter described and sought to be condemned.” On the trial the court permitted the plaintiff to give evidence tending to show that the defendant E. P. Reed had dedicated the land to the public as a s...
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On a former appeal in this case we held that no recovery could be had in the action out of which the case arises, because there was no averment and no proof that the claim of the plaintiff had been presented to the board of supervisors of the city and county of San Francisco, as required by the statute of 1863—64, pp. 152, 153, and payment demanded; and because the undertaking itself upon which th...
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This is a motion by the plaintiff that a writ of mandate issue according to the judgment of this court. On the 17th of November, 1882, this court rendered judgment in favor of plaintiff that it was entitled to a writ of mandate as prayed for. A petition for' rehearing was denied December 16, 1882. The defendant moved for a new trial, which was denied November 27, 1883. A writ of error for the remo...
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It is contended by appellant that the court had no power to order that all persons be excluded from the court-room, except the judge, jurors, witnesses, and persons connected with the case. The Constitution of the State provides that every person accused of crime shall have the right to a public trial. (Const, art. i., § 13.) *224Non constat, but defendant (who was charged with adbucting a chaste ...
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This is a motion to dismiss appeals from the judgment and from an order denying a motion for a new trial. The judgment was entered December 6, 1882, and the order denying a new trial April 11, 1883. The notice of appeal was filed December 3, 1883, more than sixty days after the order was made and entered. The appeal from the order must be dismissed. (Code Civ. Proc. § 939.) A notice of appeal from...
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The information charges a burglary,, in that the defendant, etc., did feloniously, etc., enter “the building, to wit, the ticket office of the Central Pacific Railroad Company, a corporation,” etc., with intent then and therein to commit larceny. The evidénce showed that the outer door of the house at the railway station led into a waiting-room for passengers, and in this room was a door leading i...
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—The plaintiff had a contract for the construction of asphaltum sidewalks on Montgomery Street, between Jackson and Pacific Streets, in the city and county of San Francisco. On streets not accepted the expense of constructing and repairing sidewalks is to be borne by property owners; on accepted streets the expense is to be borne by the city and county. Before the commencement of the proceedings r...
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This is an appeal from an order settling an account of an administrator. 1. J. W. Parsons was appointed administrator, and subsequently thereto a document was offered for probate as the will of deceased. Said J. W. Parsons contested the probate of the document and the court adjudged it not to be the will of said deceased. In and about such contest, said J. W. Parsons employed attorneys (the same w...
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—Counsel for defendant asked the court to ■ charge the jury:— “If you believe from the evidence that the defendant James Keefer was not present when the Chinaman Lee Yuen was killed by Chapman, and did not aid and abet in the killing, and that defendant, at the time or prior to the killing, had not conspired with Chapman to commit the act, and that he had not advised and encouraged Chapman therein...
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delivered the opinion of the court. The primary question involved in this-case is,'whether, subsequent to the husband and wife act of 1879, the plaintiff in error, being a husband, could, without his wife joining, make a valid contract to sell to defendant in error community property. By the provisions of the husband and wife acts passed in 1879, and previously, the husband and wife are considered...
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—In November, 1867, Henry Brickwedel was appointed by the Probate Court of Sutter County guardian of the persons and estate of Delia and Augusta Allgier, then the infant heirs at law of Nicholas Allgier, deceased. The appointee qualified, took charge and control of his wards and"'of their estate, and continued in office until the day of his death. He died in the month of April, 1883, without havin...
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1. The court below found there was not an immediate delivery, and actual and continued change of possession to and in plaintiff, of the goods demanded in this action, and this is not contradicted by the other findings. 2. Appellant contends the judgment should be reversed because neither it nor any finding determines the value of each article sued for separately. In support of this contention appe...
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On August 28, 1882, an information was filed in the superior court of Fresno county against Patrick Big-gins, charging him with having committed the crime of murder. Upon demurrer it was held to be defective, and, by direction of the court, a new information was filed, to which a demurrer was interposed, which was overruled, and the defendant then entered a plea of not guilty; hut upon the day fix...
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Two appeals have been taken in this case. One by the defendant Afflebach, from the judgment and order denying a motion to amend the findings and judgment; and the other by the plaintiff Seré, from the judgment and order denying his motion for a new trial. The judgment was rendered in an action for the settlement of a partnership which had existed between the plaintiff Seré and the defendant McGove...
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The substantial point in this controversy is thus stated by appellant in his points: “Did the defendants agree with plaintiff to make title to the land in him, and have they performed their agreement 1 And if not, should they be compelled to do sol” The court below, in its opinion, used the following language: “To hold in the case at bar that the plaintiff may purchase from the parties to this con...
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There is no such office as “police justice of the city of San Jose”; therefore, the defendant could not have usurped, intruded into, or unlawfully held or exercised that office. Conceding the act to be unconstitutional which in terms confers jurisdiction on justices of the peace in cities of more than ten thousand inhabitants which other justices of the peace do not possess, the exercise of such a...
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The plaintiff is a banking corporation, and the defendant, from the 30th day of March, 1868, to March 17, 1877, was its cashier. By the by-laws of the bank the president and cashier were each empowered “to discount bills, notes, or other evidences of debt, to buy and sell bills of exchange, to make loans with or without security .... and generally to transact and carry on the business of the bank,...
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Appellant says plaintiff and the grantor of defendant were not tenants in common because their grantor —Evans—had no estate or interest in the premises, founded upon title or rightful possession. But Evans had actual possession and delivered such possession to his grantees. In ejectment neither is plaintiff called on to show a right of possession in a person from, whom both he and defendant deraig...
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—The action is to enjoin defendant from executing to the purchaser a deed of certain real property, alleged to belong to plaintiff, and to have been sold by defendant as property of plaintiff’s husband. The defendant’s demurrer to the complaint should have been sustained. The allegation that the deed, if executed, will be a cloud upon plaintiff’s title, is merely a legal conclusion. There is an al...
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The action is for an injunction to prevent defendant trespassing upon plaintiff’s land, and for damages. The defenses are that defendant has a right of way through the *251plaintiff’s lands; and that a highway or public road runs though them, upon which alone defendant has passed and threatens to pass. “Prescription” is not a term strictly applicable to a right acquired by the public by the use of...
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The decision may be set aside and anew trial granted for certain causes. (Code Civ. Proc. §§ 656, 657.) The “ decision ” consists of findings of fact and conclusions of law. (Code Civ. Proc. §§ 632, 633.) In the transcript before us the notice of intention to move for a new trial is, “the attorney for the plaintiff will take notice that the defendant intends to move the court to vacate and set asi...
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It appears by the record that the court commenced its charge to the jury with the statement that the defendants were charged with the crime of burglary, and then read the statutory definition of the crime. At the request of defendant’s counsel, the court instructed the jury that, “ unless you (the jury) find that the defendants, at the time they entered the house referred to, had in their minds th...
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Appellant urges that the court found, against the evidence, that the executor was to be charged with seventeen and three-quarters acres of land, “a little more or less”; that the court finds, and “there is no dispute,” that Pagels bought the two-acre piece; that one acre was washed away without the fault of the executor; and that “there was no dispute” but the railroad purchased four and one-half ...
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The action is brought by the sheriff to recover $321.30, as “mileage” for traveling “to serve warrant of arrest” on one charged with felony. Plaintiff relies upon the provision of the statute, which reads as follows: — “For every mile necessarily traveled, in going only, in executing any warrant of arrest, subpoena or venire, bringing up a prisoner on habeas corpus, taking prisoners before a magis...
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—1. It would seem to be the theory of plaintiff, the appellant, that the conveyance by Alvord transferred only the title acquired through the decretal sale based upon the foreclosure of the second mortgage; that is, the title of defendant subject only to the lien of the prior mortgage. Inasmuch as the original scheme fell through; by reason of the failure effectively to organize a new corporation,...
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The court found that in a verbal agreement made prior to the execution of the written instrument, which this action was brought to have reformed, “it was stipulated that the defendant should pay plaintiff interest on seven thousand dollars at the rate of one per cent per inonth,” and that the plaintiff believed, at the time of signing said instrument, that it contained that stipulation, and that d...
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—Four several promissory notes, together with a mortgage to secure their payment, were executed by T. F. Purrington to one Sutton. One of the notes was for $1,500, payable three months after date, another was for $1,000, payable one year after date, another was for $1,000, payable two years after date, and the fourth was for $3,000, payable three years after date. The $1,500 note was paid. The $3,...
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In this case the defendant was convicted of grand larceny. He moved for a new trial. The motion was denied, and from the judgment of conviction and the order denying a new trial he has appealed. The larceny is charged to have been committed on Sunday, April 1, 1883. It consisted of the stealing of a calf from the custody of its alleged owner. The principal evidence connecting the defendant with th...
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The action being for the price and value of wood, defendant, under the general denial, might have shown that the wood was not of the value alleged in the complaint. He aimed, however, at something beyond that, and attempted to establish a case which would entitle him to “ a fair compensation for the loss incurred by an effort in good faith to use it,” for the purpose of burning bricks in a kiln, o...
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It is insisted on behalf of the respondents that the demurrer to the petition was properly sustained:— First— Because it is not alleged that it is necessary to take the property sought to be condemned, for any municipal or public use. It is alleged “that the council of said city, on the 4th day of November, 1882, duly passed and adopted an ordinance in writing,” directing proceedings to be taken t...
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The taxes became delinquent upon the 26th day of December, 1882, and the five per cent to be collected on the amount then became due. The present action was brought by the district attorney on the 29th of the same month, and before the time fixed by law for the certification of the delinquent *283list. Before the date last mentioned, the defendant paid to the tax collector of the county the full a...
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The findings in this ease are indefinite, and are inconsistent with each other and with the averments of the complaint. Judgment reversed and cause remanded, with leave to the plaintiff to amend her complaint if she shall be so advised....
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The defendant was convicted of a mis-r demeanor, in violating order 8 of the board of supervisors of Butte County, and fined in the sum of one hundred and fifty dollars. He was charged with carrying on the business of retailing spirituous liquors without having first procured a license for that purpose, as required by order 8 of the board of supervisors of the proper county. It was claimed, on the...
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The superior court having jurisdiction of the estate of the insolvent, Baeher, and of all persons interested in it, it is clear that the order of that court directing the assignee to pay out of the estate certain sums of money, if erroneous, was not in excess of its jurisdiction. Writ denied and proceedings dismissed....
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This is a contested election case. The court below found that the vote, as between the contestant and respondent, was a tie vote, and thereupon rendered judgment in favor of respondent, and for his costs. Under sections 1114 and 1122 of the Code of Civil Procedure, judgment in a contested election case, is authorized to be one of three, viz: — 1. Of dismissal, if the statement of the cause of cont...
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The appeal of the executor from the decree of settlement and distribution must be dismissed. He cannot in any case litigate the claim of one legatee as against the others at the expense of the estate. (Bates v. Ryberg, 40 Cal. 463.) A fortiori when he himself is the legatee whose claim he is attempting to maintain, at the expense of the estate, in his capacity of executor. Appeal dismissed. Morris...
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delivered the opinion of the court. In this ease we are of the opinion that the guardian of the plaintiff being dead, he would be without any adequate remedy unless he can maintain his suit against the executor. (Pedeman, Adm’r of Robb, 8 Ohio, 227.) The judgment of the District Court in sustaining the demurrer to plaintiff’s complaint is therefore reversed, and the cause is remanded for further p...
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This action was commenced in the district ■court of the third judicial district, in and for Lemhi county, and afterward transferred to Custer county, in the same district, for trial. The complaint alleges that the plaintiff is a corporation organized and existing under the laws of the state of Nebraska for the purpose of mining, smelting, and refining *28and marketing tbe products thereof, and the...
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MEMORANDUM OPINION AND ORDER I. INTRODUCTION Appellant Tony Divino Enterprises, dba Toyota Lincoln Mercury of Ogden (“Devi-no”), appeals the order of the Honorable Judith A. Boulden, United States Bankruptcy Court, granting Appellee Barbara Langston’s (“Langston”) motion to dismiss Divino’s adversary proceeding for failure to timely serve the Summons and Complaint as required by Fed.R.Civ.P. ...
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208 P.3d 526 (2009) 228 Or. App. 329 STATE of Oregon, Plaintiff-Respondent, v. Richard Dale PARTAIN, Defendant-Appellant. Nos. 03P3038, A132336. Court of Appeals of Oregon. Argued and Submitted October 30, 2008. Decided May 13, 2009. *527 Ernest G. Lannet, Deputy Public Defender, argued the cause for appellant. With him on the brief was Peter Gartlan, Chief Defender, Legal Services Division, Offi...
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