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Opinions in p Volume 34

The relator applies to this court for a peremptory writ of mandamus commanding the state auditor to draw a warrant in his favor on the inspection fund in the state treasury. The cause was submitted upon the petition for the writ and the demurrer thereto. The relator Ijams is the duly and regularly appointed, qualified and acting secretary of the board of the live stock commissioners, a commission ...
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This proceeding was reserved by the district court of Sheridan County for the decision of this court, under the statute, providing that when an important or difficult question arises in an action or proceeding pending before the district court in any county of this Territory (State) the judge of said court may on motion of either party, or upon his own motion, cause the same to be reserved and sen...
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delivered the opinion of the court: The only question necessary to consider on this appeal is one of jurisdiction, and notice to interested parties; for if the city had power to make the improvement, and in doing so violated no express provision of its charter, and *507the abutting property owners had notice of, and an opportunity for, a hearing upon the question as to the proportionate share of t...
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delivered the opinion of the court: 1. The objection to the jurisdiction, presented by the demurrer, is based on two grounds: First, that the plaintiff has a plain, and adequate remedy at law; and, second, that the suit was not brought within the county in which the land is situated. Upon the first point the contention is that the facts show that the only relief sought is a money judgment, and hen...
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delivered the opinion of the court: The appeal presents the following questions: Was the hazard increased by the construction of another building after the policy was issued? Was the house unoccupied at the time of the fire, and had it been so unoccupied for more than ten days prior thereto? Was the proof of loss waived by the insurance company? We do not deem it necessary to examine the first que...
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delivered the opinion of the court: The specific performance of a building contract will rarely be enforced (Pomeroy, Specific Performance, § 23) upon the theory, as announced by Sir Lord Kenyon, master of the rolls, in Errington v. Ainsley, 2 Brown, Ch. 341, “that if one person would not build, another might be found who would,” and for the reason given by Lord Thurlow in Lucas v. Commerford, 3 B...
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This is a suit to establish plaintiff’s right, as heir of Berryman Jennings, deceased, in certain real estate held by the defendant Addie C. Jennings. The facts are that on the seventh day of December, 1870, Berryman Jennings, the father of the plaintiff and the said Addie, being the owner of the land in controversy, conveyed it by warranty deed to J. C. Ainsworth as security for the sum of six hu...
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delivered the opinion of the court: This is an action upon a judgment of the district court obtained in the state of Iowa. The plaintiff alleges, in substance, that on the second day of September, 1891, in an action wherein William E. Foshier, the plaintiff herein, was plaintiff, and the defendant John Narver, was defendant, a judgment was rendered by said court in favor of this plaintiff and agai...
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delivered the opinion of the court: The facts in this case are that in the year 1867, one Jacob Westenfelder died intestate, seized of the property in question, leaving two minor children by a woman whom he represented to be his wife, and with whom he lived and cohabited as such in Oregon, but who died prior *449to his death; that shortly after his death one J. E. Sedlack was duly appointed guardi...
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It is pleaded, it is adjudged by the court, it is not specified as error, and it is relied upon in argument on both sides, that the deed made by Largey, purporting to be the deed of the Butte Hardware Company, was and is void. We will therefore start with the foundation that the deed was a nullity. When that pretended deed was made, the Butte Hardware Company owned a one-eighth interest in the Yel...
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This appeal is from the judgment of the district court made upon the hearing of the application of Evalena Newell for a writ of habeas corpus. The proceeding was brought by the relator to obtain possession of her infant child, of the age of nine months. The respondent is relator’s husband. They were living separate and apart, the wife being at the home of her parents. The district court, by its ju...
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We think under the facts shown in this case the premises in question were properly held to constitute defendants’ homestead. The important question of law involved in this appeal is whether a homestead is exempt from foreclosure and sale to satisfy a lien created by law in favor of one who furnishes materials purchased and used by the owners of such homestead in the improvement thereof. It is not ...
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I concur in the affirmance. My views were fully expressed on the former appeal. (Mattock v. Goughnour, 11 Mont. 265.)...
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This is a suit for damages for personal injuries. The appellant, who was plaintiff below, alleges in his complaint that he is a skilled carpenter; that on March 5, 1891, he was employed by respondent to work on its mill at Great Falls; that on the twentieth day of March, 1891, while *290engaged at work handling heavy plank on the third story of respondent’s said mill, he fell to the floor below, b...
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The respondent contends that this contempt proceeding is not reviewable in this court on certiorari, but that contention seems to be disposed of by the following eases: In re McCutcheon, 10 Mont. 115; In re Shannon, 11 Mont. 67; In re MacKnight, 11 Mont. 126; 28 Am. St. Rep. 451. We proceed to the merits of the application. The statement of case above recites what the testimony before the court te...
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The opinion of the court was delivered by This was a proceeding in the nature of a quo warranto to remove the appellant from the office of county clerk for wilful mal-administration in office. The information is filed by the county attorney, and charges in substance that the appellant Bradford is the regularly elected, qualified and acting clerk of Oklahoma county. That as such clerk it was his du...
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This is an action to foreclose a lien for street assessment in the city of Stockton. The plaintiff had judgment as prayed for in his complaint, from which judgment ,and from an order denying a new trial defendants prosecute this appeal. A demurrer was interposed hy defendants to the complaint upon the ground that the same did not state facts sufficient to constitute a cause of action, and upon the...
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Action to foreclose the lien of a street assessment in the city and county of San Francisco. At the trial the plaintiff offered in evidence the assessment, diagram, warrant, certificate of engineer, with the affidavit of demand and non-payment indorsed upon the warrant, to the introduction of which the defendants objected upon the grounds “ that the same were immaterial, irrelevant, and incompeten...
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This appeal is prosecuted by the defendant from a final judgment in favor of plaintiffs and comes up on a bill of exceptions. The action was brought by plaintiffs, *183factors and commission merchants at Yokohama and Hiogo, in the empire of Japan, to recover from the defendant, a merchant, in the city and county of San Francisco, $4,999.60 Mexican dollars, of the value of $4.149.67 gold coin of th...
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The plaintiff commenced this action in the ■ superior court of the city and county of San Francisco, to recover the sum of $382.25 alleged to be due for work, labor, and services rendered and performed by him for defendants at their special instance and request. The complaint was filed July 15, 1891, and on the 25th of the same month the defendants answered thereto denying that the defendants, or ...
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This is an appeal by certain heirs-at-law of E» O. Smith, deceased, from a probate order setting aside certain premises as a homestead to the respondent, who is the widow of the deceased. The facts necessary to be stated are these s The said premises consist of an ordinary city lot in the city of San Jose. It has a dwelling-house on it which covers nearly the entire lot | and in this house the dec...
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This is an action to recover damages for the breach of an express warranty of the merchantable char*491acter of certain dates sold by defendants to plaintiffs and paid for by plaintiffs at the contract price. Judgment went for plaintiffs, from which, and from an order denying a new trial, defendants appeal. We have considered carefully the oral and written arguments of counsel, and are satisfied t...
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This is an appeal by the defendant, the Bear Valley Irrigation Company, from a judgment in favor of the plaintiff in an action to enforce a mechanic’s lien, and from an order denying a motion for a new trial. It is averred in the complaint that appellant’s grantor employed one Stebbins to construct a certain telephone line, and that respondent sold and delivered to said Stebbins certain materials ...
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This is an action against McMann, as sheriff, and his co-defendants as sureties, upon his official bond, to recover possession of certain personal property taken by him as such sheriff under a writ of possession issued upon a judgment obtained by one Lee Chuck v. Quan Wo Chong Co., in an action of unlawful detainer, and by which writ the said defendant was commanded to place the plaintiff in that ...
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This is an action of ejectment. Defendants had judgment, and plaintiffs appeal therefrom and from the order denying their motion for a new trial. It appears that in April, 1873, William Marcellus Ord, the common grantor of plaintiffs, and the defendant, Anna E. Ord, conveyed by deed of gift to plaintiffs, who are the minor children of his brother, John S. Ord, certain property in Santa Cruz County...
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The plaintiff, while employed as a stevedore upon the defendant’s steamship Oceanic, on the 17th of November, 1889, fell through an open hatchway, breaking his leg and sustaining other serious injuries, and brought this action to recover damages therefor, alleging that they were caused by the negligence of the defendant. The jury rendered a verdict in his favor for three thousand dollars, and from...
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The plaintiff is the road overseer of Soquel Road District, in Santa Cruz County, and this action was commenced by him to have an obstruction placed by defendant in a public highway in that district abated as a nuisance, and also to recover from defendant the sum of ten dollars for every day the obstruction remained after he had received notice to remove it. The judgment of the superior court was ...
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This action was brought by the seller of a lot of potatoes to recover damages from the purchaser, who refused to receive them when tendered. A jury trial was had, plaintiff recovered judgment, and defendant appeals from the judgment, and from an order denying a new trial. The contract called for Early Rose merchantable potatoes. It is claimed that there was no evidence at all tending to show that ...
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Action in the nature of ejectment to recover possession of an undivided half of a parcel of land situate in the county of Santa Cruz, and containing about thirty-five acres, which plaintiff claims as a probate homestead. It is alleged in the complaint that the plaintiff is the owner, and entitled to the possession, of the demanded premises; that defendants are in possession, and wrongfully withhol...
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Consolidated actions to enforce liens of materialmen. Plaintiffs had judgment, and defendants Alice Kennedy and John F. Kennedy, the owners, appeal from the judgment and an order refusing a new trial. On September 26, 1889, Alice Kennedy, wife of said John F. Kennedy, entered into a contract in writing with Gray & Stover, of which firm the defendant Stover is the surviving partner, by which they w...
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Action to cancel a patent issued by the state of California, in 1876, to A. W. Macpherson for certain lands in Mendocino County. It is alleged in the complaint that the lands in question are agricultural lands which were listed to the state February 15, 1870, in lieu of a section 36, that section then supposed to be within the exterior limits of a reservation, but subsequently ascertained to be ex...
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This is an appeal from an order made after final judgment taxing' a cost bill, the whole amount of the bill being only $171.20. We do not think that this court has jurisdiction of the appeal, for the reason that the amount involved is less than $300. We strongly intimated this conclusion in SellieJc v. Be Carlow, 95 Cal. 644; and further consideration satisfies us that the intimations given in the...
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It is alleged iu the amended complaint in this case that, on the thirteenth day of August, 1887, the defendant executed and delivered to the plaintiff his promissory note and a mortgage on certain real property to secure payment of the same; that on the 15th of December, 1890, the plaintiff commenced an action against the defendant in the superior court of Ventura County to foreclose the said mort...
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The defendant is a corporation existing under the laws of this state, and belongs to the class known as mutual benefit associations. Uuder its constitution and laws it agrees to pay a stipulated sum of money to a designated nominee upon the death of the beneficiary member, and also issues to members known as “special benefit members” a certificate entitling them to receive an endowment, payable in...
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This is an action to recover damages alleged to have been sustained by the plaintiff by reason of the dangerous condition of a flouring mill conducted by defendants, and in which plaintiff was employed as a laborer at the time he received the injuries complained of. The plaintiff recovered judgment in the superior court for the sum of two thousand five hundred dollars, and the defendant appeals. T...
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The appellant was charged with and convicted of the crime of an assault with an intent to commit murder, the charge being that he committed the assault “ with a deadly weapon, to wit, a knife, upon the person of one Leong Ly Gimen”; and he appeals from the judgment and from an order denying a new trial. Appellant contends that the court erred in certain rulings touching the admissibility of eviden...
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The plaintiff in this action seeks to recover $1,807.25 upon a building contractors’ bond executed to him by the defendants Allspaugh and Hall as principals, and by the defendant Lundeen as surety. The bond sued upon was executed on October 15, 1887, and after reciting the fact that . the principals therein had upon October 14, 1887, entered into *453a contract with the plaintiff here to build for...
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This appeal is prosecuted from an order granting a family allowance to Florence Blythe. Upon the hearing of the petition for the allowance counsel for the applicant introduced in evidence the findings of fact, conclusions of law, and the decree heretofore made and entered in the action of Blythe v. Ayers, wherein it is found and adjudged that Florence Blythe is the lawful child and heir of Thomas ...
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Motion to dismiss the appeal. The appellant was sued in his official capacity as treasurer of *512the city and county of San Francisco, and has appealed from the judgment against him. Section 946 of the Code of Civil Procedure provides that the court below may in its discretion dispense with an undertaking on appeal, “ when the appellant is an executor, administrator, trustee, or other person acti...
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This is an action brought to foreclose a mortgage given by the defendants, George W. Roadhouse and wife, to secure a promissory note for $1,550 and interest, made by said defendants, Roadhouse and wife. The note and mortgage were dated March 25, 1885, and the note was payable to Frederika Palmtag, or order, one year after date. The action was commenced July 9, 1890—as may be seen, more than four y...
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This is a motion to dismiss an appeal because of the failure of defendants to file a transcript within the time prescribed by rule 2 of this court, and for damages. The appeal is from a judgment rendered against defendants for the sum of $1,233.35, and was perfected by the filing of an undertaking on appeal on June 24, 1893, and no transcript on appeal has been filed in this court; and it further ...
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In April, 1882, A. G. Anderson, the appellant’s interstate, being about to purchase a tract of land, made a verbal agreement with the plaintiff that the plaintiff should loan him $800 with which to make the purchase, and that the conveyance should be made by the vendor directly to the plaintiff, who should hold the title as security for the money so loaned, and also for all other moneys which he s...
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This action was brought to recover damages for the alleged diversion of water from a canyon onto the plaintiff’s land, through an artificial channel constructed by the defendant’s testator. The cause was tried by a jury, which rendered a verdict in favor of the defendant. A motion of the plaintiff far a new trial upon the ground, among others, that the verdict was contrary to the evidence, was gra...
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After a consideration of this case upon a hearing in Bank, we are satisfied that the judgment and order ■denying defendant’s motion for a new trial should be reversed. This action is to recover damages for personal injuries caused .'by an alleged wrongful and malicious assault made by defendant upon the person of plaintiff. The jury rendered a verdict for plaintiff in the sum of nine thousand doll...
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This appeal was taken by the defendant from the judgment and from the order refusing a new trial. It is an action to recover $675 for services as attorney at law, alleged to have been rendered defendant “between the first day of June, 1889, and the first day of June, 1891, in prosecuting and defending suits, and for like services, at his request, in drawing, copying, and engrossing of divers conve...
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Ejectment for land in San Mateo county. A certificate of purchase for the lands involved herein was issued to Benjamin S. Green by the register and receiver of the land office of the United States, March 5, 1863, and a patent therefor was issued to him August 1, 1871. April 21, 1869, Green and wife mortgaged the land to C. C. Wilson and J. P. Jourdan, and in an action for the foreclosure of this m...
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The defendant is an incorporated cable railway company, operating on Post street and certain other streets in the city of San Francisco. The plaintiff was a passenger on one of defendant’s cars, and, while attempting to *216alight from the ear at the junction of Post and Kearny streets, was thrown upon the pavement by the movement of the car and personally injured. This action was brought to recov...
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The complaint in this action alleges- that the defendants published in a certain newspaper, of and concerning the plaintiff, a false and malicious writing in. the- words following: — “Venality.—It is understood that the Electric-Improvement Company will put a large sum of money' into the fight to-day to corrupt voters. There are scores of voters.in every *434community that money can buy.....It is ...
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The opinion of the court was delivered by John Janzen made and delivered his promissory note to Charles M. Curtis, the respondent, for the sum of $324.75, and deposited with the agent of Curtis, as security for the payment of said note, a certain contract theretofore entered into between the said John Janzen and the Fairhaven Land Company, for the purchase by him, the said John Janzen, from the sa...
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The opinion of the court was delivered by The appellant was tried and convicted of maintaining a public nuisance, upon an information which, omitting the formal parts, was as follows: “Comes now K.. E. Moody, the prosecuting attorney of Jefferson county, State of Washington, and by this information informs against, charges and accuses Charles H. Brown of maintaining a public nuisance committed as ...
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The opinion of the court was delivered by Appellant was tried and found guilty of insisting an officer. The information on which the conviction was based is as follows: ‘ ‘ Comes now E. E. Moody, prosecuting attorney in and for Jefferson county, State of Washington, and by this information informs against, charges and accuses Charles Brown with the crime of resisting an officer, committed as follo...
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The opinion of the court was delivered by The judgment in this case was rendered under the authority of §1665, Code of Procedure, for *554failure on the part of the defendants to answer interrogatories served upon them by the attorneys for the plaintiffs. There is only one suggestion on the part of the defendants against the regularity of the proceedings leading to the rendition of this judgment, ...
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*559The opinion of the court was delivered by Appellant brought an action to recover the sum of sixteen hundred dollars from the respondents, being the consideration paid in part by himself, and in part by his assignor Savage, for several deeds of real estate in Douglas county. These deeds were in the usual form of warranty deeds, and contained a covenant of seizin in fee, and the facts appearing ...
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The opinion of the court was delivered by This is an action to foreclose a mortgage on real estate which was given to secure a note for four hundred dollars given August 7, 1890. The note was made payable on the first day of July, A. D. 1895, and bears interest at the rate of ten per cent, per annum, with a provision that it shall bear interest at the rate of four per cent, per month after maturit...
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The opinion of the court was delivered by 1. Th'e appellants now complain of the action of the superior court because of the manner in which it permitted the respondent to amend his complaint under the direction of this court in Bard v. Kleeb, 1 Wash. 370 (25 Pac. Rep. 467). The new complaint showed that the property covered by the contract had been delivered to the appellants, and had been by th...
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The opinion of the court was delivered by This is an action upon two fire insurance policies issued by the appellant to the respondent. By the first policy, the appellant, in consideration of §23.75 to it paid, insured, for a period of one year from and after May 6, 1893, certain described property, while contained in the saloon of the respondent in the town of Gilman, Wash., to an amount not exce...
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The opinion of the court was delivered by This is a petition for a writ of mandate to direct the superior court of Whatcom county to enter judgment, in the case wherein the Fairhaven Land Company et al. are plaintiffs, and E. C. Jordon, Carmi Dibble and James P. Demattos are defendants, in accordance with the opinion of this court, filed February 14, 1893 (5 Wash. 729, 32 Pac. Rep. 729). The acti...
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The opinion of the court was delivered by The application for a writ of mandamus must be denied. The judgment which relator seeks to compel the lower court to enter is not authorized by the decision of this court. The opinion heretofore rendered (5 Wash. 665, 32 Pac. Bep. 789) clearly shows that this court recog*604nized the fact that it appeared from the record that the goods as to the custody of...
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The opinion of the court was delivered by This is an appeal from a judgment of dismissal rendered in a partition suit, commenced as a suit in equity. The judge sitting for the hearing of equity causes heard the testimony of the parties until each had rested, and then finding that the cause involved the determination of facts concerning the title which were proper to be submitted to a jury, instea...
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The opinion of the court was delivered by All of the errors assigned by appellant, excepting those relating to the evidence offered in opposition to its own claim of offset, were founded upon the rulings of the court upon objections by the appellant to the introduction of evidence to show that- the contract sued upon, which purported to be executed by John E. Lutz, its manager, was so executed by ...
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The opinion of the court was delivered by Relators sought to appeal from an order of the superior court appointing an assignee in place of the one named by the assignor in his deed of assignment, and asked the court to fix the amount of the supersedeas bond on such appeal. This the court refused to do, and this proceeding has been instituted to compel such action on the part of the court by manda...
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The facts in these two cases being nearly the same as those in the case of Enoch v. Spokane Falls, etc., Ry. Co., ante, p. 393, and the legal questions involved being identical, it was stipulated by counsel for the respective parties that the three causes should be heard together, and that the disposition of the cases should be governed by the decision in that case, in which alone briefs were file...
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The motion in this case must be denied, for outside of the merits of the case (and the facts are so conflicting that the court could not feel justified in presuming against the correctness of the statement of facts), this is not the kind of a case where the remédy is by suggesting a diminution of the record. The motion here is to make another and different record from the one certified by the judg...
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The opinion of the court was delivered by This is the same matter in connection with which this court heretofore prohibited the superior court of Pierce county from trying the question of title to the property seized under writ of attachment. State v. Superior Court of Pierce Co., 5 Wash. 639 (32 Pac. Rep. 553). The petitioner now seeks to have the superior court of Mason county prohibited from tr...
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Defendant U. A. Gile was found guilty of manslaughter, and his appeal bond was fixed by the trial court in the sum of six thousand dollars. This amount he claims is excessive and unjust, and moves this court to reduce the same. Counsel for defendant have not cited the court to any law empowering this court in a proceeding of this kind to exercise the power of reducing *624the amount fixed by the t...
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The opinion of the court was delivered by The motion for non-suit made by the defendant at the close of the plaintiffs’ case should have been granted. At that time there was absolutely no proof tending to show any negligence on the part of the company. On the contrary it affirmatively appeared from such proof that the company had taken every precaution required by law and custom to protect its emp...
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*576The opinion of the court was delivered by This was an action brought by the county commissioners of Jefferson county against the Port Townsend Southern Railroad Company to recover the sum of thirty thousand dollars, being the alleged expense of relocating and opening a portion of the county road alleged to have been destroyed and appropriated by respondent. It is conceded by both appellants an...
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The opinion of the court was delivered by There was a suggestion by the appellants at the oral argument that the information was void for the reason that it did not appear therefrom that the prosecution was in the name or on behalf of the state. This objection was not made in the brief of appellants, and for that reason they were not entitled to be heard in regard thereto, but in view of the fact ...
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The opinion of the court was delivered by This is a controversy as to fifty shares of the capital stock of the defendant corporation as between the respondent corporation and the appellant Samuel T. Douglass. The respondent claims as the purchaser of the shares at an execution sale, as the property of the person in whose name such shares were standing on the books of the corporation at the date of...
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The opinion of the court was delivered by This action was brought to cover an amount alleged to be due upon a note purporting to be that of the appellant, the Pacific Boom Company. It was signed in its name by its president, and secretary and treasurer. The defense of the appellant was that the officers of the company who executed the note were not authorized so to do by any formal action on the p...
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The opinion of the court was delivered by In discussing this case we shall proceed on the theory that Shepard and Moody are proper parties plaintiff in this action. The action was originally begun by Shepard, but appellants answered, averring the fact to be that Moody had an interest in the controversy, and that Shepard was not the sole party in interest. Upon this suggestion in the answer, and a...
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The opinion of the court was delivered by Appellant commenced a suit against one Foster and caused a writ of attachment to be issued therein against his property, under which the sheriff seized certain of his chattels. The respondents here then served labor claim notices under § 3124, Gen. Stat. Subsequently, and before judgment, appellant dismissed said action, and the property attached was relea...
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*616The opinion of the court was delivered by The only reasonable construction of § 1454, General Statutes, is that thereunder no sale of personal property is valid as against existing creditors or innocent purchasers, where the property is left in the possession of the vendor, unless such sale be evidenced by a memorandum in writing, and such memorandum be recorded in the auditor’s office of the ...
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The opinion of the court was delivered by Plaintiffs allege that they had entered into an agreement with certain of the defendants for an exchange of lands, and they brought this action to enforce a specific performance. Judgment was rendered for the defendants, and the plaintiffs appealed. Deeds had been prepared and signed by the respective parties, and deposited with John P. Cass, one of the de...
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The opinion of the court' was delivered by It is contended on the part of the appellant that the act of November 28, 1883, commonly known as *613the gross earnings law, was void, for the reason that it was in conflict with the organic law of the territory. The provision of the organic act, which it is claimed was violated in its enactment, was as follows: “All taxes shall be equal and uniform, and...
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The opinion of the court was delivered by The main question in this case is, whether the members of the city council of Puyallup, which is a city of the third class, shall be paid for sitting as a board of equalization in the month of May. The act of March 9, 1893 (Laws, p. 157), amending the act of 1890 providing for the organization of municipal corporations of the second, third and fourth class...
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It is observed that there are several elements constituting the offense described in section 60 of the Criminal Laws. Those elements are: 1. An assault; 2. That it is with a deadly weapon; 3. That it is with the intent to inflict upon the person of another a bodily injury; 4 a. Either where no considerable provocation appears, or 4 b; Where the circumstances of the assault show an abandoned and ma...
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It is observed that the plaintiff herein was a judgment creditor of the defendant Henry Neill, in an action other than the one at bar. In that action the defendant herein the board of county commissioners was garnished. It replied that under a contract between it and the firm of R. A. Bell & Co., of- which Henry Neill was a member, there were moneys due to that firm. On the trial of this case, it ...
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The first contention of appellant cannot be sustained. Section 302, Criminal Practice Act, is as follows: “When two or more defendants are jointly indicted for any felony, any one defendant requiring it shall be tried separately; in other cases defendants jointly indicted shall be tried jointly or separately, in the discretion of the court.” The offense tried was a misdemeanor. (Crim. Laws, § 132....
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It is not claimed that the county attorney has now any right to tax up costs under the law of March 14, 1889, as a compensation for himself. It is conceded that his salary is his full and only compensation. But the state contends on this appeal that the county attorney should tax costs, as provided in the law of 1889, against a convicted defendant for the benefit of the state, and that said costs ...
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The question upon this appeal is upon what the cases and books have called “ quotient verdicts.” See cases cited below and in the briefs of counsel. Verdicts arrived at by methods such as described in the McNamara affidavit in this case have been held bad when properly before courts on motion for new trial. But the facts vitiating such verdicts are the agreement by the jurors to go into the proces...
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The foregoing statement of the case by Mr. Justice DeWitt, is sufficient for the purposes of this decision. The judgment of the trial court, in our opinion, should be affirmed. Beaton, the principal, who procured the undertaking to be executed by the sureties on his behalf, and received the attached money from the officer (which money was not subject to the attachment), was liable therefor, withou...
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The present consideration in this case relates to a motion interposed by respondent’s counsel to eliminate from the record the statement on appeal on the grounds: 1. That no motion for new trial was made in the court below by appellant; and 2. That the statement on appeal was settled and certified by the judge of the trial court after the notice of appeal had been served, and such notice with unde...
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The opinion of the court was delivered by The respondent moves the court to dismiss this appeal for the alleged reasons that no notice of appeal was ever given in this action as required by law, and that one of the parties to this action has neither given nor received notice of this appeal. But, as the record shows that notice of appeal was given by plaintiffs in open court, no other notice or ser...
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*453The opinion of the court was delivered by Respondent, as attorney general, was charged by an act of the legislature, or what purports to be such, with the duty of approving the bond of the relator as one of the board of state land commissioners provided for by said act. This duty he refused to perform, on the ground that what purported to be the act of the legislature was not in fact such, fo...
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The opinion of the court was delivered by This action was brought to foreclose two mortgages upon certain land in Spokane county. These mortgages were executed by Lemuel O. Carter and wife on the 25th day of September, 1889, at which date the mortgagors had received from the Northern Pacific Railroad Company, then the owner of the land, a contract in writing to convey it in consideration of the su...
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The opinion of the court was delivered by The respondent, who was the county superintendent of schools of Snohomish county, by virtue of the power and authority vested in him by § 784 of the General Statutes, made an order establishing a new school district in said county, known as school district No. 66, and duly certified his proceedings in that matter to the county commissioners of said county...
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The opinion of the court was delivered by This cause was previously before this court. (4 Wash. 285; 30 Pac. Rep. 82), and in disposing of it the court said: “The judgment of the superior court must be reversed, and the title established in the appellant Bertie Sherman *2Drake, subject to the lien of Frost and Spinning for the balance of their purchase money and the contract of the Drakes with int...
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The opinion of the court was delivered by Plaintiff brought this action to recover the contract price for services performed by him for defendant as a surveyor. In his complaint, he alleges that between the 1st day of July and the 15th day of August, 1891, he, at defendant’s instance and l’equest, did work and labor for *16the defendant, by himself and servants and agents, and rendered professiona...
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Defendants take this appeal from the judgment and an order denying a new trial. This ease has been here before: 88 Cal. 537, 26 Pac. 355. In the opinion on the *242first appeal the substance of the complaint and the contract sued on are fully stated. The answer denies the existence of the contract, but admits that such a contract was agreed upon, and avers that it was to have been reduced to writi...
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This action was commenced on June 19, 1885, against Vitus Wackenreuder and Morris Windt, for the purpose of foreclosing a mortgage made by said Wackenreuder to secure the payment of his note which matured on June 29, 1882, and he was properly served with the summons, but for some reason not disclosed by the record the cause was not brought to a hearing in his lifetime. Wackenreuder died in August,...
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Application for a writ of supersedeas. The above-named plaintiffs, claiming to be the owners of an undivided interest in certain lands, brought an action in partition against the defendants, Julia Hoppe and W. A. Fountain, alleging that the latter held a mortgage upon the land, exe*537cuted to him by his co-defendant Julia. Fountain also brought an action against Julia to foreclose his mortgage, a...
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This is an action to recover the value of certain materials furnished by the plaintiffs to the defendant Stauffer, and by him used in the construction of a house for the defendant Morehead, upon a lot of land owned by her, and to enforce a lien therefor on the said house and lot. The court below found, among other things: “That the amount agreed to be paid said contractor, Stauffer, for the erecti...
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This is an appeal from a judgment foreclosing a mortgage. Appellants Jaynes, Moffatt and Conkling, and J. M. Taylor, Andrew Stephens and others, were made defendants. The mortgage was executed February 3, 1887, by appellant Moffatt and one H. Clay Graham, since deceased, to secure their two joint and several promissory notes for the aggregate sum of $20,540, with interest at eight per cent per ann...
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The action was brought by the city of Santa Ana, a municipal corporation, to condemn a right of way over certain laud of the defendant for the opening of Second Street in said city. The cause was tried by a jury and the damages assessed at two hundred and sixty-seven dollars, for which sum judgment was entered in favor of defendant, as well as a decree that the use of the land for the purposes of ...
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When the case of Price v. Price—an action for divorce—was called for trial in the superior court of Santa Clara County, the court was advised that the evidence would probably be of a filthy nature, and thereupon made an order directing “that during the trial all persons be excluded from the court-room except the officers of the court, the parties, and their counsel.” It was further ordered “ that ...
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I feel compelled, under the authorities, to concur with my associates in reversing the judgment; but T do so with great reluctance and some doubt. The manner of nisi 'prim courts in conducting trials now-a-days is not generally subject to the criticism of too great curtailment of the privileges of attorneys; on the other hand, its seems to me that attorneys are frequently given too much latitude t...
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The defendant was convicted of the crime of arson in the second degree, and has appealed from the *249judgment and from an order denying his motion for a new trial. The only grounds urged for a reversal are that the court erred in giving to the jury portions of two instructions asked by the people, and in its rulings upon the admissibility of certain evidence. It was proved that the defendant was ...
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This action was brought to enforce a trust against the defendant on account of certain sheep received by him to be kept for the plaintiffs. Defendant had judgment, from which, and from an order denying a motion for a new trial, James S. Bradley, one of the plaintiffs, appeals. According to the amended complaint, one James H. Bradley died intestate, in the county of Tulare, August 4, 1870, leaving ...
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The findings are sufficient to sustain the judgment. The paper found in the transcript and denominated a “bill of exceptions” is not certified by the clerk to be a correct copy of any bill of exceptions on file, nor does it contain any specific exception to any particular finding of the court. Judgment affirmed. We concur: Fitzgerald, J.; McFarland, J....
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Defendants were charged by information- with robbery, committed in the county of Los Angeles September 6, 1892, aud upon a trial were convicted. The appeal is from the judgment of conviction and from an order denying a motion for a new trial. The information was signed as follows':—• “James McLachlan, District Attorney in and for the County of Los Angeles, State of California. By D. W. Diel, Deput...
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The defendant was convicted of the crime of grand larceny, committed at Oroville, county of Butte, July 8, 1892. He moved for a new trial which was denied, and thereupon he appeals. He was convicted as an accomplice of one Sarah Brady, who admits that she committed the offense, and the only question calling for discussion relates to the sufficiency of the evidence in corroboration of said Brady. T...
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This is a controversy submitted to the court below upon an agreed statement of facts, as provided for by section 1138 of the Code of Civil Procedure. Judgment was rendered in favor of the sanitary district, and Woodward appeals. The proceeding was initiated by F. J. Woodward, a taxpayer within the Fruitvale Sanitary District, to test the validity of the organization of such district, and the legal...
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A receiver was appointed in the case of California Bank v. Los Angeles & Pacific R. R. Co. on September 13, 1889. On October 26, 1891, plaintiff herein filed a petition of intervention in that action, setting forth, among other things, that he had obtained a judgment against defendant herein for the sum of $4,403.30 on October 2, 1891, and that no part thereof had been paid. He prayed that his cla...
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This is an application for a writ of mandate. The matter is before us upon a demurrer to the petition, aud the merits of the proceeding may be fully determined by a consideration of the facts relied upon by petitioner for the issuance of the writ. The writ is asked to issue against the board of supervisors of Orange County, requiring them to provide a library room for the use of the law library cr...
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The facts fully appear in the following statement by the justice delivering the opinion. *Page 463 The testator a resident of Eureka county, in this state, died October 25, 1892, leaving a wife and six minor children, his mother, and a sister, Mrs. Isabella M. Loucks. By his will, executed in 1889, the widow was appointed executrix, but it is alleged that she left this country for Germany in Sept...
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Application is made herein for a writ of mandate, directed to the district court of the first judicial district, requiring it to entertain the appeal of relator from the action of the board of medical examiners of the state of Montana in revoking relator’s license to practice medicine in this state. It appears that, pursuant to the provisions of the statute in that respect made and provided (Act t...
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As appears by the statement of the case above, the material point of the relator’s contention was that respondent was not nominated by the People’s party, and if not so nominated, the People’s party votes cast for him were illegal votes, and he had not enough legal votes to elect him. Upon a nonsuit, that which the evidence tends to prove will be considered as proved. (Creek v. McManus, ante, p. 1...
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The first matter for consideration in this case is whether it was an offer to vary or contradict the terms of a written instrument, when the defendant pleaded in his answer that it was understood between plaintiff and defendant that the acceptance of the bill of exchange should not be a waiver of the counterclaims which defendant alleged he then held against the plaintiff. It is our opinion that t...
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Relator contends that a justice’s court has not jurisdiction, under the forcible entry and unlawful detainer act (Code Civ. Proc., § 716 et seq.), of an action by a landlord against a tenant holding after default in payment of rent. Const., art. 8., § 21, as to jurisdiction of justices’ courts, provides, inter filia, that they “shall also have concurrent jurisdiction with the district courts, in c...
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By the Court, This was an original application to this court for a peremptory *467 writ of mandamus. Tlie petitioner, Trenmor Coffin, seeks to compel JR. L. Horton, the state controller, to draw his warrant on the state treasurer in favor of relator for .the sum of two hundred and fifty dollars, alleged to be due and owing from the state of Nevada to relator. By the affidavit upon which this ...
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The opinion of the court was delivered by The appellant and one Arquet were tried, convicted and sentenced to the penitentiary for a period of seven years, upon an information charging them with the crime of grand larceny. The case has heretofore been before this court on motion to dismiss for failure to file a transcript within the prescribed time; and the respondent now moves the court to strik...
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This is an action to restrain appellants from diverting the waters of a certain stream, and thereby depriving plaintiff of the use thereof. The plaintiff, by actual diversion, appropriated two thousand five hundred inches of the water of the stream for the purpose of irrigation. Subsequently defendants, at a point a mile or more above plaintiff’s place of diversion, posted notices in accordance wi...
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This is an appeal by the defendant from a judgment entered against him in the superior court of San Diego County, and from an order denying his motion for a new trial. It was taken by filing in the court below a proper notice and undertaking on February 10, 1893. The transcript was filed in this court on March 18, 1893. The respondent now moves to dismiss the appeal upon the ground that, when it w...
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The petitioner obtained a judgment in the superior court in and for the city and county of San Francisco, on the 31st of May, 1893, against William Black, for the sum of three thousand seven hundred and ten dollars, and on the same day caused an execution thereon to be issued and placed in the hands of the sheriff, and by virtue thereof the sheriff levied upon and took into his possession certain ...
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This is an action on a written contract entered into between the assignor of plaintiff and defendant for the sale and purchase of real estate, and is brought to recover a balance of $5,863.24 on account of the purchase price, and interest from August 2, 1887, at ten per cent per annum. Plaintiff had judgment, from which, and from an order denying a motion for a new trial, defendant prosecutes this...
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The points urged by appellant upon the re-argument of this case have been fully considered by us, and we think the judgment and order appealed from should be affirmed for the reasons given by us in the former opinion, filed herein on March 9, 1893, and that opinion will stand as the opinion of the court. Judgment and order affirmed. The following is the opinion above referred to, rendered in Depar...
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This action is brought by the people of the state to recover the amount of taxes levied in the year 1888 for state purposes upon certain property of the defendant, Bailen no, situate in the county of Los Angeles. The amount of the delinquent tax exceeds three hundred dollars. The prayer, of the complaint is for a judgment against defendant Ballerino for the amount of such tax, with five per cent f...
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This action was brought by the respondent to enforce the specific performance of a contract to convey certain real property situate in the county of Los Angeles. Plaintiff had judgment, from which and from an order refusing a new trial defendants appeal. » The findings of the court show, in substance, that on the *589thirteenth day pf October, 1889, one Jason Brown was the owner of the land in dis...
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This is a consolidation of eight actions to foreclose liens under the mechanic’s lien law against defendant, Thomas Norton, the owner of the building in question, and Thomas Helm, original contractor. Judgment went for all the plaintiffs except Knight, and Norton appeals from the judgment and from an order denying his motion for a new trial. The case was here on a former appeal. (Reed v. Norton, 9...
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Action to recover of defendant Ward his proportionate share of the alleged indebtedness of a corporation in which he was a stockholder. Judgment went for plaintiff, from which, and from an order denying a new trial, said defendant appeals. Appellant contends, among other things, that the complaint does not state facts sufficient to constitute a cause of action, and that the action is barred by sec...
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The facts sufficiently appear in the opinion. *Page 66 ...
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On August 4, 1884, the defendants made to plaintiff their joint and several promissory note for the sum of two thousand dollars, payable two years after date; and at the same time, to secure the payment of said note, executed to plaintiff a mortgage on certain lands, situate in the county of Lassen. This action was commenced in Lassen County on July 28, 1890, to foreclose the mortgage and to obtai...
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Ejectment for certain lands claimed to be a part of the Rancho Santa Paula y Saticoy, in Ventura county. The controlling question in the case is the location of the southerly line of the rancho. This line is set forth in the patent as follows: After leaving station S. P. 13, “thence S. 42, ]4 E., at 30 links enters bed of Santa Clara river, course S. W.; at 4 chains, intersects offset of township ...
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The plaintiff brought this action against her husband, the defendant, for permanent support and maintenance under section 137 of the Civil Code; and on August 12, 1891, the trial court made an order that during the pendency of the action defendant pay plaintiff fifty dollars per month alimony, and fifty dollars to her attorney. From this order, on the day on which it was made, defendant appealed. ...
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This is an appeal upon the judgment roll from a judgment on demurrer to the complaint. The action is for damages, and the complaint, in substance, alleges that the defendant maliciously and without probable cause sued out a writ of attachment against plaintiff’s property and extorted from him the money sued for, upon a threat made by defendant that if the same was not paid he would cause the writ ...
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This action is brought to annul a contract for the purchase of a.lot of land in the city of Pasadena, county *268of Los Angeles, entered into between the assignor of plaintiff and grantor of defendant on the thirty-first day of August, 1887, and to recover back so much of the purchase money as had been paid on account of such contract. Defendant answered, admitting the execution of the contract, a...
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The mortgage upon which this action was brought provides that in case-of foreclosure the mortgagee may include therein all payments made by the mortgagee “ for taxes on said premises, and the taxes of this mortgage or the money hereby secured.” It is claimed by appellant that this provision of the mortgage is void, and that the court below erred in allowing interest on the note for the payment of ...
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The respondent filed his complaint against Manuel Banegas, the appellant, and J. W. Lucas, for the fore*625closure of a mortgage executed to him by said Manuel, and upon the default of Lucas, and the answer of Banegas, the cause was tried and judgment rendered in favor of the respondent March 9, 1891. Upon this judgment an order of sale was issued March 14th, and the mortgaged premises sold to the...
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This action is upon an undertaking given to procure the release of property from an attachment. The writ was issued in an action brought by Alfred Moore, as plaintiff, against one Dorward. The undertaking is in the form prescribed by statute, and a copy is attached to the complaint. It recites the issuance and levy of the attachment, that the defendant had applied to the court for an order releasi...
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delivered the opinion of the court: 1. The defendant contends that the court erred in allowing plaintiff interest on the installments of rent. In Hawley v. Dawson, 16 Or. 344 (18 Pac. Rep. 592), it was held that when the amount of recovery is unliquidated, and there is no express agreement to pay interest, default in the payment does not occur till the amount which the party ought to pay is fixed ...
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This is a suit in equity to foreclose a mechanics’ lien upon the lots described in the complaint. The facts show that during the year 1892 the defendant William L. Harmon entered into a contract with the defendants Killam & Lewton, as copartners, by the terms of which they undertook to erect for him a dwelling house upon lots eighteen and nineteen for the sum specified; that while constructing sai...
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delivered the opinion of the court: A brief statement of the facts is essential to the determination of the question involved. It appears from the transcript that W. H. Clayson, who was an inhabitant and resident of England, died in that country on the sixth day of October, 1890, leaving an estate therein, and also leaving an estate consisting of real property in Clackamas County, Oregon; that the...
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It must be borne in mind, during all this consideration, that said fractional piece of land is the point of controversy — the only land in dispute — in this case. The allegations of the complaint respecting the acquisition and possession of lots 17, 18, 19, and 20, however material, are facts environing the real point of controversy. It will be observed by reading those allegations of the complain...
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The facts sufficiently appear in the opinion. This was a proceeding begun in the district court, in the nature of a quo warranto, to try the validity of respondent's claim or right to act as a member of the board of regents of the state university. It is set forth in the petition that the respondent is now and ever since the month of January, 1891, has been the duly elected, qualified and acting a...
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The action was begun by S. C. Wright, but upon his death his executors were substituted as parties plaintiff. The other facts sufficiently appear in the opinion. This is an appeal from an order of the district court granting the respondent's motion for a new trial. The action was commenced to recover the sum of two thousand dollars alleged to be due on a promissory note, which is in words and figu...
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The opinion of the court was delivered by This is an appeal from a judgment of non-suit rendered in an action brought by the appellant to recover damages for personal injuries sustained by appellant while engaged in “staking” cars at Hart’s mill, on the line of the Tacoma Eastern Railroad. The facts, briefly stated, are as follows: The respondent George E. Hart was the owner and operator of a saw...
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The opinion of the court was delivered by The respondent, prior to the 26th day of March, 1890, made valuable improvements which were at that date and now are in actual use for trade and business upon the tide lands lying in front of the city of Port Angeles, in the harbor of Port Angeles, and claims a right to purchase, the land so improved under the act of the legislature of said date, commonly ...
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The opinion of the court was delivered by At an election held March 24, 1891, a freeholders’ charter was adopted for the city of Spokane, which went into effect April 4, 1891, and which has ever since been the charter of said city. By § 9 of art. 2 of said charter it is provided that— “The officers of said city, to be elected by said city at large, shall be the mayor, treasurer, comptroller, city ...
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The opinion of the court was delivered by The relator seeks the interference of this court by writ of prohibition against the superior court of Snohomish county and George Brackett, a receiver appointed by that court. The facts are these: The relator is a creditor of one Gordon, who has left the state, and upon certain of whose property the relator has caused an attachment to be levied by the sher...
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The opinion of the court was delivered by Kelators sought by these proceedings to have the superior court of Spokane county, and two of the judges thereof, prohibited from carrying into effect two certain orders made in cases pending in said court. One *75of such orders removed a receiver theretofore appointed by the court, and the other appointed a receiver in another action, relating to the same...
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*61The opinion of the court was delivered by We have carefully examined the record in this case, as well as the brief of the appellant, and find that all of the pertinent questions raised have been decided by this court, either in Keane v. Brygger, 3 Wash. 338 (28 Pac. Rep. 653), or Brygger v. Schweitzer, 5 Wash. 564 (32 Pac. Rep. 462), and most of them in both of the above named cases, so that we...
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The opinion of the court was delivered' by In this case, the first cause of action having been dismissed by the court below, it is not necessary that we pass upon the alleged errors which were argued by the appellant in connection with the court’s treatment of it before the dismissal. The second cause of action alone was tried, and it is upon that the judgment was entered. The question which goes ...
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This case resembles Miller v. Wadding-ham, 91 Cal. 377. In fact the building contract is the same in both cases. Clubine contracted with the defendant, Newman, to build certain houses, six upon land he had contracted to purchase from Miller, and six on the land purchased from plaintiff. The buildings were alike, and all were building at the same time. Clubine had a contract with plaintiff to purch...
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In Farmers & Merchants’ Bank v. Board of Equalization, 97 Cal. 318, 32 Pac. 312, most of the ques*224tions involved in this appeal were determined adversely to the respondent. The additional point now presented, that the legislature could not confer upon the state hoard of equalization authority to extend the time within which the county board of equalization could act, must also, under the princi...
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In September, 1891, John A. McCarty entered into a written contract with Shelley H. Tolhurst, appellant, to furnish the materials and construct for him on a lot in the city of Los Angeles a dwelling-house, with fences and other structures, for the sum of $2,275. The contract was duly recorded and by its terms twenty-five per cent of the *633whole contract price was made payable thirty-five days af...
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The complaint in this action substantially alleges that the board of supervisors of Los Angeles County, after a favorable election had for that purpose, duly authorized the issuance of three hundred bonds, in denominations of one thousand dollars each, bearing interest at the rate of five per cent per annum, for the erection of a county court-house; that said bonds were duly executed and delivered...
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This is an action to recover from respondent, who was a stockholder of the plaintiff corporation, the unpaid balance of an assessment upon eighteen hundred and eighty-three shares of its capital stock. The court below found that the respondent was not, at the time the assessment was levied, the owner of the stock, and that the board of directors had not, before the commencement of this action, ele...
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Action of criminal conversation. Judgment was rendered in favor of the defendant, and the plaintiff has appealed, assigning certain errors of the court in its instructions to the jury. The respondent makes a preliminary objection to the consideration of these errors upon the ground that the appeal is taken from the judgment alone, whereas the rulings are only found in a “ bill of exceptions on mot...
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PLEADING – DEMURRER – STATUTE OF LIMITATIONS – SPECIFICATION OF SECTIONS OF CODE. – Where a demurrer to a complaint, on the ground that the cause of action is barred by the statute of limitations, specifies the particular sections upon which the defendant relies to defeat the action, only the sections specified are pleaded, and the question as to whether or not the cause of action is barred by any...
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The plaintiff, a foreign corporation, was engaged in the insurance business in this state from July, 1887, to and including January, 1891. Its principal place of business was in the city of San Francisco, but it had a branch office in-the city of Los Angeles. From January, 1888, to January 10, 1891, defendant was the agent of plaintiff, and the manager of its business at its Los Angeles office, an...
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The facts are stated in the opinion. Action of ejectment. Trial by the court and judgment for the defendant. The plaintiff is the owner of the legal title to the demanded premises, but the defendant sets up an equitable defense to the action founded upon a purchase by him from the plaintiff's grantor, the payment of the purchase money, and possession and improvement for a number of years; of all o...
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The facts fully appear in the following statement by the justice delivering the opinion; Original application to compel the respondents as respectively land register and treasurer of the state of Nevada, to receive from the relator the interest due upon a certain forty acres of land which the state had, along with other lands, contracted to sell to him. The respondents refused to receive the money...
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The opinion of the court was delivered by The question presented’ in this case involves the validity of that part of § 11 of the act approved March 11, 1893, relating to the duties of county auditors (Sess. Laws, 1893; p. 284, § 11), providing that the auditor shall refuse to receive or record any deed of real property unless it is accompanied by a certificate of the county treasurer “that all tax...
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The opinion of the court was delivered by This was purely an action at law, and-therefore respondent’s objections to the record are untenable. The referee filed his report, and after hearing upon exceptions, the court rendered judgment as recommended in the report. Notice was given by appellant of the filing of a statement of facts, but no statement was actually filed, all that was done being the...
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The opinion of the court was delivered by r Respondent brought suit to recover upon a promissory note dated October 19, 1882, made by S. C. Harris, D. T. Wheeler, Henry L. Yesler, John Leary and George W. Harris to M. Y. B. Stacy, arid endorsed by Stacy, without recourse. The complaint alleged that the respondent purchased the note in the ordinary course of business, on or about October 19, 1882,...
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The opinion of the court was delivered by This is an action of forcible detainer, in which it is sought to obtain a judgment of forfeiture of the lease for non-payment of rent, a judgment for rent due, and for institution of the demised premises. The plaintiffs obtained the relief prayed for, and the defendants appealed. A great many questions are discussed in the brief of appellants, only one of ...
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*95The opinion of the court was delivered by These actions were brought by the county, under the revenue act of 1891 (Laws, 1891, p. 280), for the purposes of having the registered unpaid taxes on certain real estate described in the complaint declared a lien thereon and the property sold to satisfy the same. An answer was filed in one of the cases and a general demurrer in the other, but before t...
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The opinion of the court was delivered by The respondent brought an action against the appellants to enjoin them from selling the north half of the north half of lots 1 and 2, in block 3d, in the city of Anacortes, and a decree was rendered in her favor. The respondent was formerly Mrs. Le Boucher, and resided at Walla Walla, in this state, where her former husband had been engaged in the saloon ...
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The opinion of the court was delivered by This is an action on a judgment recovered in the county court of Fond du Lac county, Wisconsin, on June 9,1882, by the respondent against the appellant here, on a contract debt .originating in 1881. The respondent was at all those times and is still a resident of Illinois, and has at no time been a resident of either Wisconsin or Washington. The appellant...
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delivered the opinion of the court: 1. It is manifest the complaint does not state facts sufficient to constitute a cause of suit, and the demurrer was properly sustained. It is sought by this suit to set aside an execution sale of real property, on the ground of inadequate price and irregularities in the proceedings subsequent to the decree upon which the sale was made. The allegation that the de...
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This is a suit in equity to quiet title to real property, under section 504 of the Code. The only question necessary to determine on this appeal is one of adverse possession. Both parties claim title through William Holmes, the original donation claimant — the plaintiff through a deed to one Holland made and recorded in 1859, and sundry mesne conveyances; and the defendant through a deed to Sarah ...
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This action was first prosecuted in the justice’s court by plaintiff to obtain restitution of the possession of a certain piece of land in Missoula county, under the provisions of the statute forbidding forcible entry or unlawful detainer of lands in possession of another (Code Civ. Proc. §§ 716 -33), and the trial in the justice’s court resulted in findings and judgment in favor of plaintiff. The...
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The defendant was convicted of the crime of grand larceny, charged to have been committed April 9, 1892, in Tehama county, by feloniously stealing, taking, and carrying away one cow, the property of H. C. Wilson. The information was filed April 29,1892, and on May 4th the defendant was arraigned, and pleaded not guilty to the charge. On May 9th, by order of court, the trial of the case was set for...
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It is our opinion that the district court erred in granting the motion in arrest of judgment. The same point is here presented as was decided in State v. Evans, ante, page 239, and Electric Light Co. v. Morgan, ante, page 394. Respondent here was appellant in the district court. He appealed from the justice’s court to the district court. On such appeal the trial in the district court is de novo, w...
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The Pacific Bank suspended payment and closed its doors on June 23, 1893. On the 11th of August following seven of its creditors, representing an indebtedness of three thousand and sixty-three dollars and twenty-nine cents, filed a petition in involuntary insolvency asking for an order to show cause why it should not be adjudged an insolvent. The grounds of the petition were that the bank being in...
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Two cases with the above title were tried together and similar judgments entered in both cases. By stipulation the motion for a new trial and the appeal from the judgment and from the order denying a new trial are applicable to both. As the facts are in all material respects similar, it is only necessary to discuss one case, which will be that first set out in the transcript. The complaint in that...
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An information charging Amos Abbott, George Abbott and Albert Acevedo with burglary, committed on the fifth day of September, 1891, in the room of one Ah Sic, in the city of Los Angeles, was filed by the district attorney. The defendants severed. Appellant George Abbott pleaded not guilty, was tried, found guilty by the jury, and sentenced to imprisonment for the term of five years. A motion for a...
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This action was brought by the public administrator, acting as the administrator of the estate of Daniel J. Harris, deceased; and in form it purports to be an *663action to obtain an accounting of the transactions between the defendants, A. S. Shorb and his wife, Mattie L. Shorb, and the said Daniel J. Harris in his lifetime. But the main averments of the complaint are that on the thirteenth day o...
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The plaintiffs claim to own, and to be entitled to divert and use upon their lands, 567/10,000 of all the waters flowing in and from the San Antonio canyon, which is located partly in Los Angeles county and partly in San Bernardino county; and they brought this action to have their title to the part of the said waters, so claimed by them, quieted, as against the defendants. The answer denied all t...
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This is an action for the recovery of real estate. The defendant set up title by adverse possession, and his claim was held to be well founded by the trial court. The sole question arising upon this appeal rests upon the construction of that provision of the statute which declares that, before the plaintiff can be deprived of his title by an adverse occupation, the party in possession must “ pay a...
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The 44th section of the city charter of the city of Los Angeles provided a mode by which the funds of the citjr should be deposited in such bank of deposit of the city as would pay the highest rate of interest thereon, etc. (Statutes, 1889, p. 467.) Pursuant to such section of the charter a contract was, after due notice, on the tenth day of March, 1890, entered into by and between the plaintiff a...
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This action was brought by Ida Rlioton and Elenora Rhoton, minor children of Amanda Rlioton, deceased, and Marion Sitton, a minor child of Eliza Sitton, deceased, to construe the last will of William T. Blevin, deceased. William T. Blevin, deceased, was a resident of the county of Sutter, and *646on the twenty-eighth day of April, A. D. 1888, made, executed, and published his last will aud testame...
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The defendant and George Green were, by information, jointly accused of the crime of robbery. They demanded separate trials, and upon the separate trial of the defendant the jury returned a verdict of guilty, recommending defendant to the mercy of the court. Thereupon the court sentenced him to imprisonment in the state prison for the term of forty years. He appeals from the judgment and from an o...
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In this case judgment was originally entered in the court below for defendant. An appeal was taken by the plaintiffs to this court from the judgment upon the judgment-roll, and this dourt reversed the judgment and directed the superior court “to enter a judgment upon the findings in favor of plaintiffs, in accordance with the prayer of the complaint.” When the case went back to the superior court ...
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The appellant’s right of recovery depends upon the performance by Hartman of his contract with Olvera to procure the issuance of a patent for the Rancho Ex-Mission of San Diego. This agreement is set forth at length in the opinion of this court rendered upon the former appeal: 91 Cal. 405, 27 Pac. 1082. Upon that appeal the judgment of the court below was reversed for its failure to make a suffici...
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This is an action of ejectment brought against the defendant Hoff and over one hundred others to recover possession of the south half of the San Fernando rancho in Los Angeles county. Upon the facts shown at the trial we think there can be no question as to the right of the plaintiff to recover in this action, and the question of error in the instructions becomes immaterial. The supreme court of t...
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This is a proceeding upon habeas corpus instituted by the petitioner, Carroll, on behalf of John F. Burris, who is alleged to be unlawfully restrained of his liberty. The return to the writ consists of nothing more than the commitment under which the prisoner is held, which recites certain proceedings on attachment for an alleged contempt of court. • These recitals show that Burris obtained from t...
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The plaintiff was sheriff of Tulare county from January 7, 1889, until January 5, 18.91. During that time no salary was attached to his office, *62but he was entitled to charge and receive for official services such fees as were allowed by law. On November 29, 1890, he presented to the board of supervisors for allowance a claim against the county for $770.40. Of this claim $284.70 was for “ miles ...
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On the thirtieth day of December, 1892, W. C. Pingree died intestate in the county of Stanislaus, in this state. He was a resident of the county at the time of his death, and left an estate therein, consisting of real and personal property of the value of more than fifteen thousand dollars. He had no relatives or heirs-at-law residing in this state. On December 31st, the next day after the death o...
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This action was brought to have a certain road in Placer county declared a public highway, and to enjoin defendant from collecting tolls thereon. Plaintiff had judgment; and defendant appeals from an order.denying a new trial. It is averred in the complaint that defendant claims and is exercising the franchise of collecting tolls for the privilege of traveling upon and passing over the road, and i...
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This is an action for a divorce and a division of the community property. It is alleged that F. R. Warner, who is joined as a defendant with the husband of the plaintiff, received from the husband a fraudulent conveyance of certain real property, situated in San Bernardino county, with the intent to defraud the plaintiff of her community interest therein. The prayer is for a divorce, a cancellatio...
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On August 15, 1887, the plaintiffs and ' the defendant were copartners doing business in the firm name of Sugar Pine Mill and Lumber Company. Their business was that of manufacturing and selling lumber. They owned one hundred and sixty acres of timber land, upon or near which they had built a sawmill. On August 15, 1887, a written contract between the copartnership and two of its individual member...
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This is an action to foreclose a mortgage. A decree in favor of the plaintiffs was entered upon the pleadings, from which Lee Stanley, the assignee in insolvency of the Columbus Brewing Company (a corporation), defendant, appeals. The admitted facts of the amended and supplemental complaint, coupled with certain affirmative allegations of the answer, show that the property described in the pleadin...
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delivered the opinion of the court: 1. The first ground of error relied upon is the insufficiency of the facts stated to constitute a cause of action. The complaint alleges in substance, that on the ninth day of November, 1890, the plaintiffs, as partners, sold and delivered to the defendants, as partners, their right, title, and interest in and to certain personal property (describing it), and al...
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delivered the opinion of the court: Two questions are here presented: First, has the plaintiff any legal capacity to sue; and, second, does the complaint state facts sufficient to constitute a cause of suit? While there is an irreconcilable conflict in the decisions upon the right of a taxpayer, in his own name, to restrain by injunction, a municipal corporation and its officers from illegally cre...
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The opinion of the court was delivered by This was a proceeding for the condemnation of a right-of-way for respondent’s railroad, and involves three different appellants: the state, the Columbia & Puget Sound Railroad Company, and the Northern Pacific Railroad Company. The right-of-way sought to be appropriated lies over land between the high and low water marks in Elliott Bay, on the water front...
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The opinion of the court was delivered by The city of Montesano, under its first charter, was limited in its power to create a debt, except for ordinary current expenses, to the sum of §6,000. Acts 1883, p. 268. Under its present charter, approved January 20, 1886, the limit was placed at §10,000. Acts *701885-86, p. 373, § 106. But the act of congress of June 30, 1886, changed the basis of limita...
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The opinion of the court was delivered by The respondents move the court to strike from the recoi’d in this case the statement of facts, and for an affirmance of the judgment upon the following grounds: Because appellant did not give notice to respondents of the time and place of settling said statement of facts within the time required by law, and because the court had no jurisdiction to settle t...
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The opinion of the court was delivered by O’Connell, the relator, was in December, 1892, elected road overseer of a district designated as 18, in King county, and qualified and entered upon his duties. On the 7th day of January following, the county commissioners made some change in certain of the road districts, by virtue of which that part of district 18 in which O’Connell resided was cut off th...
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The opinion of the court was delivered by This was a proceeding to foreclose liens for taxes upon a large number of separate parcels of real estate, taken under the act of 1891 to cure defective titles to real estate and the general revenue law of the same year (Acts, pp. 166, 280). The taxes in controversy were those assessed for the year 1890. Upon the return of the order to show cause, the app...
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*98The opinion of the court was delivered by The appellant instituted proceedings in the superior court of King county to condemn a right-of-way for railroad purposes over certain lands owned by Thomas Johnson and Ann Johnson, his wife, in which proceeding-some thirty other parties were made defendants by reason of their having some lien upon, or interest in, said premises. A jury was empaneled t...
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This court is unable to find in the affidavits filed in support of the motion to set aside default a showing of fiicts sufficient to warrant a reversal of the ruling of the trial court thereon. The action was pending more than a year before judgment was entered. Defendants’ demurrer haviug been overruled, their counsel interposed a motion to strike out certain portions of the complaint, which moti...
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In this case the attorney general moves this court for an order requiring the clerk to receive and file the appeal herein prosecuted by plaintiff without collecting the fee provided by section 2 of the act of March 6, 1891 (2 State Sess. Laws, p. 208.) That provision of the statute requires the clerk of this court to collect in advance from appellant a docket fee of ten dollars, on filing the tran...
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The matter for review herein is the appointment of a receiver by the court below, in an action in the nature of ejectment, to take and hold possession of the real estate in controversy, collect the rents and profits thereof, and dispose of the same, pursuant to the orders of court. That appointment, relator claims, is in excess of the court’s jurisdiction in said action, and she therefore brings t...
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As to instruction 21, it is to be observed that the testimony on this trial differed in some respects from that on the trial which resulted in the appeal reported in 7 Mont. 70. The record in this court on that appeal showed that Savery, the superintendent, testified that he instructed Showers, the foreman, “that as an extra precaution I wanted him at every blast, if possible, to be present to dir...
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In this case relator sued out a writ of habeas corpus from this court. Upon hearing of that proceeding he was remanded to the custody from whence he was brought under the writ, and the costs of the proceeding were taxed against him. He now moves this court to reconsider the question of so assessing the costs against him, claiming that the taxation of costs against one invoking the writ of habeas c...
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For the reasons given in the opinion filed by this department June 27, 1893, the judgment and orders appealed from are affirmed. The following is the opinion above referred to: Patrick Donohue died in San Luis Obispo county on the nineteenth day of February, 1892, leaving surviving his wife, the respondent, Kate Donohue, but no children, and also leaving an estate, consisting of real and personal ...
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Appeal from an order refusing to dissolve a preliminary injunction. The complaint states facts sufficient to justify the issuance of the injunction sought to be dissolved, and the court did not err in its ruling upon the motion to disolve the same. Order affirmed. We concur: Fitzgerald, J.; McFarland, J....
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The minutes of the trial of this case and which constitute a part of the record,-state that the court read to the jury “instructions asked by the respective parties, and allowed by the court, and those given by the court on its own motion”; but the record filed here does not contain any of the instructions thus referred to, except those given upon request of the defendant. One of the points made b...
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The transcript in this case contains two appeals, one from the judgment decreeing to plaintiff a divorce on the ground of adulter}», the other, from an order denying defendant’s motion to vacate and set aside the judgment. The complaint was filed April 6,1891, and the defendant served with process April 8,1891. On the twenty-first day of April, 1891, the defendant having failed to appear and answe...
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This is an appeal by defendant from a judgment against him in favor of plaintiff for $1,000, and from an order denying a motion for a new trial. The facts found by the court are substantially as follows: On September 7, 1887, the parties made a written agreement, by which the appellant, Cressey, agreed to sell to respondent, Easton, a certain piece of land, upon these terms: Easton was to pay “ on...
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This is a prosecution for obtaining money by false pretenses, and the defendant, having been convicted, appeals from the judgment. The indictment was demurred to on the ground that it does not state facts sufficient to constitute a public offense; and after conviction a motion in arrest of judgment was made on the same grounds. The indictment charges defendant: “With intent to defraud one John F. ...
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Action to recover possession of a large tract of land situate in the county of Tehama and the value of the rents and profits thereof alleged to be fifteen hundred dollars. The answer of the defendant admits the plaintiffs’ ownership of the land and the withholding of the possession thereof, by defendant, but alleges that he was entitled to the possession by a lease from the plaintiffs, and denies ...
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The plaintiff agreed with the defendant to harvest about twelve hundred acres of grain, for which the defendant was to pay him at the rate of two *95dollars per acre. After he had harvested sixty-five acres a dispute arose between them concerning the terms of the agreement, the defendant claiming that the plaintiff was to take certain mules at an agreed valuation of one thousand dollars in part pa...
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The defendant Caruthers appealed a judgment against him for the sum of seven thousand five hundred dollars, and gave to the plaintiff an undertaking, with the other appellants herein as sureties, to stay the execution of the judgment pending the appeal. The judgment was affirmed in this court, and, after the filing of the remittitur in the court below, judgment was entered against the sureties in ...
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This is an action to quiet the plaintiffs.’ title to certain tailing mining claims, called the “Alturas Company’s Mining Claims,” situate in Slate creek, and partly in Sierra county and partly in Plumas county. The claims described extend up and down the creek about twenty-six thousand feet and contain an area of about one hundred and twelve acres. The defendants deny that the plaintiffs are, or *...
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The defendant was tried upon an information charging him with embezzlement. After .deliberating six hours the jury returned into court and stated to the judge that they were unable to agree upon a verdict, whereupon they were discharged. When the case came on for trial again, the defendant interposed the pleas of former jeopardy and former acquittal, and in support thereof introduced in evidence t...
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On March 27, 1893, the board of supervisors of the city and county of San Francisco passed an order—designated as Order No. 2622—fixing the rates of compensation to be collected by any person or corporation furnishing water for family uses, for private persons, and for municipal and public purposes, during the year commencing July 1, 1893, pursuant to section *1251 of article XIV of the state cons...
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This is an action to recover for services rendered in the exchange of certain real estate. Judgment went for plaintiff, a motion for a new trial was made and granted, and this appeal is prosecuted from the order granting a new trial. The case was tried by the court, and the new trial w*as granted upon the ground that “ the decision was against law.” The court made the following findings of fact: “...
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Action of ejectment to recover the possession of two adjoining quartz lode mining claims, situate on the public mineral land of the United States, known as the “ Hathaway Claim” and the “Peck Claim,” each being particularly described in the complaint by metes and bounds; and also to recover three thousand dollars damages for the severance and removal from said claims of gold-bearing rock. The comp...
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This action was brought by Magary against the appellants to enforce a street assessment. He obtained *306judgment in the superior court, and defendants appeal from the judgment, and an order denying their motion for a new trial. After the appeal was taken, Magary died, and his administrator, C. B. Williams, was substituted in this court. Upon their motion for a new trial, appellants specified thre...
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The petitioner was accused by information of the crime of grand larceny, and, after a trial in the superior court, convicted of petit larceny. His imprisonment in the county jail upon that conviction is alleged to be unlawful, because the superior court has no jurisdiction of petit larceny. *310But the charge of grand larceny gave the superior court jurisdiction, and the statute authorizes a convi...
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The defendant was found guilty by a jury, and sentenced by the court to seven years imprisonment in the state prison, upon an information, for mayhem, committed upon one W. R. Jones on the nineteenth day of December, 1891. The defendant pleaded not guilty, and also pleaded that he had once been in jeopardy for the offense charged, and also a further plea that he had been convicted of the offense c...
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This action was brought to recover the sum of seventeen hundred and seventy-five dollars, the reasonable value of services alleged to have been rendered at defendant’s instance and request. The court found that in a former action brought by plaintiff against defendant it was adjudged that plaintiff did not render to defendant at the latter’s instance or request the services alleged in the complain...
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Motion to dismiss the appeal. Judgment was rendered in this case in favor of thplaintiff, June 24, 1890, and an order was afterwards made denying defendant’s motion for a new trial. From this order the defendant appealed on the 29th of April, 1892. May 25,1893, the respondent gave notice to the appellant of this motion to dismiss the appeal, upon the ground that .the appellant had failed to file t...
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This is an appeal by plaintiff from, a an denying a motion for a new trial. The main history of the case is stated in the opinion of this court upon a former appeal (Montgomery v. Sayre, 91 Cal. 206); and it need not be repeated here. The first question in the case is whether or not Sayre, deceased, made the ten thousand dollar promissory note to appellant sued on as surety for W. S. Chapman. Resp...
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Application for a writ of prohibition. It appears that on September 28,1892, the petitioner, L. M. Wagner, was adjudged insolvent by the superior court of Los Angeles, and subsequently the court, in the matter of the insolvency proceeding, made a distribution of all of the estate of the insolvent which had come into the'possession of the assignee, and granted to the petitioner here a certificate o...
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The defendant was charged with and convicted of the crime of forgery, and appeals from the judgment and also from an order denying a motion for a new trial. The appellant makes a great many points in his briefs, and elaborately argues them; and we will notice briefly what we consider the most important of such points. 1. Appellant contends that the information is fatally defective because the word...
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Breton died on the 4th of August, 1890, leaving a will, of which the following are the material parts necessary to be here considered: “First. I direct that all my just debts, the expenses of my last sickness, and my funeral expenses be paid from the first money that shall come to the hands of my executrix hereinafter named. “ Secondly. I will, bequeath, and devise to my beloved wife, Bertha Breto...
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On September 26,1889, one Goldzier obtained a judgment in a justice’s court against Granger,the owner of a drug store. An execution was issued thereon, and on October 15, 1889,-the goods were sold *223by the constable under the execution to J. W. Husband and G. S. Turner for one hundred and ninety-six dollars, the amount of said judgment and costs. On October 1, 1889, the Jacob Unna Co., Redington...
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Action to quiet title to land in Newcastle, in the county of Placer. The controversy is in regard to the boundaries. The plaintiff had judgment, and the defendant appeals from the judgment and an order refusing a new trial. The parties own and occupy contiguous places on Depot street, and both derive title from H. F. Albee. It is agreed that A. N. Page formerly owned a larger tract of land, of whi...
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The defendant as sheriff sold certain real property owned by plaintiff under an execution issued upon a judgment recovered against him. The complaint in this action, which is verified, alleges that this sale was made by defendant without giving the notice required by section 692 of the Code of Civil Procedure, and the plaintiff demands a judgment against the defendant for the statutory penalty of ...
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This is an appeal taken to obtain a modification of a judgment in an election contest. *200It appears from the complaint that at the general election, November 8,1892, plaintiff and defendant were candidates, and the only persons voted for, for the office of supervisor of the third supervisorial district in the county of Modoc; and that at such election plaintiff received eighty-seven, and defenda...
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This action was brought by plaintiff to enjoin the defendant from shutting off or preventing the flow of water into certain mains and pipes of plaintiff. The court granted a nonsuit, and entered judgment for defendant; from which judgment, and from an order denying a motion for a new trial, plaintiff appeals. Each of the parties is a corporation organized under the general laws of the state for th...
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This is a suit by M. C. Banfield against Jacob Banfield to restrain an action at law, and compel the reformation of the note upon which the action is founded. Briefly, the facts are that in September, 1890, the plaintiff purchased of his brother, the defendant, a certain tract of land in Portland for which defendant held a bond for a deed, upon which some twenty-seven monthly installments of ten d...
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delivered the opinion of the court: This is a suit brought by a taxpayer of the city of Astoria to enjoin the city from incurring any further expense in assessing and collecting a city tax for the year 1893. The question sought to be raised is the right of the city of Astoria to assess and collect a city tax for said *559year in disregard of the general law of the state. The contention is that the...
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This is an action brought to recover damages for personal injuries sustained by the plaintiff while in the employment of the defendant as a road-master. The injuries were the result of a collision between a locomotive engine and a construction train upon which the plaintiff was riding. The engine which came in collision with the train was then being used in the work of defendant, and was driven by...
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This is an action of ejectment to recover a parcel of land situate in the county of Los Angeles. Plaintiffs had judgment, from which and from an order denying a motion for a new trial defendant appeals. The parcel of land in question is part of a larger tract of which John O’Connor died seised July 21,1882. The entire tract was community property of John O’Connor and Maggie O’Connor (now Maggie Ph...
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In February, 1891, the plaintiff being largely indebted to Mrs. Adella B. Story, defendant, and also to other creditors, made an agreement with her as follows: “ Whereas, Mrs. A. B. Story has agreed to pay all the debts existing against the Story & Isham Commercial Company on the first day of February, 1891, including those payable to herself, and, whereas, said Story & Isham Commercial Company de...
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This action is closely connected with the action of Story & Isham Commercial Company v. *42Story et al., No. 19015, ante, p. 30, and was argued and submitted to the court at the same time. After the former action had been brought against the present plaintiff, she commenced the present action for the purpose, among others, of restraining the defendants from interfering with the property conveyed t...
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Action to foreclose a deed of trust. The complaint substantially alleges that on June 22, 1881, the defendants, Henry Patison and his wife Emma J. Patison, executed to plaintiff’s assignor their promissory note for two thousand dollars, payable on the twenty-second day of June, 1885, with interest as therein specified; that at the same time they executed to the defendants, Hamilton and Coleman, as...
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Action to foreclose a mortgage. Plaintiff had judgment, and'defendant appeals. It appears that on the second day of October, 1877, the defendant, Henry Patison, was the owner and resided with his family on the premises in question; that on that day his wife, the defendant, Emma J. Patison, declared a homestead thereon, and that they continued to actually occupy the same up to the twenty-ninth day ...
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Action to recover a balance of $825 alleged to be due and owing from defendant to plaintiff on a written building contract; and also $50 for extra work. The cause was tried by the court. The judgment was in favor of the defendant. The plaintiff has appealed from the judgment and from an order denying his motion for a new trial. By the contract the plaintiff agreed to repair an old house and to bui...
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The city of Fresno is a municipal corporation, organized in 1885, under the provisions of an act of the legislature approved March 13, 1883, entitled “An act to provide for the organization, incorporation, and government of municipal corporations.” It is of the fifth class named in the act, and has a board of trustees vested with power, among other things, “to provide fire-engines and all other ne...
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Opinion by The only question raised by this appeal is, whether state courts have jurisdiction to enforce, by a proceeding in re to, a lien given for supplies furnished a domestic vessel in her home port. The contention for the defendant is that a proceeding of this character, brought against the vessel by name, which seeks to condemn and sell her to satisfy a lien given by the state for supplies ...
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The question whether G. T. Donner had declared a forfeiture and cancellation of the contract must be decisive of this appeal. It is contended that the deed from Donner to Perry was a forfeiture of said contract. If it be admitted that this conveyance was another and different sale of the property from that agreed to be made to the defendant Corbin, then it would be a forfeiture of his contract: Ch...
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Opinion by The contention for the plaintiff is that the mortgages show on their face that they were made for the benefit of the mortgagor, and were designed to be used as a shield between the corporation and its unsecured creditors, while it prosecuted its business for an indefinite time. It is undoubtedly true that where a mortgage is designed and made for the benefit of the mortgagor, and to en...
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The deed being a mortgage, plaintiff was not the owner of the land. (Civ. Code, secs. 24, 29; Smith v. Smith, 80 Cal. 325.) There was no sale to Schultz by plaintiff, and he could not have a vendor’s lien. (Civ. Code, sec. 3044.) A grantee is not estopped to deny the title of his grantor. (San Francisco v. Lawton, 18 Cal. 476; 79 Am. Dec. 187; Osterhout v. Shoemaker, 3 Hill, 518; Sparrow v. Kingma...
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—The defendant was informed against for the crime of murder, and convicted for killing Oscar Crandall at the county of Tehama, on the twenty-fourth day of April, 1891. The appeal is from a final judgment, and from an order denying a motion for a new trial. On a former trial defendant was convicted of murder, and on appeal to this court a new trial was ordered. (People v. Mitchell, 94 Cal. 550.) C....
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Porter, as assignee of one Abbott, brought suit against appellant on several causes of action, among which was one for the sum of $2,500, as commissions claimed to have been earned by Abbott in effecting a transfer of property between appellant Fisher and one J. A. Baxter. The property Fisher conveyed and transferred to Baxter consisted of two hundred and eighty acres of land in Tulare county, tog...
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The complaint shows that the plaintiff, to whom the defendant had given a note and mortgage, purchased the property therein described at foreclosure sale, on March 12,1892, for the sum of $21,414.30 (being the full amount of the judgment, costs and expenses), and received the sheriff's certificate; that the premises had never been redeemed from the sale, and the time allowed by law for the redempt...
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William Stewart died in Lassen county on May 13, 1892, leaving what purported to be his last will, in which the respondent W. P. Hall was named as executor, and in which the daughters of the *248deceased, May M. Atteberry, aged twenty-four years, and Nellie Stewart, aged eleven months, both residents of said Lassen county, and his daughter Lena M. Stewart, aged twenty years, resident of Butte coun...
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This is an appeal by petitioner from a judgment for respondent in a proceeding to obtain a writ of mandate. The petition avers that petitioner is a citizen, taxpayer, and resident of Sacramento county; that respondent is district attorney of said county; that McClatchy & Co., proprietors of the Bee newspaper, pre*266seated a claim of $1,567 to the board of supervisors of said county for advertisin...
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The defendant had judgment in the above-entitled cause, from which, and an order denying a motion .for a new trial, plaintiff appeals. The case was here on a former appeal from a judgment in favor of plaintiff for a nominal sum, from which he appealed, whereupon the judgment was reversed and a new trial ordered: 91 Cal. 119, 27 Pac. 601. The general history of the case is there stated, and will no...
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Defendants were informed against and convicted of burglary. The crime consisted of entering a freight car of the Southern Pacific Company with intent to commit larceny. Defendant Bannister was sentenced to one year’s imprisonment in the state prison at San Quentin, and defendant Hawley to three years at the state reform school for juvenile offenders at Whittier. The appeal is from the judgment, an...
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This is an action for an accounting between partners. The material facts set out in the complaint may be briefly stated as follows: On or about the first day of March, 1885, the plaintiff and defendant, at the county of Del' Norte, in this state, entered into a verbal contract whereby they agreed to go into the business of buying, slaughtering and selling beef cattle and mutton sheep, and to divid...
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Action to enforce specific performance of an agreement. The judgment was for plaintiff, and this appeal is upon the judgment-roll. The findings show that July 5,1883, Eliza D. Nichols was the owner of a tract of land in Solano count), bordering a natural watercourse known as “ Paddy Ranch creek.” She and her grantors had for ten years used the water of said creek for domestic purposes, and for irr...
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On March 3,1891, the board of supei’visors of El Dorado county passed an ordinance requiring “every person engaged in the business of raising, grazing, herding or pasturing sheep and goats, or sheep or goats,” in that county, to procure from the license tax collector a license therefor. The ordinance made it the duty of the license collector to collect the license, and further provided that he mig...
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The defendant was convicted upon an information of having committed a felonious assault upon the person of one Marion Bradley Sparks, on the thirty-first day of May, 1892, in the county of Orange. During the impanelment of the jury one Moulton was examined as to his qualifications, and, having stated that he had frequently conversed about the case, and that from what he had heard had formed an opi...
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Plaintiff sues for damages for personal injuries alleged to have been caused by defendant’s negligence. Plaintiff avers that he was employed by defendant as a laborer, and engaged under its direction in loading stone upon a car, and “ that the car on which defendant was loading stone, as aforesaid, on said day, was placed by said defendant, and stood during said day near and alongside, to wit: abo...
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July 22, 1889, M. M. Keyes and Barbara Keyes, his wife, made their promissory note to John Cyrus for seven thousand one hundred and seventy-five dollars, and as security for its payment executed to him a mortgage upon certain lands in Sonoma county. M. M. Keyes died October 17,1889, and his widow Barbara was appointed administratrix of his estate and continued to act as such until August 10, 1891,...
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This is an action to recover the sum of $780 claimed to be due plaintiff on two causes of action; the first is for $125 alleged to have been received by the defendant from one Calvert for the use and benefit of plaintiff, and the *337other is for $655, which it is alleged the defendant holds for plaintiff as assignee of B. & B. Bonnett, under a certificate of which the following is a copy: “This i...
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Counsel for appellant remarks in the introduction of the present consideration that, when this case was here on a former appeal, “the statement of the case therein made recites substantially all the facts necessary for the determination of the questions arising upon the present appeal.” Therefore reference is made to that statement (11 Mont. 516) for an exposition of the condition of the case when...
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This is an appeal by defendant below from an order of the district court refusing to dissolve an attachment. The motion in the district court was made úpon several grounds, upon only one of which appellant now relies. That we will examine. Appellant’s contention was and is that the attachment should have been dissolved for the reason that the writ was not served upon him, and opportunity given to ...
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Opinion by The errors assigned relate principally to certain instructions given by the court, to which exceptions were reserved. Before proceeding to discuss the points raised, a brief outline of some of the facts is essential, to show the location of the street where the accident occurred, the nature of the cut through which the cars passed, and the circumstances connected therewith. Other facts...
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Opinion by 1. Plaintiff’s first contention is that Big Pudding River is a public navigable stream; that the erection of a dam across it creates a nuisance to prevent which he is entitled to the interposition of a court of equity. A court of equity will restrain a nuisance when it appears that the complainant will sustain irreparable injury, or be compelled to resort to a multiplicity of actions to...
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Opinion by 1. It is admitted that the voluntary appearance of a defendant in an action is equivalent to the service of a summons, and waives all defects in the process (Code, § 62), but the contention for defendant is that no appearance, except as provided in section 530 of the Code,— that is, either by answer, demurrer, or giving plaintiff written notice,— can be deemed an appearance within the ...
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The affidavit in this case states that on the twenty-ninth day of November, 1892, the passenger train of the Great Northern Railway Company was stopped and held up, and the express and baggage car attached to said train was robbed of valuable goods, etc., by three masked men near Malta in this state; that on the thirtieth day of November, 1892, Hon. J. K. Toole, the then governor of the state, by ...
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Dissenting Opinion. (For opinion of court see cmíe, p. 122.) I dissent. I think the only theory upon which the constitutionality of the lien law can be sustained is the theory of the benefit to the property upon which the work is done or material furnished; and this material never having been put into the building, the building should not respond to a lien for its value. It makes no difference t...
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Action to quiet title. The appeal is taken from a judgment in favor of plaintiffs, and the only question involved is as to the location of the western boundary line of the Rancho Paso de Robles. The rancho was surveyed in 1859, and its boundary lines, as far as it is necessary to examine them for the purposes of this case, are described as commencing at a post marked P. R. No. 3, then west 84 chai...
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The plaintiff, who is a married woman, brought this action to recover three hundred dollars from the defendant for personal services as a nurse, alleged to have been rendered by her to him. At the time these services were rendered the plaintiff and her husband were living together, and the defendant was an inmate of their house, but neither the plaintiff nor her husband was under any natural or le...
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The transcript contains two notices of appeal—the first from an order vacating ‘ ‘ an order for inspection of certain books of account, ’ ’ made at the instance of plaintiff; and the second “from the order denying plaintiff’s motion to strike out the answer of defendant, ’ ’ on the alleged ground that he had refused to give his deposition in the case. The transcript consists of two bills of except...
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The appellant, Thomas Orr, brought an action in June, 1891, against the respondents in the superior court of Siskiyou county, to restrain them from depositing any sand or gravel in ¡North Fork Cornish ditch, and from diverting the waters of Main Greenhorn creek from said ditch during a certain portion of each day; and immediately after the commencement of the action procured a writ of injunction t...
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Respondent has moved to dismiss the appeal herein, and to strike from the files the transcript on appeal. In preparing his notice of appeal counsel for the appellant entitled the cause Emma Butler v. Thomas Ashworth et al., and it is claimed that this invalidates the appeal. An affidavit has been filed in which counsel for appellant states that the mistake was caused by the fact that when he was e...
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(After Stating the Facts.) — At the time this ditch was constructed, E street, at the point of this crossing, was a county road. No one of the inhabitants could lawfully obstruct it, or render it dangerous to travel. The common law is, and was at that time, that where a person or corporation builds a ditch or canal across a public highway, this gives them no right to destroy it as a thoroughfare, ...
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Plaintiff brought action in probate court, to recover $300 damages alleged to have been sustained by him through the wrongful acts of defendant, in breaking into inclosure of plaintiff, destroying a certain pigpen, and' driving-away certain hogs from the premises and possession of plaintiff.. The action ivas commenced by filing complaint, and issuing summons thereon. Summons was dated May 10th, re...
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Appellants having recovered, on appeal to this court, a judgment for the restitution of certain mining claims and property, a writ was issued out of the district court for Idaho county, and delivered to the sheriff of said county, commanding him to place appellants in possession of the property. To this writ the sheriff made the following return: "I found M. L. Murray, C. L. Rice, T. S. Ratcliff a...
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The appellee files his petition for rehearing in the above-entitled cause, and cites the following authorities in support thereof: 2 Kents’ Commentaries, 13th ed., *238, note E. In this note the editor quotes the decision in Hartley v. Wharton, 11 Adol. & El. 934, and refers the reader to this case for a construction of the statute under discussion, in which he adds: “The energy of the statute is ...
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Plaintiff brought action against the appellants and the Coeur d’Alene Silver Lead Mining Company. The complaint alleges that on the second day of July, 1890, John Bresnaham was indebted to the plaintiff in the sum of $122.50; *678that the Coeur d’Alene Silver Lead Mining Company on said day was indebted to the said Bresnaham in the sum of $3,200, whereupon said Bresnaham gave to the plaintiff in p...
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Opinion by This is a suit by a sub-contractor to foreclose a mechanic’s lien upon the real property of the defendants for labor and material furnished and used in the construction of a building thereon. The portion of the claim of lien material to the question presented on this appeal, is as follows:— “ Know all men by these presents, that I, H. E. Dillon, of the city of Portland, in the county o...
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Opinion by The plaintiffs contend that they are entitled to recover from the defendants, in addition to the amount allowed them by court, the following: For surveying and other expenses, one hundred and fifty-eight dollars and thirty-five cents; and for money advanced on the contract, five hundred and forty dollars. It was necessary to make a survey and plat of the land, and advertise the property...
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—The plaintiff in this case is the Electric Light and Power Company, a corporation organized in this State, and the defendant is the city of San Bernardino, a municipal corporation of the fifth class. The plaintiff entered into an express contract for lighting the streets of the city of San Bernardino for one year following the first day of October, 1891, with forty-two electric lamps. The city ag...
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The petition for a rehearing will be denied. It appears that on September 28, 1892, the petitioner, L. M. Wagner, was adjudged insolvent by the superior court of Los Angeles, and subsequently the court, in the matter of the insolvency proceeding, made a distribution of all of the estate of the insolvent which had come into the possession of the assignee, and granted to the petitioner here a certif...
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Action to foreclose a mortgage executed by defendant to secure his promissory note for two thousand dollars made to his wife, Mrs. M. E. McClure, and by her assigned to the plaintiff, who is the son of defendant and his said wife. The only defense upon which any point made here is that there was no consideration for the note or mortgage. The judgment was in favor of the plaintiff, and defendant ap...
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The defendant and Giovanin Lena were, by information, jointly accused of the crime of grand larceny, committed by feloniously stealing and carrying away a trunk and contents thereof, consisting of ladies’ apparel, the property of a Miss Jennie Petty. On a separate trial the defendant was found guilty and sentenced to imprisonment in the state’s prison; and he brings this appeal from the judgment a...
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This is an appeal from a decree settling an annual account of the administrator. Among the items allowed were the following: “Dr. Cook, medical services last illness, $45.50; Dr. Fergus-son, same, $10.50; Dr. Rogers, same, $50; Blodget & Dudley, drugs, $18.35; Mary Dougherty, nurse last illness, $25.” We think the objections to these items were properly taken by the contestant, and that they were ...
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Appeal from a judgment and from an order denying a new trial. The defendant was convicted of the offense of obtaining goods by false and fraudulent pretenses. He was prosecuted under section 532 of the Penal Code, which denounces as criminal “ every person who knowingly and designedly by false or fraudulent representations or pretenses defrauds any other person of money or property.” On the trial ...
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Action to recover damages for a personal injury to plaintiff, alleged to have been caused by the negligence of defendant. The cause was tried by a jury, whose verdict was for the plaintiff, assessing the damages at one thousand dollars, and judgment accordingly. The defendant has appealed from the judgment, and from an order denying a new trial. The case was here on a former appeal from a similar ...
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This is an action of ejectment, and for a defense the city avers a dedication of the realty as a public street. The case has once been before the court (Smith v. City of San Luis Obispo, 95 Cal. 463, 30 Pac. 591), and a new trial ordered. At the previous trial in the lower court, judgment went for the plaintiff, but it was reversed upon appeal, for the reason that the conclusions of law were not s...
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This is an appeal from an order setting aside a judgment upon default. Within the time allowed by law for answering, the attorney for the defendant herein filed a demurrer to the complaint, but this demurrer was entitled Glenn Will v. The Lytle Creek Water and Improvement Company. It appears that the mistake was made by the attorney’s stenographer, and that there is a corporation named the Lytle C...
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The opinion of the court was delivered by This was a proceeding in the superior court by which the respondent sought to have set aside for her use certain real estate which had belonged to her deceased husband, and which was, at the time of his death, occupied by him. It is conceded that the real estate sought to be so set aside was the separate property of said husband, and that the same had neve...
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The opinion of the court was delivered by Appellant made a mortgage to the respondent upon a certain steamer for the sum of §3,000, and agreed therein that he would procure a policy of insurance upon such steamer in the sum of §5,000, and assign it to the respondent as further collateral security. Such insurance policy was taken out in the name of the appellant, but was not assigned by him as requ...
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The opinion of the court was delivered by This is an application for a writ of mandamus, commanding the respondent, as state auditor, *192to draw a warrant in favor of the petitioner, for the sum of §83.33, on account of salary as a member of the board of state land commissioners. The petition sets up the qualifications of the officer, the due presentation of the bill and all such formal requireme...
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The opinion of the court was delivered by The only- question presented by the record in this case is that of the sufficiency of the evidence to sustain the verdict of the j ury, and as we think that the testimony of the plaintiff’s witnesses, if believed by the jury, was sufficient to establish the cause of action set out in the complaint, it follows by well established principles that the verdict...
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The opinion of the court was delivered by The relator and one John Olsen were bound over to the superior court of Pierce county to answer a charge of burglary. *258On the 18th day of September, 1893, Olsen was tried and convicted in said court, and on the 20th day of said month the relator was there tried and convicted, whereupon relator filed a motion for arrest of judgment and for a new trial. U...
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The opinion of the court was delivered by But two questions are presented by the record in this case which it is necessary for us to decide. First, was there such an assessment by the respondent for the purposes of grading the street described in the complaint as would warrant the enforcement of a lien therefor against the property of the appellant; and, second, were the acts of the defendant such...
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These two eases present the same questions decided in the case of Town of Medical Lake v. Smith, ante, p. 195, and for the reasons therein given the judgments herein must be reversed, and the causes remanded with instructions to dismiss the actions. Dunbar, C. J., and Stiles, Anders and Scott, JJ., concur....
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The opinion of the court was delivered by This is an application to compel the respondent to draw a warrant against the permanent school fund in the sum of 835,000 in favor of the relator, to pay the purchase price of its school district bonds. It is conceded that said bonds have been regularly issued and are in all respects valid, and that they have been regularly sold to and purchased by the boa...
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Respondent, by motion, urges the dismissal of this appeal on alleged grounds.as follows: 1. Because appellant, by leave of court, withdrew his motion for a new trial, and thereafter filed another motion in its stead, “ long after the time for filing notice of intention to move for a new trial had expired, as appears from the transcript on appeal ”; 2. Because “appellant consented that the court mi...
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This case is appealed to this court from the judgment, and from an order of the trial court overruling plaintiff’s motion for a new trial. Certain motions have been interposed by both parties concerning the record on file herein. The first by respondents, suggesting a diminution of the record, and moving this court for an order to supply certain amendments of the statement on motion for new tidal ...
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In this proceeding, which comprises a writ of habeas corpus addressed to the sheriff of Lewis and Clarke county, together with a writ of certiorari addressed to the district court within and for said county, relator seeks a review of certain proceedings, and discharge from imprisonment imposed upon him by order of said court. It appears that in an action for divorce and alimony instituted against ...
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On the eighteenth day of November, 1887, the respondent recovered judgment against the appellant, in the district court in and for the county of Custer, for the recovery of possession of certain real estate situated in said county, and for one dollar, as damages for the detention thereof. Within five years of the rendition of such judgment, execution was issued thereon, but was never returned. On ...
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This action was brought under section 1589, Code of Civil Procedure, to recover for the estate property conveyed by the deceased, on the ground that the conveyance was made to defraud creditors. Defendant appeals from the judgment and an order refusing her a new trial. The case has been here before: See Threlkel v. Scott, 89 Cal. 351, 26 Pac. 879. Since the first appeal the complaint was amended b...
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The defendant was found guilty of the crime of assault with intent to commit rape, and was sentenced by the judgment of the superior court to imprisonment in the state prison for a term of seven years. The appeal here is from the judgment, and is brought to this court upon the judgment-roll alone, without any bill of exceptions. The jury retired to deliberate upon their verdict at nine o’clock in ...
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The defendant was convicted of the crime of arson in the second degree, and sentenced to *371imprisonment in the state prison for the term of six years. From the judgment of conviction and the order denying his motion for a new trial this appeal is taken. Appellant relies for a reversal on two grounds: First. Failure to prove the alleged ownership of the burned building. Second. Insufficiency of t...
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The defendant was convicted of the crime of embezzlement, and the judgment was that he be punished by imprisonment in the state prison at Folsom for the term of three years. From this judgment and an order denying his motion for a new trial, he appeals. The information charges that on the tenth day of August, 1892, the defendant received from one Robert C. Brinkley, as his agent, the sum of $390, ...
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The defendant was tried for the murder of William G. Canfield. The jury returned a verdict of guilty of murder in the first degree, with imprisonment for life. This appeal is from the judgment rendered upon the verdict, and from an order denying defendant’s motion for a new trial. Appellant, at the time of the homicide, was a constable at Sanger, Fresno county. Late at night he went to a house of ...
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J.G. Crowl, the appellant, was indicted for the crime of an assault with intent to commit rape upon one Ida Trybschenek, a female child under ten years of age, and upon trial was convicted as charged. The appeal is from the judgment, and the cause comes up on the judgment-roll, without any bill of exceptions. At the trial the court, at the re*356quest of the prosecution, among other instructions t...
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The plaintiff seeks to recover damages from the defendants for injuries sustained by him from their wrongful acts. The complaint is in two counts, each of which is stated to be “ a separate cause of action” against the defendants. For each of these separate causes of action the plaintiff alleges that he sustained damage in the sum of two thousand five hundred dollars, and asks judgment for their a...
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The defendant was convicted of the crime of assault with intent to commit rape, and sentenced to imprisonment in the state prison for a term of years. This appeal is taken by him from the judgment and the order denying his motion for a new trial. It is contended by appellant that the judgment should be reversed: First. Because of the insufficiency of the evidence to sustain the verdict. Second. Be...
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A judgment was entered denying probate to a certain instrument claimed to be the last will and testament of William C. Flint, deceased, upon the ground that at the time said instrument was signed the testator was not of sound and disposing mind, and also. that said deceased was unduly influenced in the making thereof. The appellant, Annie Flint, wife of the deceased, made a motion for a new trial,...
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Upon the former appeal herein (87 Cal. 480), it was held that the petition for the order of sale was sufficient, and that determination is conclusive of the question upon the present appeal. The subsequent permission of the court below to allow Mrs. Dear to file objections to granting an order of sale does not give her any right to renew the objections to the sufficiency of the petition. By the pr...
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Daniel J. Bergin, deceased, died in March, 1892, in the city of Dublin, Ireland, leaving a last will, which was duly probated in the proper court of that country. He left some personal property in the city and county of San Francisco, California. By said will certain persons were appointed executors, and the respondent herein, Thomas I. Bergin, who is a citizen and resident of San Francisco, in th...
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The plaintiffs were being carried as passengers in one of the coaches of the defendant on the night of *359December 3'0,1891, from Santa Margarita to San Luis Obispo; and, while going down the slope of the mountain toward the latter place, and about three miles therefrom, the coach was upset and Mrs. Knight sustained serious injuries, for which this action was brought. The jury rendered a verdict ...
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In January, 1889, Matthew Connors died, owning an undivided one-half interest in certain real property, situate in the city and county of San Francisco, and leaving as his sole heir-at-law his father, Michael Connors. In June, 1889, Michael Connors also died, leaving as his sole heirs-at-law two daughters, Margaret O’Neill and Mary A. Connors. In November, 1889, Thomas Kirkpatrick was duly appoint...
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The following opinion was delivered by This is a bill in chancery, on the Federal side of the court, for an injunction against the defendant to restrain him from doing certain acts against the persons and property of the complainants, alleged to be in violation of the rights of complainants as citizens of the Cherokee Nation of Indians, and Cherokees by blood, and, therefore, unlawful, and for the...
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Opinion by Does the foregoing lease express the intention of the parties to the contract, is the question presented by this appeal. To entitle a party to have a written contract reformed by a court of equity, the complaint must show that some relation of trust or confidence existed between the parties to it, or that there was fraud or misrepresentation, or that the means of knowledge as to the te...
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(concurring). — I am unable to find in this case grounds to support the ruling of the trial court in peremptorily instructing the jury to return a verdict for plaintiff, and thereon entering judgment. The action is for recovery of money had and received. In answer to the complaint, defendants allege ownership of the chose in action upon Avliich they collected the money in controversy, and allege i...
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The following opinion was delivered by The plaintiff states that he is a Cherokee Indian, and a citizen of the Cherokee Nation ; that said Nation is the owner, in fee simple, of what is known as the Cherokee Outlet, under the treaties of 1828, 1833, 1835, 1846, and the patent of 1838. That he now resides, and has resided for the last eight years, on a portion of said outlet with his family, and...
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In this case plaintiff demands judgment against defendant on an alleged debt consisting of two items —one item of ninety-two dollars for board and lodging; and another of fifty-seven dollars and twenty cents for office rent. The action was first prosecuted to judgment in favor of plaintiff in the justice’s court, and carried into the district court by defendant’s appeal, where the trial de novo ag...
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This is an action of claim and delivery, 'brought by plaintiif against defendant to recover possession of certain personal property, to wit, one stallion and one jackass, alleged by plaintiff to have been wrongfully taken from his possession by defendant. The complaint alleges that at the time of the taking the plaintiff was “the owner, in possession, and entitled to the immediate possession” of t...
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Statement of Facts. — This was an action brought by defendant in error against plaintiff in error in the district court of the county of Laramie to recover upon a policy of insurance issued by the latter. The petition filed in the court below, April 16, 1891, was as follows: “The above named plaintiff complains of the above named “defendant, and for cause of action alleges as follows, to wit: “1. ...
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These two cases in error in this court arise from a single action in the district court. Edwin W. Hopkins brought his action in that court against Charles E. Fisher, and John M. Chadwick and Charles E. Fisher, administrators of the estate of Jehu J. Chadwick, deceased. He obtained judgment against them. Charles F. Fisher brings the cause to this court for review by his individual petition in error...
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The opinion of the court was delivered by On December 31, 1891, Andrews made his two promissory notes payable to E. C. Finch, numbered 1 and 2. No. 1 was payable six months from date, and No. 2 was payable nine months from date. At the time of the execution of the notes, Andrews made and delivered to Finch a mortgage on real estate, to secure the payment of both of said notes. On said day- Finch s...
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The opinion of the court was delivered by The only objection made to the issuance of the proposed bonds being that the ordinance adopting the system of electric lighting for the respondent city recited that it was passed in pursuance of the act of March 26, 1890 (Laws, p. 520), as amended by the act of March 9, *1911891 (Laws, p. 826), when in fact, if passed at all, it must have been passed in pu...
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The opinion of the court was delivered by A judge of the superior court whose term of office expired on the second Monday of January, 1893, cannot be required- by mandamus to settle and certify a statement of facts on appeal after the expiration of his term. *286The act of January 21,1893 (Laws, p. 6), does not purport to do more than to authorize the ex-judges to settle- and certify, it does not,...
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The opinion of the court was delivered by The defendants in these cases — which involve the same question of law, and were submitted together— were separately indicted for willful neglect of official duty as officers of election. The defendant Smith was a judge, and the defendant Tuttle an inspector of election in Luna'precinct, Klickitat county, at a general election there held on the 8th day of ...
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The opinion of the court was delivered by The husband of appellant had executed a chattel mortgage upon the machine in question to the Aultman-Taylor Company in 1888, when it was located at his place of residence in Rice county, Minnesota; and at 'a later date, in order to obtain consent of the mortgagee to its removal to this state, he and appellant gave additional security for the debt covered b...
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The opinion of the court was delivered by This was an action brought by plaintiffs to establish a boundary line between the north and south halves of the Laban Stillwell donation claim, in Wahkiakum county, owned by plaintiffs and defendants, respectively. There are really no questions of law to be decided in this case, for the proposition contended for by appellants, viz., that the true corner is...
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The opinion of the court was delivered by By this proceeding petitioners sought to have modified the judgment heretofore entered in the cause. In the original opinion (4 Wash. 743, 31 Pac. Rep. 18), the court directed that the plaintiff should recover the costs of both courts, and as it prima facie appeared from the record that the defendants, including the petitioners, had appeared in the action,...
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The opinion of the court was delivered by The question of jurisdiction raised by the respondents has been substantially decided adversely to their contention in an opinion just filed in the case of Bell v. Waudby, ante, p. 203, and upon the authority of that case we must overrule such plea, and decide the motion on its merits. At the time the first judgment was rendered in this court on motion of ...
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The opinion of the court was delivered by Only one question is presented by this appeal which it is necessary for us to decide: Is an occupant of school lands, which have been regularly appraised by the board of county commissioners within two years from the date of the sale thereof, by virtue of the provisions of an act entitled ‘ ‘An act to provide for the sale and leasing of school lands, and d...
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The opinion of the court was delivered by The only point for decision in this case is as to what effect is to be given to Gen. Stat., § 3136, which requires the county auditor to procure a full set of weights and measures for his county, at the expense of the county, when such weights and measures have not already been provided. The auditor of Wahkiakum county, it is alleged in the complaint, proc...
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The opinion of the court was delivered by This appeal presents but a single question: Were the provisions of the general law as to the assessment and collection of taxes in force at the time of the passage of the act incorporating the appellant, the city of North Yakima, so referred to in said act, as to make them a part thereof, so that a subsequent repeal of such provisions by a general law woul...
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The opinion of the court was delivered by Plaintiff sued upon an alleged express contract whereby defendant agreed to pay him fifty dollars per day for every day during which he should be hindered in the use of a certain logging railroad which the defendant sought to cross with its track, and the trial of the same resulted in a non-suit, from which he appeals. The only error assigned is the granti...
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The opinion of the court was delivered by This is an application for a mandamus to require the superior court of Spokane county to entertain jurisdiction of an appeal from a justice’s court.- The notice of appeal was as follows: "State of Washington,-County of Spokane, ss.: “Before T. J. Cartwright, Justice of the Peace. “K.F. Fifer, Plaintiff, vs. William Maltby, Defendant. '■’■To the above name...
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The opinion of the court was delivered by The respondent brought her action under the act of March 28, 1890 (Laws, p. 448), entitled “An act for the relief of tona fide purchasers of school or university lands, ’ ’ etc., to compel a conveyance of certain lands in section 16, township 10 north, range 35 east, Willamette meridian, in Walla Walla county, alleging that they had been sold and conveyed ...
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The opinion of the court was delivered by This controversy grew out of an assumption on the part of the defendant, city of Spokane Falls, to exercise authority and jurisdiction in municipal matters over certain territory claimed by the plaintiff, the town of Denver, to be embraced within its corporate limits. The defendants claimed that the disputed territory was legally annexed to the city of Sp...
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The opinion of the court was delivered by Appellant was the owner of certain lots situated in Aberdeen, Chehalis county, and contracted in writing to sell the same to defendant Pierson. The respondent, under a contract with Pierson, performed labor in erecting a building on said real estate, and brought this action against appellant and said defendant to foreclose U lien upon the premises therefo...
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The opinion of the court was delivered by The almost universally accepted doctrine is, that a subscription to the capital stock of a corporation is a contract to pay money, which may be enforced by the corporation by suit. 2 Beach, Priv. Corp., § 584; 1 Morawetz, Corp. (2d ed.), §128; Cook, Stock, etc. (2d ed.), §69, et seq. *266But respondent’s first point is, that that portion of § 2421 of the C...
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The opinion of the court was delivered by This case was brought here and heard out of its order on account of its presenting an alleged question of great public interest that it was important should be immediately decided. The practice of bringing cases here on such allegations for the purpose of obtaining an opinion of this court as to the proper construction of a law as to which possible doubt m...
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The opinion of the court was delivered by This is an application for a writ of prohibition to restrain said court from entertaining or proceeding with a petition to modify a judgment and decree theretofoi’e rendered in an action by Laura Wolferman, as administratrix, etc., against Harry C. Bell, Belle Bell et al. Said action was brought in said court to foreclose a certain mortgage, and a decree w...
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The opinion of the court was delivered by It appears that a petition had been presented to one of the judges of the superior court of King *238county and had been refused, whereupon application has been made to this court. While it is true that the constitution invested the supreme court with original jurisdiction in habeas corpus, (art. 4, §4), it does not follow that it must take original jurisd...
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The opinion of the court was delivered by Appellant Hennessy, as constable, had levied upon certain personal property claimed by respondent under certain attachments and executions issued at the suit of other appellants, in actions brought by them against one Dunbar. The property consisted of four oxen, with yokes and chains, which had been the property of respondent, and while owned by him hired...
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The opinion of the court was delivered by The defendant was tried and convicted of the crime of burglary, alleged in the information to have been committed on the night of the 15th day of February, 1893, by feloniously and burglariously breaking and enteiv ing the store of one M. O’ Connor, in the city of Olympia, county of Thurston, and State of Washington, with intent then and there feloniously ...
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The opinion of the court was delivered by On April 16, 1892, the firm of Patehen Brothers entered into a contract with the city of Spokane *280by which they agreed to grub, clear, grade, curb and gutter Hilliard street in said city, between the south line of Sprague avenue and the center line of North avenue, according to the established grade, and according to the plans and specifications therefo...
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The opinion of the court was delivered by An application tó a court for the designation of a way of necessity, as a common law right, would be an equitable proceeding, and on an appeal in such a case, taken in April, 1893, the entire record must have been brought up, as in other equity cases. But the matter before us is not such an application, but rather a special proceeding to appropriate a ‘.‘p...
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The opinion of the court was delivered by This is an action for damages brought by the respondent, George A. Jennings, as plaintiff, against the Tacoma Railway and Motor Company, in the city of Tacoma. Respondent, at the time of the accident which caused his injury, was working for appellant as a conductor. On the 12th day of November, 1891, while engaged in the duty of conductor on what is known ...
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The opinion of the court was delivered by On the trial of an information charging the defendant and one George Gibbons with the crime of horse stealing, the defendant, having been separately tried, was convicted and sentenced to imprisonment in the state penitentiary for the term of five years. He brings the cause to this court for review upon exceptions reserved and errors assigned. The alleged e...
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This action was brought in the district court of the County of Laramie by defendant in error against plaintiff in error to recover damages alleged to have been been occasioned by the plaintiff in error having on October 20, 1891, operated its line of railway in such negligent and careless manner that it set fire to the grass and other vegetation which it had negligently permitted to grow and accum...
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It appearing that a stipulation has been entered into in writing by and between the attorneys for the respective parties in this suit to the following effect, namely: “That the brief and all motions of the respondent’s counsel be, and are hereby, withdrawn, and respondent’s counsel consents and agrees that the appeal herein is well taken. That *692the findings in behalf of the plaintiff in the cou...
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It very clearly appears in this case that there is no support for the judgment for recovery of attorney fees in favor of Lang. Such recovery would be allowed if supported by contract or statute. (Bank of Commerce v. Fuqua, 11 Mont. 285; 28 Am. St. Rep. 461; Wortman v. Kleinschmidt, 12 Mont. 316.) But there is no statute or contract shown whereby the cotenant of Lang is obligated to pay attorney fe...
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This is an action brought by livery and feed stable keepers to foreclose a lien upon a horse for the feeding of the animal. The horse was placed by defendant Woods in charge of plaintiffs, he agreeing to pay the sum of twenty dollars per month for his care and feed. At this time Woods was in. possession under a contract of purchase from the defendant, Adams, the true owner, the agreement between t...
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This is an action to quiet title to portion of block 226 Western Addition to San Francisco. The defendant claims that it has been dedicated to the public use as a street. Whether it has or not is the only question involved. The defendant had judgment, and plaintiff appeals from the judgment and from the refusal of a new trial. It appears from the findings that in 1855 one Thomas Hayes owned a larg...
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Opinion by The facts as disclosed by the bill of exceptions, are substantially as follows: One Matthias Apach was, on the eleventh day of August, eighteen hundred and ninety-two, and for some time prior thereto had been, conducting, as owner and proprietor, a retail grocery store in Albina, and plaintiff had been in his service as bookkeeper for a number of years, but, it is claimed, had never be...
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Opinion by The defendant contends that, admitting he made representations as to the value of his property as alleged *61by plaintiff, they were mere expressions of opinion not amounting to a warranty, upon which the plaintiff had no right to rely, and for any -damages arising therefrom, equity will not afford relief. The law is well settled that where there is no relation of trust or confidence ex...
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The instruction signifying to the jury the rule for the measurement of damages is the only assignment of error which we deem well founded. By this action plaintiff claims delivery of the possession of certain personal property, and damages for wrongful detention. In the usual form he alleges ownership of said property, viz: three head of workhorses, of the value of $160 (two being of the alleged v...
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Action in the nature of ejectment fbr recovery of possession of certain real estate, and the value of *470rents and profits thereof during the period of wrongful detention. Plaintiff, by her complaint in the usual form, alleges description and ownership of the real property in question, and her right to immediate possession thereof since May 1, 1892, the value of rents and profits thereof, and tha...
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The question for this court to determine is whether or not the answer in this case states facts sufficient to constitute a defense to the action. The answer admits the material allegations in the complaint, and seeks, in a measure, to state facts in avoidance. After pleading in extenso the proceedings in the land department, and the contest and decision therein, in relation to the land mentioned i...
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The question for this court to determinéis this: Is a partner entitled to claim and hold a homestead exemption out of the partnership estate? Section 322, first, division Code of Civil Procedure, reads as follows: “Sec. 322. A homestead consisting of any quantity of land not exceeding one hundred and sixty acres used for 'agricultural purposes, and the dwelling-house thereon, and its appurtenances...
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Opinion by 1. The first contention of appellant is that the indictment is insufficient to charge a crime, because it does not allege in express terms that Hill relied upon the false representations of the defendant to the effect that the paper so given as security was a good and valid promis*88sory note. It is undoubtedly essential, in a case of this character, that the indictment should show tha...
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*106Opinion by The material allegations of the complaint involved in this appeal, in substance, are: That the plaintiff is a corporation organized for the purpose, among other things, of constructing and operating a railroad in this state between given terminal points; that it is necessary and convenient that a tract thirty feet in width on each side of the center line of said railroad as surveyed...
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ON APPLICATION EOR REHEARING. The Secretary is not a mere amanuensis of the Governor. Affixing a seal to a commission not only attests his signature, but declares the legality of the act done. The Governor is not the custodian of the seal. The Secretary i's. If the Governor can arbitrarily direct its use, there is little utility in providing a separate custodian of it. The Secretary necessarily ha...
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Mary F. Corcoran, as administratrix with the will annexed of the estate of William Corcoran, deceased, brought suit against John Hinkel and a large number of other defendants, among whom were the German Savings and Loan Society, William M. Pierson, John R. Jarboe and S. H. Regensberger, the principal object of which was to be permitted to redeem certain premises therein described which Corcoran ha...
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The defendant is administrator of O. W. Craig, deceased. Craig, in his lifetime, and Franklin Sears as sureties, had with G. C. P. Sears as principal made two promissory notes to one Wiclcersham for something over $4,000; and on December 9, 1889; Wickersham had recovered judgment on said notes against all three of said persons for $4,280.40 and costs. The plaintiff herein and said Franklin Sears h...
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(Statement of facts.) This is an action on a policy of insurance issued hy the defendant company on the 5th day of May, 1890, insuring plaintiff against loss by fire on a stock of groceries for the sum of $1,200.00, and store fixtures for the sum of $300.00, all while contained in a certain store building situate in the City of Cheyenne in this State. The building containing the property so insure...
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By the Court, This is an application for a writ of certiorari requiring the board of county commissioners of Washoe county, and John *17 B. Williams, auditor of said county, to certify up the proceedings of said board and auditor, in reference to a certain claim of C. C. Pawning, amounting to the sum of one thousand dollars, for money advanced and expended by him on account of the celebrati...
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Information charges the defendant Wells, jointly with Ollie Hutchings, alias Grace Gilbert, with the crime of forgery. Wells was tried separately, was convicted, and appeals from the judgment and from an order denying a new trial. Appellant contends for a new trial upon several grounds: Because the assistant district attorney, representing the people, in his opening address to the jury made missta...
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The appellants were accused by information of the crime of robbery, and upon a trial Woo Ah Woy and Chung Ki Foon were convicted. The appeal is prosecuted from the final judgment, and from an order denying a new trial. The first objection to the judgment is that the court erred in rendering judgment against the defendants in the case, “because the information upon which said defendants were tried ...
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On March 8, 1892, there was a general municipal election in the city of Sacramento, at which the defendant, Rogers, received the highest number of votes for the office of chief of police of that city. He received a certificate of election and entered upon the duties of the office. This proceeding was brought in the superior court, under section 1111 et seq. of the Code of Civil Procedure, to conte...
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The defendant, Pettit, was elected treasurer of the county of San Luis Obispo at the general election in 1890, for the term of two years, and held his office until January, 1893. June 2, 1891, the other defendants became sureties on his official bond for the faithful performance by him of all his official duties. The present action was brought to recover the sum of $2,316.19, which it is alleged h...
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Proceedings to condemn certain lands for a public street in the city of San Luis Obispo. The jury assessed the value of the land taken from the defendants at $6,500. The plaintiff moved for a new trial, upon the ground that the verdict was not sustained by the evidence. The court below was of this opinion, but held that the evidence would support a verdict for $5,000, and made an order that if the...
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This appeal is from an order setting apart a probate homestead to the widow of deceased. John Vance died testate, leaving a widow and two sons, issue of a former marriage. There were no minor children. The will was duly admitted to probate, but, subsequently, S. A. Vance, one of the sons of the testator, inaugurated a contest, and asked that the probate be revoked. The value of the estate exceeded...
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The respondent, Christena Henke, brought this action to recover $600. The complaint avers in substance that the defendant is a corporation, organized and having for its object the *431payment to its members of certain sums of money at stated times as periodical installment endowments; that on the eighth day of February, 1889, plaintiff became a member of said corporation defendant, and received fr...
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This is an action for a divorce and alimony, and to set aside an alleged fraudulent conveyance of property by defendant, in order that plaintiff may realize alimony from such property. Defendant appeals from an order of the district court awarding plaintiff alimony pendente lite, and counsel fees. We refer to the case of In re Finkelstein v. Curtis, 13 Mont. 425, for a statement of some of the fac...
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This is an action of forcible entry and detainer. In the trial of the cause in the court below, at the close of the testimony on the part of plainliffj the defendant moved for a nonsuit on the ground “that the said plaintiff lias.failed to prove a sufficient cause to entitle him to a judgment herein, inasmuch as he has failed to prove a forcible or unlawful entry of the premises in question.” The ...
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Opinion by 1. Plaintiff did not, at the hearing, controvert the position taken by defendant that if the money sued for was delivered to him to be used in gaming, under the circumstances disclosed, it cannot be recovered in a court of justice, (McKinnell v. Robinson, 3 Mees. & W. 434; Badgley v. Beale, 3 Watt, 263,) but he insists that such a defense is new matter, and must be pleaded before it ca...
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This is an attempted appeal from the judgment. The respondent moves to dismiss the appeal on the ground that the record fails to show that the notice of appeal has been served. Section 4808 of the Eevised Statutes of Idaho, provides as follows: “An appeal is taken by filing with the clerk of the court in which the judgment or order appealed from is entered, a notice stating the appeal from the sam...
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This is an application to revive a judgment. The proceeding was commenced in the court below by petition on the eighteenth day of September, 1889, and alleges as a ground for such revival that the petitioner failed to get title to the land sold in satisfaction of said judgment, or to get possession thereof. To this petition a demurrer was filed, on the ground that the petition did not state facts ...
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The opinion of the court was delivered by This action was brought by the plaintiff to recover of the defendants moneys which it was alleged he as guarantor of a certain note of the defendants had been compelled to pay for and on their behalf. Defendants, by their answer, denied that such guaranty was made at their instance or request, or that the money which the plaintiff as such guarantor had bee...
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The opinion of the court was delivered by The plaintiff, appellant here, brought this action to recover the aggregate amount of three promissory notes executed by the defendant to plaintiff on May 31, 1883, at Big Rapids, Michigan, for §2,000, §2,250 and §2,250, respectively, with' interest at seven per cent, per annum,, and due two, three and four years, respectively, after date. The complaint is...
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This was an equity case, and upon the 4th day of January, 1893, the judge who tried the cause made a certificate to a statement of facts on appeal, stating that it contained all the testimony and objections and exceptions to the acceptance and rejection of testimony. This is precisely the state of facts passed upon in Clark-Harris Company v. Douthitt, 4 Wash. 405 (30 Pac. Rep.744). The motion to s...
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The opinion of the court was delivered by We are of the opinion that the act of January 21, 1893 (Laws, p. 6), authorizing judges whose term of office expired on the second Monday of January to settle and certify statements of facts, did not authorize such a judge, instead of settling and certifying the facts himself, to transfer the matter to his successor in office. Therefore the motion to. stri...
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The opinion of the court was delivered by Appellant was tried and convicted on the charge of an assault with intent to commit murder. The assignments of error are (the arrangement is our own): First: That the court erred in allowing the respondent to indoi’se the name of Charles Harmon as a witness on the information after the trial began. Second: The court erred in allowing the jury to view the p...
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The opinion of the court was delivered by A somewhat cai’eful examination of the voluminous complaint filed in the action, which it is claimed on the part of the relator he is entitled to have transferred to the county of Kitsap for trial, satisfies fis that the substantial object of such suit is to enforce a trust and compel an accounting on the part of the relator in favor of the plaintiffs in s...
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The opinion of the court was delivered by The plaintiffs by this action seek to recover damages from the defendants for an alleged breach of a written and sealed contract entered into between the plaintiffs and the defendants, wherein the former agreed to give and grant to the latter all the useful and salable wood and timber on a certain described ten acres of land, in Chehalis county, and to pro...
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The opinion of the court was delivered by This is an action of ejectment brought by appellants to recover certain lands situate in the county of Pierce. William E. Ackerson died intestate in July, 1884, seized of the lands in controversy, and appellants claim title *378thereto as his heirs. The respondents, through mesne conveyances, claim the land by virtue of an administrator’s sale made March 8...
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The opinion of the court was delivered by By their amended complaint plaintiffs sought to recover of the defendants, as co-partners: on their first cause of action for hauling, transporting and packing certain goods; and on their second cause of action for certain merchandise sold by one Langfitt to the defendants as such co-partners, the account for which was alleged to have been assigned by said...
Views: 0

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