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Opinions in p Volume 62

The facts sufficiently appear in the opinion. Plaintiff claimed to recover judgment upon twelve promissory notes, of the aggregate value of $1,472.03, made payable to the order of V. O. Rosser, and by him indorsed to plaintiff for value before maturity. The answer admits the execution of the notes, but alleges want of consideration, by reason of fraudulent representations by Rosser and one G. H. S...
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The facts sufficiently appear in the opinion. Arnold Maher was indicted, tried, and convicted for the commission of the crime of grand larceny, and was thereupon sentenced by the court to imprisonment "in the state prison of the State of Nevada for a term of five years at hard labor." He is now serving the term of imprisonment imposed, and brings this proceeding for his discharge, basing his right...
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The respondents in this case made application before the United States Land Office at Salt Lake City for patent for the Mountain Mayd and Gold Reef mining claims, situated in West Mountain Mining District, Salt Lake County, and the appellant thereupon filed an adverse claim in such land office, claiming a title to certain mining ground called the Wells Lode, in conflict *325with the ground include...
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The opinion of the court was delivered by Defendant in error brought this action against the city of Pittsburg to recover damages for personal injuries alleged to have been sustained by her because of the defective and dangerous condition of a sidewalk in said. city. The case was tried to a jury, which returned a verdict for plaintiff. Judgment was rendered upon the verdict and the city , brings ...
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The opinion of the court was delivered by The defendants were doing a general merchandise business at Blue Mound, Kan. They were indebted to plaintiff in error in the sum of $1805, and were also indebted to numerous other parties. On the 28th day of December, 1892, they made an assignment for the benefit of their creditors. Afterward they agreed with all their creditors and settled by a payment o...
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The opinion of the court was delivered by J. P. Wren, defendant in error, recovered a judgment in the district court of Bourbon county against the Missouri Pacific Railway Company, plaintiff in error, for damages alleged to have been done to his growing crops by reason of the obstruction by the railway company of a natural watercourse. The case was tried to a jury, which, in addition to a general...
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The opinion of the court was delivered by This action involves the validity of two chattel mortgages, executed by Mrs. Alma Patterson and owned by defendant in error, who as plaintiff herein replevied the mortgaged goods, a florist’s stock, from the plaintiff in error. The latter had seized the same under an execution based upon a deficiency *423judgment in a foreclosure action wherein the Phoenix...
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Tlie opinion of the court was delivered by This was a proceeding in the district court of Osage county to revive a judgment rendered in said court on the 15th day of June, 1891, in favor of the defendant in error and against Adolph Goodwin and Lovell Goodwin, partners doing business as Goodwin Brothers. The motion to revive was filed on the 9th day of June, 1897. The notice of the hearing is date...
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after stating the facts, delivered the opinion of the court. 1. An exception having been taken to the following instruction, it is contended by plaintiff’s counsel that the court erred in giving it, to wit: ‘ ‘ There is one other matter, gentlemen of the jury, that I desire to call your attention to, and that is, there is one place in this answer where the defendant alleges that, if any damage was...
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delivered the opinion. 1. 'This is an appeal from a decree dismissing a complaint in a suit, under section 504 of the statute (Hill’s Ann. Laws), to determine an adverse claim to real estate. The parties are Indian women belonging to the Umatilla and Walla Walla tribes, respectively; both residing upon the Umatilla Reservation. The real property in controversy is a forty-acre tract of such reserva...
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after stating the facts, delivered the opinion of the court. The testimony shows that in 1867 John Dick, James Hand, M. Winegardner, and John Pearson constructed the ditch in question from a point on the west fork of Foot’s Creek to its confluence with Salt Creek, a distance of about three miles, and diverted water from the former stream, which they used about two months to operate a placer mine, ...
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after stating the facts, delivered the opinion of the court. 1. To support the action it is necessary to show that the prosecution complained of was instituted with malice and without probable cause. These are two essential and distinct ingredients, without the concurrence of which it cannot be maintained. The prosecution may have been without probable cause, but, if set in operation without malic...
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delivered the opinion. 1. The statute provides that the state shall be deemed a party defendant in any suit for the dissolution of the marriage contract, or to have the same declared void (Hill’s Ann. Laws, § 977); that the district attorney shall be allowed a fee of $10 for actually defending the same on behalf of the state (section 1073). And the plaintiff is required by the act of 1878 to depos...
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Mandamus. The plaintiff asks the peremptory writ of the superior court of Fresno county commanding defendant, as treasurer of said county, to pay plaintiff, as the owner of all the lands in reclamation district No. 647, the amounts found to be due it out of the moneys in his hands to the credit of the swamp land fund of said county. Defendant demurred to the complaint for insufficiency of facts. T...
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This appeal is from an order made upon the petition of the respondent, Frankie White, granting her a writ of assistance to obtain possession of certain real estate then in the possession of appellant, Rohrbough, who claims under a lease from the plaintiff, George E. White. The following statement of facts is condensed from said petition: In December, 1885, George E. White commenced a suit against ...
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This action was brought to annul an order issued by the board of trustees of said school district to the county superintendent of schools, requiring him to draw a requisition upon the county auditor to draw a warrant against the high school fund for the amount of nine hundred and twelve dollars and eighteen cents "in favor of Theodore Lutge, or order, on account of and in full of third installment...
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[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 369 The plaintiff recovered judgment for the sum of eight hundred dollars, with interest from April 16, 1892, and costs – the principal sum adjudged being the amount of the consideration paid by the plaintiff to the defendant on a contract of the date named w...
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Appeal from judgment on the judgment-roll and a bill of exception. The facts are substantially as follows: On the 25th of August, 1897, one Lutge entered into a written agreement with the "Long Beach city school district" *Page 393 in Los Angeles county to furnish material and build a public schoolhouse in the town of Long Beach upon the premises described in said agreement for the sum of eleven ...
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This is an action to recover possession of a part of a quartz mining claim called the "Belmont," together with damages for certain alleged trespasses committed thereon by the defendant, and to obtain an injunction to prevent the defendant from taking rock and gold from said claim, and from interfering with it in any way. The case was tried by the court without a jury; the court found all the mater...
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The petitioner was subpoenaed before the grand jury sitting in the city and county of San Francisco, and having been sworn as a witness before that body, there were propounded to him certain interrogatories. Upon his refusal to answer, the foreman of the grand jury made affidavit setting forth at length the questions which had been propounded to the contumacious witness, and stating that the body ...
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This is an appeal from the judgment. The action was to recover upon an insurance policy, and this appeal involves its construction and interpretation. On December 15, 1891, the defendant herein issued a twenty payment life rate endowment policy for five thousand dollars on the life of George W. Rife, the annual premium upon which policy was one hundred and thirty-six dollars and ninety-five cents....
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The facts appear in the opinion....
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after stating the facts, delivered the opinion of the court. Two questions are urged here, which, it is argued, are indisputably fatal to the validity of the alleged assessments. These are.(i) that no sufficient notice was ever given to the plaintiffs, nor were they afforded an opportunity of being heard upon the question of the proportion of the cost to- be assessed against each lot or parcel of ...
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Jacob Rich was adjudicated an insolvent by the superior court of Santa Clara county June 4, 1896, and in *495 due time thereafter filed his petition to be discharged from his debts. The Santa Clara Valley Mill and Lumber Company, a corporation, is one of the creditors of said insolvent, and for the purpose of opposing his discharge filed certain specifications— twelve in number—of the grounds o...
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This action was brought to recover for services rendered as an attorney at law. Defendant filed a counterclaim and cross-demand, alleging damages accruing by reason of legal advice negligently given. The action has been before this court upon two previous occasions, but the point now raised by this appeal is presented for the first time. The cross-demand for damages set forth in defendant's answer...
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Appeal from a judgment for the defendant and an order denying a new trial. The action was brought to recover the sum of three hundred and forty dollars for services rendered by the plaintiff in effecting a sale of defendant's land. On the trial the court refused to hear evidence of the contract on the ground it was not in writing. The cases comes directly under the provisions of section 1624, subd...
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W. L. Pierce, in certain proceedings touching the guardianship of an insane person, had, by order of the superior court and of Hon. Carroll Cook, judge thereof, been allowed the sum of three thousand eight hundred dollars as attorney’s fee, which sum was paid out of the funds of the insane person. Thereafter this petitioner, a party in interest, applied to the superior court for an order: 1. Vaca...
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This action was brought to foreclose the lien of a street assessment for work done in 1892. The plaintiffs, at the trial, following the usual practice in cases of this class, put in evidence the assessment, including the warrant, diagram, certificate of the city engineer, and a printed copy of a certain resolution of the board of supervisors, and rested. To this evidence, however, defendant made c...
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[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 399 The defendants are the trustees of the town of Etna, in Siskiyou county. In May, 1898, the plaintiff presented to said trustees a petition for a franchise to erect and maintain poles and wires along the streets of said town for the purpose of conveying el...
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This appeal is from a judgment rendered against the sureties on an undertaking given to secure a stay of proceedings on appeal to the supreme court, after notice, and in pursuance of a stipulation contained in the undertaking. The appeal is by the sureties. The undertaking was given on appeal from a decree of final distribution in the above estate dated July 27, 1896. The appeal was taken November...
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Upon January 10th certain creditors of one Whipple filed a petition asking that he be adjudged an insolvent debtor. It was asserted therein that Baily was one of the creditors, and as such creditor he made affidavit to the petition. Thereafter, January 14th, for reasons not apparent in the record, a second petition was filed, and a demurrer to this petition being sustained, an amended petition the...
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In July, 1892, proceedings were taken by the board of supervisors of Glenn county to lay out and establish a public road, in part over lands of the defendants, and the viewers awarded to the defendants, as nonconsenting landowners, damages in the sum of one thousand and ten dollars, and an order was made setting aside that sum out of the funds of the proper road district. At the time there was not...
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This is an action in mandate to compel the auditor of the county of Santa Barbara to issue his warrant on the county treasurer of the county for the salary of petitioner as district attorney, at the rate of two hundred and eight dollars and thirty-three cents a month. The auditor declined to issue his warrant in that amount, but was willing to issue it for the sum of one hundred and twenty-five do...
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This is an action by plaintiff to enforce the statutory liability of the stockholders for a debt of the corporation. Judgment passed for defendants. Plaintiff *514moved for and obtained an order granting him a new trial and from that order defendants appeal. The complaint, so far as is necessary for the consideration of the questions here presented, shows that the Consolidated Piedmont Cable Compa...
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Defendant has been convicted of murder, and appeals to this court. Defendant was arrested some months after the commission of the homicide. When arrested he was searched, and upon his person were found two letters purporting to have been written by a Chinese society known as Suey Ying Tong, and addressed to another Chinese society known as Woo Soon Tong. The contents of these letters were to the e...
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The plaintiff, as assignee of one Blake, brought suit against Clabrough for the sum of six hundred and thirty-two dollars and eighty-five cents, which, it is alleged and found, "Clabrough in his lifetime received for and on behalf of ____ Blake ____ to be held by said ____ Clabrough until demanded by the said ____ Blake." On the death of Clabrough the suit was continued against his executors, agai...
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The deceased, Nora Langdon, died testate, leaving a will which contained, among other provisions, the following: "Eighth. All the rest and residue of my estate I give, devise, and bequeath unto my nephews, Callaghan Byrne, James W. Byrne, and Fred Byrne, in equal portions." In due course of administration J. W. Byrne and Callaghan Byrne, two of the aforesaid nephews, filed a petition for distribut...
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Action to enforce a street assessment for grading Greenwich street from Polk to Franklin street. Judgment went for plaintiffs, from which and from an order denying a new trial the defendant appeals. We see nothing in the record to overcome the prima facie case made by respondent by the introduction of the assessment, warrant, and. accompanying documents. There are some affidavits printed in t...
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In this case the court below sustained a demurrer to the complaint, without leave to amend, and dismissed the case. Plaintiff appealed from the judgment of dismissal. The complaint alleges, in substance, that in or about the month of January, 1883, the plaintiff was, and ever since has been, uneducated, and of a credulous, confiding disposition; that one John Dunn and the defendants Evans and Rodd...
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This is an appeal by plaintiffs from an order of the court granting defendants' motion for a new trial. The action was instituted by plaintiffs to recover possession of certain mineral land, for an injunction restraining defendant from extracting ores, and for damages. The following facts were disclosed without conflict in the evidence: On the tenth day of October, 1898, the defendant St. John and...
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This is an action to determine conflicting claims of plaintiff O’Toole and defendant Dolan to the sum of seven hundred and fifty dollars placed in the hands of defendant McAllister by Parker and Shimer to abide the determination of the controversy. The cause was tried by the court, and findings and judgment were for defendant Dolan, and plaintiff appeals from the judgment and from an order denyin...
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The opinion of the court was delivered by The motion of respondent J. L. Kelly to dismiss the appeal of the Crystal Mining Company because of failure to send up the record in time cannot now be entertained, under the rule announced in Gustin v. Jose, 10 Wash. 217 (38 Pac. 1008), as the record was filed before the motion. This action, as originally brought, was by W. H. McNamara, as plaintiff, agai...
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*656The opinion of the court was delivered by In October, 1898, the city council of Seattle passed an ordinance providing, “that a special committee consisting of the whole membership of the city council, or so many members as may be able to serve, and such executive officers as may be chosen by the city council, be and hereby are appointed to visit the cities of Duluth, West Superior, St. Paul a...
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The opinion of the court was delivered by This was an action brought on the relation of the respondent, Florence P. Embree, to obtain a peremptory writ of mandate commanding the city treasurer of the city of Seattle to accept a certain sum for the *652redemption of certain property in the city of Seattle from liability for the payment of bonds issued for local improvements. The improvement was mad...
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This is an action to enforce a lien against certain land of the defendants Adeline B. Park and her husband, William Park, alleged to have been created by a certain instrument in writing made by and between plaintiff and one Perrin, who was said defendants' predecessor in interest in the land. The other defendants are made parties as claiming some interest in the premises. Defendants demurred to th...
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Defendant was the owner of a certain mine, and had contracted with a third party for the sale of it upon certain terms – in substance, that the purchaser should be put in possession for a specified time for the purpose of examination and development, and, if found satisfactory, to pay therefor a specified price. Plaintiff was an experienced miner and expert, and was well acquainted with the locati...
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[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 516 Action on a contract, entered into by defendant's testator and plaintiff's assignor for the sale of land by the former to the latter, to recover the deposit made by plaintiff on account of the purchase. Plaintiff had judgment for the amount of deposit, to...
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The petitioner, Werner, was convicted in the justice's court of Pasadena township and sentenced to pay a fine of fifteen dollars, or, in default of such payment, be confined in the county jail of Los Angeles county for the period of fifteen days. On appeal to the superior court of Los Angeles county the judgment of the justice's court was affirmed. The relator, failing to pay his fine, was committ...
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The plaintiff herein was appointed as a receiver in a suit brought by the intervenor for the foreclosure of a mortgage upon certain lands in Sutter county, *Page 565 and brought this action as such receiver to recover possession of certain cattle claimed by him to be the rents and profits of the mortgaged property. It is contended by appellant that the plaintiff cannot recover in this action beca...
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The defendant was indicted by the grand jury of the county of Tuolumne for the crime of murder, in the killing of one William Spencer Gilliard, and was tried and convicted of murder in the first degree. The appeal is taken from the judgment entered upon said verdict and from the order overruling defendant's motion for a new trial. The appellant presents and urges three grounds of error for a rever...
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This action is based on section 803 of the Code of Civil Procedure, and was brought to have the franchise of defendant to maintain a street railway on Bush and other streets of San Francisco declared forfeited, and to have defendant adjudged to have usurped a franchise and fined in a sum not exceeding five thousand dollars, as provided in section 809 of the Code of Civil Procedure. The plaintiff h...
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Mandamus to compel the respondent, as judge of the superior court of the county of San Joaquin, to settle a bill of exceptions. In the petition for the writ it is alleged that in an action wherein the petitioner was plaintiff and the south school district of San Joaquin county and others were defendants, tried before the respondent, a judge of the superior court of said county of San Joaquin,...
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This action was brought by. plaintiff as road ■commissioner, for the purpose of having abated as a public nuisance a fence erected and maintained by defendant upon an alleged public highway. The case was tried before the court -without a jury, findings filed, and judgment entered in favor -of defendant. This appeal is by plaintiff from the judgment -and from an order denying his motion for a new ...
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The defendant was convicted of the crime of murder in the second degree, and appeals from the judgment and from an order denying a new trial. The killing took place in the county of San Diego, near the village of Hedges. A man had been stabbed there by one Rosales, who had escaped. The people of the village, or many of them, including the defendant, were in pursuit of the fugitive, who – as also t...
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Motion to dismiss the appeals. The appeals herein were taken June 24, 1899, and purport to be from a judgment dismissing the action, and also from an order made after judgment. The transcript on appeal was filed August 5, 1899. March 8, 1900, the respondent gave notice of the present motion to dismiss the appeals upon the ground that no sufficient undertaking on appeal had been filed. As there are...
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The opinion of the court was delivered by The defendant in error filed his petition in the district court of Marion county against Alex. E. Case, Maria H. Case, and others, in which he alleges, among other things : “The plaintiff for cause of action against the» defendants says : That on the 7th day of June, 1888, the defendant Alex. E. Case and others made, executed and delivered to one S. H. Gri...
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This was an action to recover eighteen hundred and seventy-five dollars, the price of certain nursery trees, under a written contract between the parties, and also for four hundred and thirty-nine dollars as the increased value of the trees after demand upon defendant therefor. Defendant asked for a reformation of the contract, and for a recission of it as revised. The court gave him judgment as p...
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Motion to dismiss the appeal. The complaint herein seeks the foreclosure of a mortgage given to secure two promissory notes executed to the plaintiff by the defendants. In their answer the defendants, in addition to other defenses, allege that the plaintiff subsequent to the execution of the notes had extended the time for their payment, and that this time had not expired when the complaint was fi...
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This is an action brought by plaintiff to determine his possessory right to a certain quartz mining claim. The defendants pleaded an entry upon the land in question as vacant and unoccupied mineral land, and a compliance upon their part with the laws governing the location and working of such a claim. The land is part of a claim admittedly first located by plaintiff and called by him the Ontario m...
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The opinion of the court was delivered by Tenth Avenue South is one of the public streets of the city of Seattle, extending south from Main street in said city. J ackson street is the next street south of, and parallel to, Main street, and south of that is Lane street. On the west side of Tenth Avenue South there was a wooden sidewalk about eight feet wide, and upon this sidewalk, between Main an...
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The opinion of the court was delivered by The amended complaint in this action, omitting the formal parts, is as follows: “That- at all the times herein mentioned the circuit court of the city of St. Louis, in the state of Missouri, was> and ever since has been, and now is, a court of general jurisdiction over matters in equity and law, duly organized and existing under and by virtue of the law...
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The opinion of the court was delivered by The respondent, Andrew Knox, is the receiver of the Friday Canning Company, a corporation existing under the laws of the state of Washington, and was appointed such receiver on the 27th day of August, 1898, by the superior court of Snohomish county, in an action wherein John Walsh was plaintiff and the said Triday Canning Company was defendant. The princi...
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The opinion of the court was delivered by Article 4 of the charter of the city of Seattle contains, among others, the following provisions: “ Sec. 1. All legislative power of the city of Seattle shall be vested in a mayor and a city council.” “ Sec. 10. Every legislative act of said city shall be-by ordinance. Every ordinance shall be clearly entitled and shall contain but one object, which shall ...
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The opinion of the court was delivered by The statute relating to the assessment and collection of taxes contains the following provision: “If the county treasurer has reason to believe, or is informed, that any person has given to the assessor a false statement of his personal property, or that the assessor has not returned the full amount of property required to be listed in his county, or has ...
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The opinion of the court was delivered by This is an action brought by the appellant, a domestic corporation, for the recovery of certain furniture and house furnishing goods. The complaint *672was, in form, that commonly used in this state for the recovery of personal property in specie. The respondent, who was defendant below, after denying the allegations of ownership and right of possession o...
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The opinion of the court was delivered by On November 22, 1898, at Seattle, one Lucy Wilcox, then a resident of that city, died, seized in fee simple of lot 8 in block 52 of A. A. Denny’s Extension to Terry’s Addition to the city of Seattle, known as “704 Spring Street,” leaving a last will, under which appellants, Greene and Harrington, were made executors without bonds. On December 15, 1898, he...
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(after stating the facts.) It is admitted by the pleadings in this case that the note and chattel mortgage were executed and delivered by the defendant to the mortgagee for an adequate consideration, *264and it is not denied that the note is entirely unpaid, as alleged in plaintiff’s petition. It is the general rule that an instrument intended to operate as a chattel mortgage is valid between the ...
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On the first day of September, 1897, the ward then reaching his majority, William A. Eobins, guardian of the person and estate of George Henry Nagle, a minor, presented his final report. The guardianship thus terminating had continued from the date of the original appointment, December 9, 1891. Both parties were at all times residents of Laramie County, in this State, and the appointment was made ...
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This action was commenced in the superior court of Fresno county by the American Savings and Loan Association, a corporation having its place of business at Minneapolis, in the state of Minnesota, to foreclose a mortgage executed by John A. Barker and wife upon property situate in Fresno. Prior to the commencement of the action defendant W.H. McKenzie became the owner of the mortgaged property, an...
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Defendant was convicted of embezzlement, and has appealed from the judgment and from an order denying his motion for a new trial. *5331. It is claimed that there is a variance between the information and the proof as to the instrument described in the information. We are simply told by appellant’s counsel that “the variance is a fatal one.” No reason is given as to the theory upon which counsel cl...
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This action was brought by plaintiff for the purpose of recovering two thousand four hundred dollars damages, alleged to have been caused by the defendant’s wrongful entry upon the premises described in the complaint and converting the crops thereon to his own use. The premises had been leased by defendant to plaintiff, and the entry complained of was during the continuance of the lease. The case...
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This action was brought to recover $879.90 balance due on a promissory note made by defendant's intestate. Upon the first trial the court below found that the note had been fully paid, and ordered judgment for defendant. This judgment was reversed here upon the ground that the evidence was insufficient to sustain the finding, and the cause was remanded for a new trial.(Griffith v. Lewin, 125 Cal. ...
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Application for writ of mandamus requiring the defendant to levy taxes for the support of the common schools of the Woodland school district, and for the support of the Woodland high school. Judgment was rendered for defendant on demurrer to the petition, and plaintiff appeals. Woodland is a city of the fifth class, organized under the provisions of chapter VI of the municipal corporation acts of ...
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Plaintiff appeals from a judgment against him for costs, and from an order denying him a new trial. The action was commenced April 20, 1896, and is to recover the amount of a promissory note dated November 19, 1891, for four thousand seven hundred and fifty dollars and interest. This note is signed: "Kate C. Perry, guardian for the person and estate of Florence Blythe, a minor." In addition to the...
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In an action pending in the superior court of Madera county, wherein the defendants herein were *Page 591 plaintiffs and the Madera Fruit and Land Company et al. were defendants, the plaintiff herein, at the instance of the plaintiffs in that action, was appointed as receiver of certain lands and premises described in the complaint in said action, on February 1, 1894, and thereupon entered upon h...
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Action to abate a nuisance and for damages. The cause was tried by the court without a jury, and defendants bad judgment, from which, and from the order denying his motion for a new trial, plaintiff appeals. Defendants are husband and wife, and plaintiff is road commissioner of the Hueneme road district, in Ventura *521county, and as such brought the action. The complaint alleges : That on Decembe...
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The case is a proceeding for mandamus to the defendant requiring him to issue to the plaintiff a warrant for ten dollars, his salary for the month of April, 1899, as constable of township Mo. 7, Contra Costa county. The plaintiff had judgment in the court below. The case involves the construction and validity of section 183, subdivision 14 of the County Government Act of 1897; which provides ...
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In September, 1872, the city of Los Angeles passed an ordinance granting to the Southern Pacific Railroad Company a right of way along Alameda street in said city in the following terms: "The mayor and common council of the city of Los Angeles do ordain as follows: "Section 1. That the right of way for the railroad track of the Southern Pacific Railroad Company in and out of the city of Los Angele...
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The appellant was charged with the murder of one John Sheehan, and was convicted of murder in the second degree. He appeals from the judgment and from an order denying his motion for a new trial. We will notice the five points made for a reversal. The contention of appellant that the verdict is contrary to the evidence cannot be maintained. It was clearly shown, and is admitted by appellant, that ...
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These actions were both actions to foreclose mortgages executed by the defendants to secure their promissory notes. The notes and the securities passed by sundry transfers and assignments to this plaintiff. The questions involved upon these appeals are identical, and the cases may therefore be considered and decided together. The defendants executed their promissory notes, secured by mortgages upo...
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Appeal from judgment on the judgment-roll. The action was brought to recover of defendants the amount due for water furnished by plaintiff to defendants under certain written contracts, and to have the amount declared to be a lien upon the lands of defendants. The plaintiff recovered judgment and the amount was declared to be a lien upon the lands of defendants, but plaintiff claims that the judg...
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This is an application for a writ of prohibition against the superior court of Los Angeles county. The petitioner, having obtained a judgment against "The Bankers' Alliance of California," a corporation, had an execution issued thereon, and levied or attempted to levy the writ upon certain moneys, credits, and personal property under the control of one Washburn, who claims to be holding the same a...
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The facts appear in the opinion....
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delivered the opinion. This is a mandamus proceeding, commenced in April, 1897, to compel the then grand jury of Multnomah County to inquire into a criminal charge against one Anderson, who had previously been committed to await its action. *543The grand jurors answered, setting up matters which they claimed constituted a defense to the alternative writ. A demurrer to the answer was overruled, and...
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From a judgment rendered against them, and from an order of the court refusing to modify the findings and the judgment in certain particulars, the defendants, the city of San Diego and the Southern California Mountain Water Company, a corporation, jointly gave notice of their appeals. This is a motion to dismiss those appeals upon the ground that they are not supported by any bond or undertaking ...
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This is an action brought to reform a contract and to recover damages for an alleged breach thereof. The question arising upon the appeal is presented upon the face of the complaint. We will consider the single proposition, Do the facts alleged justify a reformation of the contract as prayed for? The facts are these: Plaintiff J. W. Mabb and defendant Merriam verbally agreed to exchange lands. ...
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Action upon a street assessment. Judgment was rendered in favor of the plaintiff, and the defendants have appealed therefrom. Within ten days after the expiration of the time for the publication and posting of the resolution of intention to order the work, the owners of a majority of the property fronting upon the proposed work made and delivered to the clerk of the board of supervisors their writ...
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Action upon a street assessment. Judgment was rendered in favor of the plaintiff, and the defendants have appealed therefrom. Within ten days after the expiration of the time for the publication and posting of the resolution of intention to order the work, the owners of a majority of the property fronting upon the proposed work made and delivered to the clerk of the board of supervisors their writ...
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This action was brought by the plaintiff against defendant Hall as principal, and the other defendants as sureties, on Hall’s official bond given by. him as recorder of Sonoma county, to recover damages for a breach of said bond in failing to deliver to the county auditor on the expiration of Ms term of office a certain fee-book in which was entered the fees and compensation chargeable and collec...
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This is an action to remove the cloud of a street assessment lien from the title of plaintiffs to several lots in the city of San Diego. June 16, 1896, the common council of San Diego passed a resolution of intention to order a described portion of First *Page 636 street to be "sidewalked," excepting such portions of said First street and intersections between said points as have already been sid...
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Plaintiff had judgment by default against defendant Parsons. The defendant Bowles answered, and on a trial the verdict and judgment were against him. From said judgment and from an order denying him a new trial the defendant Bowles appeals. The complaint in the case sets forth facts showing a sale and delivery to defendants, and each of them, of a one-half interest in a saloon and fixtures and mat...
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This is an appeal from an order, made and entered on motion of plaintiff, dismissing the action. It appears from the bill of exceptions that the cause was here once before on appeal, and, the plaintiff confessing error in the overruling of defendant's demurrer, the "judgment was reversed and the cause remanded." Theremittitur was, on motion of defendants, entered in the minutes of the trial court ...
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Action on promissory note executed by defendant to plaintiff. Plaintiff had judgment, from which defendant appeals on the judgment-roll. The note sued upon was for six hundred dollars, and was dated May 22, 1894, and among other things contains the following provision: "Thirty days after written notice is served upon me for payment, I promise to pay," etc. The complaint alleges as follows: "That h...
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Plaintiff Plaintiff appeals from a judgment in favor of the defendant, from an order denying his motion for a new trial, and from an order denying his motion to strike out defendant’s cost bill. Appellant claims a certain interest in the water of a stream called the Arroyo Seco, and had been taking the water by connection made with a pipe of the respondent and paying respondent certain customary ...
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1. PARTNERSHIP – DISSOLUTION – ASSUMPTION OF LIABILITIES. Where a partnership is dissolved by one partner selling to his copartners all his interest in the business and assets of the firm, it is competent for them to contract as between themselves who shall assume the liabilities of the partnership, and if the contract is silent on the question it will be inferred that the purchasing partners assu...
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By the Court, On the 14th day of January, 1899, O. Lonkey filed his claim against the estate of C. C. Powning, deceased. The claim was based upon a note executed by the decedent in his lifetime, the original being attached to the statement of the claim and the affidavit in support thereof. Oh the 10th day of February, 1899, the administratrix rejected said claim, for the reason that the affidav...
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The appellant was charged by indictment with the crime of grand larceny, and upon a trial therefor was convicted, and sentenced to imprisonment for a term of five years. He appeals from the judgment. First – It is contended that the court erred in refusing to give to the jury instructions numbered 2, 12, 13 and 14 asked by the appellant. Each of the instructions bears the endorsement of the distri...
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This is an action by the state, on the relation of W. E. Winnie, the district attorney and an elector of Storey county, against the respondents, the board of county commissioners of said county, to compel them as such board to cause their clerk, by proper order, to issue the necessary notice of the ensuing general election for members of the state senate and members of the assembly under the appor...
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The facts sufficiently appear in the opinion. *Page 435 The defendant was convicted in the Second Judicial District Court in and for Washoe county of the crime of burglary, and by the judgment of the court was sentenced to imprisonment in the state prison for the term of one year. *Page 442 He appeals from the judgment, and from an order denying his motion for new trial. Motion to Set Aside Indi...
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The opinion of the court- was delivered by In this case Patrick Coggins was convicted upon each of the eleven counts of an information *456charging violation of the prohibitory liquor law, and was given the minimum sentence upon each count. He appeals, and alleges numerous errors of the trial court. The first alleged error relates to the action of the trial court in overruling the defendant’s moti...
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The opinion of the court was delivered by On the 25th of January, 1887, the Capital Investment Company was incorporated under the laws of Kansas for the purpose of “the purchase, location and laying out of town sites, and the sale and conveyance of the same in lots and subdivisions, or otherwise; and the accumulation and loan of funds, the erection of buildings, and the purchase and sale of real ...
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The opinion of the court was delivered by On December 20, 1886, Vachel H. Al-bright, then the owner of the land mortgaged, together with his wife, Susan M. Albright, executed and delivered to John D.' Knox & Oo. two promissory notes for $500 each, payable one in three years and *114one in five years from said date, secured by a mortgage on real estate. These notes and mortgage were sold and assig...
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The plaintiff in error seeks by this proceeding to reverse an order of the common pleas court granting to defendant in error a new trial. There are nine assignments of error, none of which we deem it necessary specially to refer to save the last, which is, that the court erred in sustaining the motion and in granting a new trial. The action was for damages to the property of the defendant in error...
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The appellant recovered judgment in the court below for damages (seventeen hundred and fifty dollars)., resulting from her falling down a negligently constructed staircase leading from the defendant's storeroom, where she had just been employed by the defendant, to the basement. The court granted a new trial on the ground of newly discovered evidence; and the grounds urged for reversal are: 1. Tha...
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Suit to quiet title. The defendant alleged an interest in a portion of the lands described in the complaint, by virtue of a deed of trust executed by the plaintiffs grantor to secure an indebtedness to it, and disclaimed as to the remainder of the land described in the complaint. Judgment was rendered against the claim of the plaintiff so far as it extends to the lands in which the defendant cl...
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Appeal by defendants from an order granting a writ of assistance. 1. It is claimed that the court erred in shortening the time for hearing the application for the writ from five to three days. The power to shorten the time is given by section 1005 of the Code of Civil Procedure. The order of the court reads: "Good cause appearing to me therefor, it is ordered," etc. There is nothing in the record ...
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[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 642 Action to have certain one thousand bonds of defendant district, in part issued and in part unissued, adjudged void; to compel each of certain defendants to disclose the bonds held by him, and to bring them into court to be canceled and destroyed, and mea...
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Action to recover certain money alleged to have been received by defendant between the filing of a complaint by it on foreclosure and the making of the default decree, and the sheriff's sale thereunder, for which no credit was given. Defendant had judgment, from which and from the order denying his motion for new trial plaintiff appeals. The complaint sets forth the following among other facts: Pl...
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This is a motion to dismiss defendant's appeal from the judgment, upon the ground that the appeal was taken after the statutory period had elapsed. This fact is not denied, but in resisting the motion it is shown that some eighteen days before the expiration of the six months allowed for appeal the plaintiff, in whose favor the judgment was rendered, had died, and that only after the expiration of...
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Suit on promissory note of date July 30, 1898, for five thousand seven hundred and ten dollars, with interest, etc. Judgment was rendered for plaintiff against the defendant Rikert, and for the defendant corporation against the plaintiff for costs. The appeal is from the latter judgment; and the sole question involved is whether the note sued on was the note of the latter defendant. The note is si...
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This is a proceeding in mandate to compel the defendant, as county auditor, to draw his warrant for the amount of a claim allowed by the board of supervisors. By general demurrer the defendant questioned the legality of the claim. The demurrer was overruled, and, defendant failing to answer, plaintiff had judgment, from which defendant appealed. But although an order was made dispensing with a st...
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Action to quiet title to the east half of the northwest quarter of section 25, township 1 north, range 9 west, situated in Los Angeles county, and of which plaintiff claims to be the owner. Defendant denied plaintiff's ownership and denied that defendant claims any interest in the land except "the right to maintain in San Dimas creek (which flows over said land) a dam at a point about one hundred ...
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This action was brought to compel the defendant to pay assessment No. 16, levied on his land in 1896, for reclamation purposes. Plaintiff had judgment declaring the amount of the assessment to be a lien on said land and directing *Page 623 that the same be sold to satisfy said lien and costs. From this judgment and from an order denying him a new trial the defendant appeals. The reclamation distr...
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Defendant was convicted of the crime of forgery and sentenced to a term of eight years in the state prison at Folsom. He brings this appeal from the judgment and from an order denying his motion for a new trial. The charging part of the information was as follows, to wit: "The said E.J. Cole, on the _____ day of August, A.D. 1899, at the said county of Sacramento, in the said state of California, ...
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Opinion of tbe court by Tbe plaintiff, William P. Conger, sued Charles F. Colcord in tbe probate court of Oklahoma county for the sum of $188.14 on account, for board and lodging furnished, labor performed, and money expended for W. K. Colcord, the father of the defendant. One of the items embraced in the account was “To Mrs. Staats, 33 days nursing, $83.00.” The petition was filed April 29, 18...
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STATEMENT OF THE CASE. It appears from the record that H. C. St. John owned a tract of land consisting of about twenty-seven acres near Oklahoma City, upon which he resided with his two minor children at the time of his death, and that St. John at the time of his death left no surviving wife. On the day of his death the two small children were removed to a boarding house in Oklahoma ...
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STATEMENT OF THE CASE. This is an action of replevin, instituted in the district court of Noble county, on the 4th day of December, 1897, against the defendant, S. A. Akins. It is alleged in the petition that one J. W. Augustine, was engaged in carrying on a dry goods business in the city of Perry, and made a property statement to the R. G. Dun Mercantile company, which statement was...
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Opinion of the court by The plaintiff below, Birdie F. Easter, brought an action in the probate court of Grant county against J. D. Fox to recover damages for a breach of contract. The cause was tried in the probate court and judgment rendered in favor of the plaintiff. The case was then appealed to the district court of Grant county, where it was again tried and judgment rendered in favor of plai...
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Opinion of the court by This was an action brought in the district court of Woods county on the 27th day of February, 1896, by the Alva State bank against the defendants in error, to'enjoin the collection of a portion of the tax assessed and levied against the plaintiff in error for the year 1895, on the ground of excessive assessment. The material averments in the petition are in substance tha...
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Opinion of the court by. The appellant, C. B. Utsler, was indicted, tried and convicted, in the district court of Garfield county, of the offense of permitting gambling in a room where intoxicating liquors were sold, and sentenced by the court to pay a fine of $500.00. From this judgment the defendant appeals. Ten errors are assigned by the appellant for the reversal of this judgment. It is first ...
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after stating the facts, delivered the opinion of the court. Our statute relating to the punishment of contempts provides that, when not committed in the immediate view and presence of the court, “ before any proceedings can be taken therein the facts constituting the contempt must be shown by an affidavit presented to the court or judicial officer : ’ ’ Hill ’ s Ann. Laws, § 653. This affidavit i...
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Plaintiff brought its action against defendant to recover the sum of five hundred and fifty-one dollars, the amount of a license tax which it averred was due to it from defendant under the terms of an ordinance of the county exacting a license from all persons engaged in the business of "raising, grazing, and pasturing sheep" within the county. The cause was tried before a jury, which rendered its...
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The appeal is from the judgment. The prayer of the complaint is that defendant be decreed to hold the legal title to certain land in trust for plaintiff. The material allegations of the complaint are: That plaintiff was in the possession and occupation of public land of the United States, which land was subject to homestead entry. Plaintiff was qualified to enter the land under the homestead laws,...
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Suit to quiet title. The land involved in the action is a strip forty feet in width, lying within block 55 of Bamona, in the county of Los Angeles. Both parties derive title under a common grantor, the San Gabriel Wine Company. The conveyance to the defendant’s grantor, the'San Gabriel Valley .Bapid Transit Bailway Company, was made February 7, 1888, and granted, bargained, and sold to it, its su...
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The suit was brought in the justice's court of the city and county of San Francisco for the unlawful detainer of a lot in that city, and for the recovery of possession and the value of the use and occupation. The case was carried by appeal to the superior court, where judgment was rendered for the plaintiff for the restitution of the premises and for the sum of one hundred and fifty dollars and co...
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[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 3 The defendant was convicted of rape. The appeal is from the judgment and from an order denying a new trial. The points urged for reversal are, that the information was insufficient to sustain the judgment; that the verdict was contrary to the evidence; and ...
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Defendant appeals from a judgment in plaintiff’s favor and from an order denying its motion for a new trial. This action was brought to recover $4,000 alleged in the first count of the complaint to be due under a contract whereby the assignors of plaintiff, Lewelling and Van Syckel, agreed to and did build and erect certain water-gas apparatus at the gasworks of said defendant in Petaluma, for the...
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This is a motion to recall and correct the remittitur originally issued herein. The judgment of the superior court was reversed October 31, 1899, without inserting in the order any direction as to costs (126 Cal. 516), and under rule XXIII of this court it became the duty of the clerk to enter upon the record a judgment that appellant recover its costs of appeal, and to insert this direction in th...
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Action for false imprisonment. Defendant demurred to the complaint for insufficiency of facts, and his demurrer was sustained without leave to amend. Plaintiff appeals from the judgment. The case turns upon the sufficiency of the affidavit in the original action of Marsh v. Fkumoto, to confer jurisdiction to make the order of arrest. The arrest was caused under subdivisions 1 and 5 of section 479 ...
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This action is brought to determine adverse claims to certain real estate, described as lots 1 and 2 in section 32, township 8 south, range 24 east, comprising about thirty-one acres of land. Plaintiff relies upon a patent from the United States issued to his grantor; and defendant relies upon a patent from the state under the swamp and overflowed act of Congress, passed September 28, 1850. No evi...
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Upon the argument following the rehearing in this case, it was urged, first, that the evidence showed beyond a conflict that plaintiff was guilty of contributory negligence. This matter is considered in the opinion heretofore rendered in Department, and the conclusion was there expressed, that the question of the contributory negligence of the plaintiff was one which, under the facts, was proper f...
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Defendant was convicted of the crime of embezzlement, and was sentenced to five years’ imprisonment at San Quentin. He appeals from the judgment and from the order denying his motion for a new trial. There is no brief on file for the people. The prosecuting witness and the defendant were the only witnesses sworn at the trial. Defendant insists that the evidence wholly fails to sustain the verdict ...
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Plaintiffs brought this action in the superior court upon a promissory note executed to them by the defendant, and caused a writ of attachment to be issued and levied upon certain personal property of the defendant. A motion to dissolve the attachment was made by the defendant, and was denied by the court on June 24, 1899, on which day an order was made setting the cause for trial on June 26th an...
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This is an appeal by defendant from an order modifying a decree, given and made November 18, 1896, by which plaintiff obtained a divorce from defendant on the ground of her extreme cruelty, and awarding the custody of their three minor children to defendant. On November 22, 1897, plaintiff filed a verified petition in the action, setting forth, among other facts, that defendant is residing with sa...
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Six of the eight jurors in this case returned a verdict in favor of the respondent, for $6,242.50, and a judgment for that sum with costs was rendered against the appellant in favor of respondent. The appellant moved for a new trial. Two of the grounds of the motion were as follows: 1. “ That the verdict was obtained by resorting to chance.” 2. “That the verdict is excessive.” The trial court orde...
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The opinion of the court was delivered by This was an action by the plaintiff in error, Frederick A. Brigham, as a judgment creditor of the Commonwealth Loan and Trust Company, against the defendant in error, Albert F. Nathan, as a stockholder in said company, to recover on the latter’s statutory liability to pay the debts of his company. *244The action was instituted under section 32 of chapter 2...
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Error from Rooks district court. Dismissed. ...
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The opinion of the court was delivered by This was an action brought against the Atchison, Topeka & Santa Fe Railway Company by Caroline Beal, widow of Daniel Beal, to recover *251damages for negligently causing her husband’s death. The deceased was a workman employed with others to clean the defendant’s stock-cars. The place where the death occurred was in the company’s yards at Argentine, this ...
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The opinion of the court was delivered by The city of Enterprise owns all of its water-works system or plant except the well from which the water-supply is drawn ; that is owned by one Guilford Smith. The city, acting under chapter 82, Laws of 1897 (Gen. Stat. 1899, §§ 653-665; Gen. Stat. 1897, ch. 39,. §§ 9-27), instituted an action to condemn the land of Smith, upon which the well was situated. ...
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Error from Wyandotte court of common pleas. Reversed. ...
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The opinion of the court was delivered by This is another controversy which has grown out of the contest of the Grimes will and of the settlement of the Grimes estate. The history of the litigation has been stated in the reports of prior adjudications. (Hudson v. Hughan, 56 Kan. 152, 42 Pac. *259701; Hudson v. Barratt, ante, p. 137, 61 Pac. 737.) When the will was adjudged to be invalid by the dis...
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The opinion of the court was delivered by This was a suit brought by the state of Kansas, on the relation of the county attorney of Clay county, against the board of trustees of the asylums for the insane, to enjoin the latter from accepting, on behalf of the state of Kansas, deeds conveying to the state certain lands near the city of Parsons, for the purpose of erecting an asylum for the insane t...
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Upon a trial before a jury in the district court the plaintiff in error was found guilty of the crime of manslaughter, the verdict being returned upon the 26th day of May, 1899. Of the date of June 2d following, the transcript shows the following entry: “Comes now the above-named defendant in person and accompanied by his attorney, and also comes the State of Wyoming by the county and prosecuting ...
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This action was originally brought in the district court of Albany County by the defendant in error, Warren Bliler, against plaintiff in error, Nathaniel K. Boswell, as administrator of the estate of Bertha A. Hance, deceased, upon an account for services rendered; and judgment was rendered in said court in favor of said defendant in error for the sum of $445.75, on the 9th day of March, A. D. 189...
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This is an agreed case submitted to the district court pursuant to the provisions of Section 3662, Revised Statutes. Upon the hearing the questions involved being *283deemed important and difficult, were reserved for tbe decision of this court by authority of the statute permitting the district court to reserve for the decision of the supreme court an important or difficult question arising in an ...
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The opinion of the court was delivered by This is an action in ejectment commenced on December 7, 1897,. by Edward Jeakins against N. F. Frazier, to recover the possession of an undivided one-fourteenth interest in 480 acres of land situate in Butler county, and to recover certain rents and profits. The answer, besides a general denial and an admission that at the commencement of the action the de...
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Opinion of the court by This case was submitted to the trial court on a stipulation signed by J. C. Strang, the attorney general, on behalf of the Territory, and by Messrs Dale Bierer, the attorneys for the defendant. The record presents the sole question as to whether or not the plaintiff in error is bound to account to the Territory for interest in the sum of $5,603.00 which he received from t...
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1. It is not sought by the appeal to disturb the findings of the court below in so far as they pertain to the accounting, and the amount found and decreed to be due the plaintiff from the defendant in pursuance thereof; but it is urged that the lower court erred— firs.t, in appointing the receiver; second, in decreeing the sale of the partnership property and a division of the proceeds ; and, thir...
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delivered the opinion. J. W. Henry, while acting as Sheriff of Yamhill County, Oregon, brought this action to recover the salary of his deputy, and, a demurrer to his complaint having been sustained, judgment was rendered against him, dismissing the action, from which he appeals. The controversy involves a construction of the amendatory act of February 25, 1895 (Laws, 1895, p. 77), regulating the ...
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delivered the opinion. This is a proceeding against a garnishee, wherein the appellant, the Blake-McFall Co., was cited to appear and answer certain allegations and interrogatories touching its indebtedness to the defendant, George F. Robertson. Among others, it is alleged “that the plaintiff is informed and believes that the said garnishee, at the time the said execution was levied as aforesaid, ...
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after stating the facts, delivered the opinion of the court. 1. During the trial, one Leonard C. Jones testified in behalf of defendant, and was cross-examined by plaintiff’s attorney. Thereafter, and before the close of the trial, plaintiff applied to the court for leave to recall the *570witness for further cross-examination. An objection was made, during the consideration of which counsel state...
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after stating the facts, delivered the opinion of the court. It is contended by defendant’s counsel that the evidence introduced at the trial is insufficient to establish the corporate existence of the Jarvis-Conklin Mortgage Trust Co. or of the plaintiff, and that the court erred in finding otherwise, while plaintiff’s counsel insists that the transcript fails to show that Jones has any substanti...
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Plaintiff sued to recover from defendant the value of certain wheat deposited under the terms of the following written contract: "Stockton, Cal., July 31, 1897. "Received of Mrs. L.C. Pope, in the Eureka warehouse, situated on Levee street, Stockton, the following described merchandise, which we agree to deliver (damage by the elements excepted) upon the surrender of this certificate and payment o...
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This is an appeal from an order granting a motion for a new trial. The action was one involving a claim for commissions based upon a sale of real estate. The claim is primarily evidenced by a contract in writing. Under this writing plaintiff was to receive his commissions when certain notes taken by the vendor of the real estate from the vendee were paid. In addition to the aforesaid written contr...
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This action was brought in Yolo county to quiet title to a twenty-seven acre tract of land located near the Sacramento river. In the complaint the land was described as a certain part of the northwest quarter of section 19 in township 11 north, range 3 east, Mt. Diablo meridian. On the trial defendant (appellant here) objected to the taking of any testimony because it appeared from the complaint t...
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[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 29 [EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 30 Action to specifically enforce an agreement to compromise and settle an action pending in the superior court of ...
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The plaintiff brought this action upon a judgment rendered in its favor against the defendant in the circuit court of the state of Alabama. Judgment was rendered in favor of the defendant, and the plaintiff has appealed. *Page 155 The defendant is a corporation organized under the laws of this state, with its office and principal place of business at San Francisco. In the action brought against d...
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This action was brought to foreclose a street assessment lien under an assessment issued by the superintendent of streets of the city of Oakland. Defendants recovered judgment, and this appeal is by plaintiff from the judgment and order denying a new trial. It appears that the contract was let under the street law, and an ordinance duly adopted by the city, which provided, among other things, that...
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Plaintiff brings the action to recover the possession of certain grain of which he alleges ownership and right of possession. The cause was tried by the court without a jury and defendants had judgment, from which and from the order denying a new trial plaintiff appeals. It was alleged in the separate answers of the defendants that defendant Ewell Windsor and Stirling P. Windsor, his brother, dece...
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This is an appeal by plaintiff from a judgment for defendant following an order sustaining a demurrer to the complaint. The complaint sets forth that on the nineteenth day of August the defendant filed a complaint against and caused the arrest of one Newman on a charge of larceny of defendant's goods, and about the same time accused Woodham, the husband of plaintiff, with complicity in said crime ...
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This is an action brought to foreclose 3! chattel mortgage. Defendant appeals from the judgment and order denying her motion for a new trial. A few days prior to the commencement of the action defendant served on plaintiff an offer in writing to pay him one hundred and ninety-four dollars and interest, in full payment and discharge of the obligation. Ho further steps were taken by defendant i...
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Appeal from an order refusing to appoint a receiver. The plaintiff recovered judgment to foreclose a mortgage executed to it by the defendant G. W. Christie, mortgaging to the plaintiff a certain tract of land, specifically described, “together with the tenements,” etc., “and the rents, issues and profits thereof,” and under the foreclosure sale purchased the mortgaged premises. The decree was ren...
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Action to quiet title to block 340 in the city of Escondido, San Diego county. Plaintiff had judgment, from which and from the order denying motion for new trial this appeal is prosecuted. There are numerous defendants, but the appeal is by the regents of the Escondido Seminary and by the University of Southern California only. Plaintiff and defendants (regents) claim title through a common source...
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[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 161 Defendant was convicted of the crime of rape, alleged to have been committed on one Maude Yates, a female under the age of sixteen years, and he was sentenced by the court to five years' imprisonment in the state prison. From the judgment and from an orde...
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Defendant was convicted of the crime of arson, under an indictment presented by the grand jury of San Joaquin county, and was sentenced to ten years' imprisonment at San Quentin. He appeals from the judgment and from the order denying his motion for new trial. There are no errors calling for any statement of the evidence as to defendant's guilt or innocence. 1. Defendant's principal reliance for r...
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Action to recover twelve hundred dollars damages. The case was tried before a jury and a verdict returned for plaintiff in the sum of four hundred dollars. This appeal is from the judgment and an order denying defendants* motion for a new trial. The facts concerning which there is . no controversy are substantially as follows: The defendants are and were at all times named in the pleadings husb...
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This action was brought by the county of Sutter to condemn certain lands for a public highway, after statutory proceedings had before the board of supervisors. The cause was tried without a jury, judgment passed for plaintiff and from the order denying them a new trial defendants appeal. Most of the propositions which they present in support of their appeal may be briefly disposed of. 1. The demur...
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— The respondent moves this Court to strike from the files the transcript, and to dismiss the appeals herein, upon the following grounds: (1) Because the transcript does not contain a copy of the order denying the appellant’s motion for a new trial; (2) because the transcript fails to disclose that any bill of exceptions or statement on motion for a new trial have been settled or certified; (3) be...
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delivered the opinion of the Court. Application for writ of mandate. The material facts upon which the application is based are stated as follows: That the relator, during the year 1898, was, and still is, a resedent of precinct No. 7 of election district No. 1 of the county of Broadwater, included in Townsend, an incorporated *377town, which at the state election of 1898 contained less than 1,000...
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This is an appeal from an order made by the district court of the fifth judicial district ordering an election to determine whether the county seat of Fremont county should be removed from St. Anthony to the town of Rexburg. The respondent moves to dismiss the appeal upon two grounds,, to wit: 1. Because an appeal will not lie from such order; 2. Because the undertaking upon appeal herein was exec...
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This is an appeal from a decision of the district court of Fremont county — from an order or judgment submitting to the legal voters of said county the question whether the county seat of said county should be removed from St. Anthony to Rexburg. It appears from the record: That a petition for the removal of said county seat, containing two thousand three hundred and forty-two signatures, was duly...
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Opinion of the court by This is an original proceeding in this court, to compel the defendants, who are the individual members of the board of county commissioners of Oklahoma county, to revoke a liquor license issued to James Marrinan, pending an appeal to the district court, by remonstrants from the order of said board granting said license. It appears from the recitals in the alternative writ t...
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after stating the foregoing facts, delivered the opinion of the court: Appellant complains of and alleges as error the admission of testimony as to the statements made by Sawyer at *336the time he examined the books of the bank containing the account under consideration, wherein he expressed himself as being satisfied with it on the grounds: First, that Sawyer at the time was Burraston’s attorney,...
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The opinion of the court was delivered by This action was brought by Samuel Blinn, as administrator of the estate of his deceased wife, Annette D. Blinn, who was killed at a highway crossing on the line of the St. Louis & San Francisco railroad, near the village of New Albany, Wilson county, on January 27, 1897. She was walking alone towards the north on the public highway which extended north fr...
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The opinion of the court was delivered by This action was brought by the plain- ^ tiff in error upon a fire-insurance policy for $500 issued *459by the defendant in error. In the course of the trial it developed that after the loss by fire of the insured property, and prior to the commencement of this action, the policy sued upon and another for $1500, issued by the Queen Insurance Company upon t...
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The opinion of the court was delivered by On the 14th day of October, 1891, G. Frohwerk began this action, seeking to recover from the city of Kansas City, Kan., $3000 damages, alleged to have been sustained by him in consequence of the grading, paving, curbing and guttering of the street adjacent to his property in such a manner .as to change the natural flow of the surface-water in the vicinity ...
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The opinion of'the court was delivered by This was. an.action by Duffy against the city of Leavenworth, the Rapid Transit Railway Company and the Kansas City, Wyandotte & Northwestern Railway Company to recover damage to property in the city of Leavenworth occasioned by a change in the grade of a street upon which the property *125abutted. The change in the grade was occasioned by the constructio...
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The opinion of the court was delivered by The plaintiff in error recovered a judgment in the district court of Wyandotte county against O. E. Witham for $7424.40 and costs, and for the foreclosure of a mortgage securing the same. More than one year thereafter the defendant in error recovered a personal judgment against said Witham. Afterward the plaintiff in error caused an order of sale to be iss...
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The opinion of the court was delivered by On April 1, 1896, the defendant in error John Schneider began an action in the district court of Leavenworth county to quiet his title to a piece of land in that county as against the plaintiffs in error, who were defendants therein. The admitted facts of the case are substantially as follows : On August 22, 1881, the land in controversy was deeded to Joh...
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Tbe opinion of the court was delivered by This controversy arose between Daniel Shirk, the plaintiff in error, who is the pledgee of thirty shares of corporate stock, and the law firm of Frank M. Sheridan and John C. Sheridan (since deceased), in the district court of Miami county, in an action brought by C. A. Dorsey and Frank M. Gay-lord against the Paola Variety Store Company, a corporation, A...
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The opinion of the court was delivered by On September 24, 1898, the Easterly Harvesting Machine Company caused an execution to issue out of the district court of Shawnee county upon a judgment in its favor against J. E. Pratt, and the defendant in error, as .sheriff of said county, by his under-sheriff, W. H. Williams, levied the same upon certain live stock and corn growing in the field. A forth...
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The opinion of the court was delivered by This action was originally begun by A. Mecartney, one of the defendants in error, against the-plaintiffs in error, to recover the possession of certain real property. The action was founded upon an irregular and void tax deed, and upon the failure to establish title in the land a lien for the taxes paid was sought to be established; this matter was taken u...
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The opinion of the court was delivered by While there are six allegations of error set up in the brief of the defendants in error on cross-petition, it was admitted in the oral argument that the only real question involved is the one previously *141considered by us in Barker v. Mecartney, ante, p. 180, 62 Pac. 439: “Is tbe holder of a tax deed entitled to recover all the taxes paid by him, whether...
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The opinion of the court was delivered by This is a proceeding for a peremptory writ of prohibition, on the return of an alternative writ, to prohibit the Honorable William Hickman Moore, judge of the superior court of the state of Washington for King-county, from taking any further proceedings in a certain cause pending in said superior court, before him as judge-thereof, wherein one O. G-. Austi...
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The opinion of the court was delivered hy A complaint was filed by Clallam county against respondent Hall on August 15, 1898, under §§ 6680 and 6692, Bal. Code, to require said respondent to enter into a recognizance to keep the peace. The examination was had on September 20, 1898, and the court ordered said respondent to enter into a recognizance for $250 to keep the peace, and further ordered he...
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The opinion of the court was delivered by Respondent seeks to set aside a re-assessment levied by the city of Tacoma against its property for the improvement of South Eighth street between Tacoma avenue and G street. In 1892 the city caused South Eighth street, from Tacoma avenue to G street, to be improved by grading the same to the established grade andl *110by building and laying sidewalks on b...
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This was an action brought by the prosecuting attorney of Spokane county, in the name of Spokane county, against the county commissioners of said eounty, to restrain them from bonding certain alleged *103warrant indebtedness against tbe county. Upon the presentation of tbe case in tbis court, on June 13, 1900, last, it was suggested by tbe court that tbe prosecuting attorney bad no authority to br...
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The opinion of the court was delivered by In compliance with a petition presented by property owners, the city of Seattle caused'Washington street to be graded and sidewalks to be constructed thereon, from Twelfth to Sixteenth street, in said city. The work was done by contractors, and the cost of the improvement was assessed against the property abutting upon that portion of the street so improv...
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The opinion of the court was delivered by On the 1st of December, 1899, the commissioner of public lands duly executed to petitioner (relator) a lease of certain described tide lands in King county, for the period of thirty years. A clause was inserted in the lease to the effect that the tide lands described therein should not be offered for sale except upon the application of the lessee, and that...
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The opinion of the court was delivered by The appellant is duly incorporated under the laws of the state of Washington, relative to the incorporation of boom companies (§§ 4378-4394, Bal. Code), for the purpose of improving a part of the Washougal river lying in Skamania and Clarke counties, and driving saw logs and other timber products thereon. For the purposes of this action, while it is questi...
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*72Tlie opinion of the court was delivered by The city of New Whatcom, by the terms of the general law under which it is incorporated (Bal. Code, § 938, subd. 10) has power: “To license, for purposes of regulation and revenue, all and every kind of business, including the sale of intoxicating liquors, authorized by law, and transacted and carried on in such city, and all shows, exhibitions and la...
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The opinion of the court was delivered by Action to set aside and vacate the satisfaction of a judgment. In May, 1897, upon a general and special verdict of a jury, a judgment was entered in favor of the respondent and against appellant in an action in replevin for the return to respondent of certain personal property, or its value, in the sum of $500, together with damages in the sum of $150. On ...
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This action was brought by the state against Ada county and John W. Eagleson, treasurer of said county, to recover judgment for the sum of $796.47, and interest thereon; that being the balance of state tax due from said county for the year 1897. The complaint alleges, among other things, that the state board of equalization met pursuant to law on-the fourth day of August, 1897, to determine the am...
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Mrs. Bryan, the guardian of the persons and estates of her five minor children, under an order of the court mortgaged their interest in certain real estate, amounting to an undivided five-twentieths, to secure a loan of $9,500. Mrs. Bryan individually and her five adult children also mortgaged their undivided interest in the same real estate, amounting to fifteen-twentieths thereof, to secure *548...
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A demurrer to the second amended complaint was sustained, and, plaintiff failing to further amend, defendant had judgment from which the plaintiff appeals. The said complaint contained two counts. In the first is set forth, in substance, that in a claim and delivery suit commenced by plaintiffs against defendant judgment had gone in defendant's favor for the return to him of twenty-five thousand t...
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This action was brought by the owner of the building on a building contractor's bond. Plaintiff had judgment by default against the builders, who were the principals on said bond. Defendant De Turk, the surety, answered, and after a trial without a jury obtained a judgment, from which and from an order denying a new trial plaintiff appeals. The bond sued on provided that the principals therein sho...
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[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 260 The verdict and judgment were for plaintiff for the value of certain promissory notes averred to have been deposited by plaintiff with defendant as collateral security for a promissory note made to plaintiff by one Beckman and another person. Defendant ap...
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[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 247 Appeals from a judgment on verdict in favor of plaintiff, for the sum of six thousand five hundred dollars and costs, and from an order denying a new trial. The points relied upon for reversal are: The statute of limitations; errors of law occurring in th...
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Action to quiet title to a right of way. Plaintiff recovered judgment and appeals therefrom, claiming that the judgment is erroneous in several respects, and that he is entitled to more relief than is therein given. The court had the right to consider the acts of the parties in adopting the description contained in the deed of the right of way from defendant to plaintiff, and the building of fence...
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This appeal is prosecuted from an order granting to defendants a change of place of trial to Humboldt county. The motion was made upon the ground that the defendant resided in that county. Plaintiff replied to the motion by affidavits to the effect that the contract sued upon was made in the city and county of San Francisco. Notwithstanding the residence of defendant may have been located in Humbo...
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[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 202 Judgment went in the court below for plaintiffs, and defendant appeals from the judgment and from an order denying his motion for a new trial. The action was to quiet title to certain described land. The answer merely denies the ownership of plaintiffs an...
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Plaintiff's testator resided in Minnesota up to the time of his death, and in that state made his will January 31, 1889. He died February 3, 1899. The will was duly probated in Minnesota and afterward was proven, as provided by law in reference to foreign wills, in the superior court of San Diego county, and admitted to probate, and letters of administration with the will annexed were issued to pl...
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This action was brought by plaintiff to obtain a judgment against defendant for damages received by plaintiff in falling or being thrown off of one of defendant's electric-cars while said car was in motion. At the close of the evidence the court directed the jury to return a verdict for the defendant, and upon the verdict thus returned judgment was entered. This appeal is from the judgment and fro...
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This is an original petition here for a writ of mandamus to compel the superior court of the county of Stanislaus to take certain action prayed for in the petition. An alternative writ issued, and afterward a demurrer to the petition was interposed and the case was submitted on the demurrer. The petition sets forth that on March 10, 1900, petitioner presented to said superior court, respondent her...
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Action of claim and delivery. The plaintiff brought this action to recover from the defendant the possession of certain personal property or its value. Upon the commencement of the action, under his direction, the property was taken by the sheriff from the possession of the defendant, and within five days thereafter and before its delivery to the plaintiff, the sheriff, upon the execution to him b...
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This action is for a partition of two lots in the city of Pasadena. The defendant appeals from an interlocutory judgment in plaintiff's favor and from an order denying a new trial. The appeal from the judgment was taken more than sixty days after the same was entered, and must therefore be disregarded. (Code Civ. Proc., sec. 939, subd. 3.) The appeal from the order denying a new trial is left for ...
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This litigation involves the respective rights of the parties to the use of the waters of a certain creek known as Willow Ranch creek. Plaintiff in his complaint alleged a diversion of these waters by defendants without right, *157 and sought a permanent injunction, with damages. Defendants admitted a diversion of twenty-five inches of the waters of the creek, and claimed the right to so divert...
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The city of Los Angeles took certain proceedings for the issuance of municipal bonds for public improvements, under the act of March 19, 1889 (Stats, 1889, p. 399), and adopted an ordinance submitting to the voters of the city the question whether the bonds should be issued. The city council, having declared that a majority of two-thirds of the voters had voted in favor of their issuance, passed a...
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Appeal from judgment for plaintiff against defendant Duchein, and from order denying motion for new trial. The plaintiff is a corporation organized under the laws of this state. The defendant, the Garibalid Grove, was, on and before June 22, 1893, a subordinate unincorporated association, organized under charter from the plaintiff; but on that date, by a vote of the Grand Grove, at the annual sess...
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delivered the opinion. On December 10, 1895, Thomas Coats died in Douglas County, and his son, the appellant, was appointed administrator of his estate. At the time of his death he was seised and possessed of real and personal property, which was inventoried by the administrator and appraised at $814.88,' and was indebted about $2,400, including the sum of $954, and some interest, due petitioner’s...
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delivered the opinion. This is a suit by J. B. Parker to enjoin Nicholas Furlong and James Farrier from trespassing upon a mining claim. The complaint, after alleging plaintiff’s ownership and possession of a certain placer mining claim in Douglas County, avers that on December 17,1897, the defendants, without claim or right, ‘ ‘enteredand trespassed upon said claim, and commenced digging thereon,...
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after stating the facts, delivered the opinion of the court. 1. It is contended that the court erred in sustaining the demurrer to O’Shea’s second defense. A counterclaim is one arising out of a cause of action existing in favor of the defendant and against the plaintiff, between whom a several judgment might be had, and, as far as applicable herein, must be connected with the subject of the suit:...
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delivered the opinion of the Court. These are original proceedings in this Court. In No. 1,612 it appears that a certificate of the nomination of the relator as the candidate of the Democratic party for the office of Judge of the District Court of the Third judicial district of the state of Montana was duly filed with the secretary of state, and that a certificate of the nomination of one Welling ...
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delivered the opinion of the court. Respondents move the court to strike from the record on appeal the statement of the case on motion for new trial, and to dismiss the appeal in said action, for the following reasons: (1) Because the said statement was not served on respondents’ attorneys, or settled, allowed, or filed, within the time prescribed by the Code of Civil Procedure, the.time for servi...
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By the Court, Appellant was convicted of murder of the second degree. He appeals from the judgment, and relies upon the following specifications of error: (1) Insufficiency of the evidence to support the verdict; (2) error of law in not requiring the prosecution to use as part of its case in chief the record of the proceedings taken at the preliminary examination; (3) error in giving fifteen of...
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delivered the opinion of the Court. *429Application for writ of mandate to compel respondent to hear and determine certain proceedings for contempt growing out of an alleged violation by one James B. Kempton of a certain injunction theretofore issued against said Kempton in a certain action in said district court of said county wherein the said Kempton was defendant and Thomas F. Oakes, Henry C. P...
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The opinion of the court was delivered by This is an action to compel the specific performance of an alleged contract for the sale of land, and to compel a conveyance of the same. In 1884, the respondent became the owner, by warranty deed, of lots 10 and 11, block 910, in Tacoma, and the title thereto has at all times remained in his name. One of the defenses pleaded to the action is that the pro...
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[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 209 Action upon a street assessment. The common council of the city of Los Angeles passed an ordinance for the improvement of Main street in that city, between Ninth and Thirty-seventh streets. Plans and specifications, together with an estimate of the cost o...
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Action for breach of warranty of quality of certain salt sold by defendant to plaintiff. The cause was tried by a jury, and plaintiff had the verdict. The appeal was taken within sixty days from the rendition of judgment, and a reversal is asked upon the ground that the judgment is not supported by the evidence: Code Civ. Proc., sec. 939, subd. 1. The transcript contains a statement on motion for ...
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This is a proceeding by certiorari to review an order convicting the petitioner of a contempt of court. The return to the writ consists exclusively of a certified copy of the order adjudicating the petitioner guilty, with the recitals upon which it is based. It appears therefrom that the petitioner, as attorney for the San Diego Water Company in an action pending in the superior court, presented a...
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The question involved in this appeal is the ownership of a strip of land in San Francisco, on the northerly line of Washington street, commencing one hundred and twenty-five feet west of Taylor, and having a frontage of two and a half feet upon Washington street, with a depth of sixty feet, being a portion of fifty-vara lot No. 817. Judgment was rendered in favor of the defendants, and the plainti...
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The court being of the opinion that a freeholders’ charter can be changed only by amendments submitted by the legislative authority of the city, as provided in section 8 of article 11 of the constitution, the judgment appealed from is reversed. A fuller statement of the grounds of this decision will be filed hereafter....
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The court being of the opinion that a freeholders’ charter can be changed only by amendments submitted by the legislative authority of the city, as provided in section 8 of article 11 of the constitution, the judgment appealed from is reversed. A fuller statement of the grounds of this decision will be filed hereafter....
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Judgment was rendered in favor of the plaintiff and against the appellant for his proportionate share as a stockholder of the indebtedness of a corporation, and he has appealed therefrom. The court found, in accordance with certain allegations in the complaint, that on the first day of July, 1897, the corporation became indebted to the plaintiff's assignor in a certain sum of money, being a balanc...
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One Kelting, doing business in Lake county, drew two drafts on defendants, living in San Francisco, who constituted a partnership dealing in livestock. These drafts were cashed by the Bank of Ukiah, upon presentation by Kelting, but defendants repudiated any liability upon them, and this action is brought by the bank to recover from defendants the amount of those drafts. The question is, Was Kelt...
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The plaintiff, a materialman, is seeking a lien upon the property of defendant Nancy A. Weir. The material was furnished to defendant Fellows, a contractor, who erected a building for said Weir. The contract between the owner and contractor was a valid contract, and the contract price was nineteen hundred dollars. Defendant Weir made the two last payments demanded by the terms of the contract bef...
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This appeal is before us from a judgment dismissing an action for lack of prosecution. The action is one for damages to real property, occasioned by reason of an overflowed sewer, and was brought in the year 1890. Issue was joined promptly, but the cause did not come to trial, and in the year 1898, upon motion of the city, the action was dismissed for laches in the prosecution. Two years after th...
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This is an action to recover damages for personal injuries. Plaintiff was in defendants’ store, and while engaged in examining goods and wares fell down an open stairway leading to the basement and broke her leg. The only point made by defendants—and that is made in a most perfunctory way—is that the evidence does not show any negligence upon the part of the defendants in maintaining the open stai...
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This is an action to recover damages for personal injuries. Plaintiff was in defendants’ store, and while engaged in examining goods and wares fell down an open stairway leading to the basement and broke her leg. The only point made by defendants—and that is made in a most perfunctory way—is that the evidence does not show any negligence upon the part of the defendants in maintaining the open stai...
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The present action is brought for the recovery of damages sustained by the plaintiff by reason of injuries received by his wife while she was being conveyed as a passenger upon one of the trains of the defendant. It is alleged in the complaint that by reason of the negligence of the *Page 286 defendant the injuries received by plaintiff's wife were permanent, and rendered her wholly unable to per...
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This is an action brought to restrain the defendant, as secretary of state, from certifying to the county clerks of the several counties of the state the proposed senate constitutional amendment No. 22, adopted at the regular session of the legislature, March 18, 1899. A general demurrer was filed to the complaint, which was sustained by the court below, and, the plaintiff declining to amend, judg...
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In December, 1894, the requisite number of creditors, among whom was the appellant, the bank of Woodland, filed a petition in the superior court of Yolo county to have the firm of Levy Schwab, and the individual members thereof, W. Levy and S. Schwab, declared insolvent. Such proceedings were thereafter had upon the said petition that said firm and said individual members thereof were, on the twe...
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after stating the facts, delivered the opinion of the court. The motion to vacate the decree was properly overruled. It is based upon the fact that the allegations and interrogatories were neither served within the time fixed by the court in the order for the examination of the garnishee, nor upon him personally; but his subsequent appearance by answer was a ;waiver of any irregularity in that reg...
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On Motion to Dismiss Appeal. delivered the opinion. 1. Where there are several respondents, and some of them except to the sufficiency of the sureties on the undertaking for an appeal, the appeal is not to be deemed abandoned as to the other respondents, although the transcript is not filed within thirty days from the expiration of the time allowed them to except to the sureties. It will be a suf...
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after making the foregoing statement, delivered the opinion. The constitution of the Grand Lodge of the Ancient Order of United Workmen, so far as deemed applicable herein, provides, in general terms, that the beneficiary fund shall remain in the treasuries of the subordinate lodges until called for, and be composed of assessments made from timé to time upon the members, one of which is paid by ea...
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after stating the facts, delivered the opinion. 1. The evidence shows that on February 5, 1897, the defendant was the owner in fee of the real property described in the complaint, but having agreed with L. Rostein, plaintiff’s husband, to exchange said premises for the NE. *4 of the NW. J4 °f section 25 in township ioN.,of rang'e 10 E., in Eldorado County, California, which the latter represented ...
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delivered the opinion. This is a suit to subject certain real property to the payment of a judgment. The facts are that on January 14,1885, the defendant R. L. Minard, for a valuable consideration, executed to Samuel Marks and Asher Marks, partners as S. Marks & Co., his promissory note, payable one day after that date. Samuel Marks having subsequently died, Asher Marks was appointed administrator...
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The opinion of the court was delivered by The petitioner is restrained of his liberty by the marshal of the city of Topeka, under a warrant issued by the police judge upon complaint charging him in three counts with the violation of ordinance No. 2061, of the city of Topeka. The first count charged him with the unlawful selling of intoxicating liquors; the second, the unlawful keeping of a club-ro...
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The opinion of the court was delivered by This action was originally begun by the defendant in error Clifton W. Carpenter to recover the possession of a half lot in the city of Atchison, claiming title thereto by reason of a certain tax deed. The tax deed was found to be void, and Carpenter demanded that the taxes paid under the tax certificate and deed in his name be declared a lien on said lot. ...
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The opinion of the court was delivered by This action was commenced by Emma L. Tinsley in the district court of Rawlins county, on February 9, 1900, against the defendants, Pitts and Pitts, for the recovery of the amount alleged to be due upon a promissory note in the sum of $600, with interest, and for the foreclosure of a real-estate mortgage. The original petition was unsatisfactory to the defe...
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*300The opinion of the court'was delivered by John Pope, one of the defendants in error, brought suit against the other parties to this proceeding in the district court of Rawlins county to quiet his title to a tract of land. The suit was under the provisions of the statute in relation to such cases. The defendant Carrie E. Havens, plaintiff in error in this proceeding, answered, setting up title...
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The opinion of the court was delivered by The only question we deem it necessary to decide in this case is: In an action for the foreclosure of a mortgage on real estate, where the plaintiff dies after the decree of foreclosure and before the issuance of an 'order of sale, and no revivor is had, but afterward an order of sale is issued, the property sold, sale confirmed, and deed made to the purch...
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The opinion of the court was delivered by The plaintiffs in error began this action in the district court against the defendant in error to recover $1450, which amount was secured by a chattel mortgage, said mortgage being by its terms subject to prior mortgages in favor of W. H. Davis, the Bank of Topeka, John R. Mulvane, P. V. Sproat, W. R. Hazen, and Ed. Sproat, who, together with Swofford Bro...
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The opinion of the court was delivered by This action was begun by the defendant in error to recover the possession of certain *315lots in the city of Leavenworth. He recovered judgment therefor, and the defendants prosecute erroi therefrom. •There are two questions presented by the assignments of error, but we find it unnecessary to notice the second assignment. The plaintiff’s evidence of title ...
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The opinion of the court was delivered by This proceeding was instituted by Harry L. Heaton filing in the probate court of Decatur county his petition to purchase certain school lands, viz. : The northwest quarter of section 10, township 2 south, of range 28 west, in Decatur county. The lands had been properly appraised. Heaton claimed a right to purchase the premises as a settler. At the time set...
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The opinion of the court was delivered by The plaintiff in error sued the defendant in error to recover upon a judgment rendered iu the supreme court April 6,1895, in the case of The State of Kansas against R. O. Kindig. The judgment was that the county of Decatur pay the costs of the supreme court, taxed at $140.65. The judgment was rendered upon an appeal by Kindig. The plaintiff, Lockard, claim...
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The opinion of the court was delivered by This action was brought on the 31st day of October, 1898, by Conrad Staus against the Huffs in the district court of Norton county, for the recovery of $1500, with interest, alleged to be due upon three several promissory notes, and for the further sum of $68.74, on account of taxes paid by the mortgagee upon the premises, and for the foreclosure of a real...
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*325The opinion of the court was delivered by The plaintiff in error was the owner of certain lands in Ellis county, on which the defendant in error S. T. Yost had a tax deed, dated September 2, 1897, but it had never been recorded and was lost or destroyed. On April 19, 1899, the plaintiff in error brought an action to recover the possession of said land, and at the trial the court found the tax ...
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This action was brought for the foreclosure of a mortgage upon certain mining property, executed to the plaintiff's assignor by the president and secretary of the defendant. The defendant denied its execution of the note and mortgage, and upon this issue the court found in favor of the plaintiff and rendered judgment accordingly. The defendant moved for a new trial upon the ground that the decisio...
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Appeal from a judgment in favor of the plaintiff and from an order denying defendant's motion for new trial. The suit was brought to quiet the plaintiff's title to certain lands, consisting of a tract called the "Lindstrom tract" and an undivided interest in another tract. The defendant is an incompetent, and appears by guardian. The complaint is in the usual form. The case set up in the answer an...
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Appeal by defendant from a judgment in plaintiffs favor and from an order denying defendant’s motion for a new trial. The action was brought to recover two thousand four hundred dollars claimed by plaintiff to he due from defendant *340 "for services rendered by plaintiff to defendant within two years last past, at the personal instance and request of defendant.” The points urged for a revers...
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[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 318 Appeal from judgment for defendant, and from order denying plaintiffs' motion for a new trial. The appeal from the judgment was taken more than six months after the entry of judgment, and must be dismissed. The cause was before this court on a former appe...
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This was an action for damages for the conversion of certain barley and wheat situated at the time of the alleged conversion on the plaintiffs’ ranch .in Glenn county. In addition to the denials of 'the allegations of the complaint defendants "Whyler Brothers set up specially that prior to July, 1896, they were lessees of the land, on which the grain was grown, from defendant Speck, as agent of t...
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The appeal is from a judgment in favor of the plaintiff and from an order denying defendant's motion for a new trial. The action was to recover damages for the refusal on the part of the defendant to furnish water to the plaintiff for the irrigation season of 1896 on tender by him of the regular rates therefor. 1. Defendant does not deny the refusal as alleged, but seeks to justify its action on t...
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Action to quiet title to a water right. Findings and judgment were for the defendants, and plaintiffs appeal from the judgment and from an order denying a new trial, and also from an order after judgment relating to costs. A former judgment in this case in favor of the defendants was reversed upon plaintiffs' appeal, and a new trial granted. The second trial was had upon the same pleadings, and th...
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The judgment was for defendants, and plaintiff appeals from an order denying his motion for a new trial. This action was commenced April 8, 1895, to recover twenty thousand dollars on a contract alleged to have been entered into between plaintiff and John S. Doe on or about the first day of November, 1887, for a sale of the Invincible mine. The defendants pleaded subdivision 1 of section 339 of th...
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[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 324 [EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 325 Action to recover four hundred and seventy dollars alleged to have been paid to defendants by plaintiff for th...
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after stating the case,-delivered the opinion of the Court. The question presented in this case is: What is the legal effect of the action of the state convention, wheieby ic gave authority to the Kennedy delegates to take charge of and control the affairs of the party in Deer Lodge county, to call a convention, and to nominate candidates for such offices as it was within the powers of that conven...
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delivered the opinion of the Court. Mandamus. By this proceeding the plaintiffs seek a peremptory writ commanding the clerk of the county of Ravalli to cause to be printed on the official ballot, in the column headed ‘ ‘Democratic, ’ ’ and under the names of the nominees of that party for state offices, the names of the plaintiffs and two other persons, as the nominees of the Democratic party *415...
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The facts sufficiently appear in the opinion. The defendant was convicted of the crime of grand larceny in the Fifth Judicial District Court, in and for Humboldt county, and was sentenced to the state prison for the term of seven years. He appeals from the judgment, and the order of the court denying his motion for a new trial. The respondent moves for a dismissal of the appeal on several grounds,...
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Ejectment. The land described in the complaint is a part of the Rancho de Las Putas, which was granted by the Mexican government, and for which a patent was issued by the United States in 1863 to Nicholasa Higuera de Berryesa and Anastasia Higuera de Berryesa. In 1853 these patentees, with their respective husbands, conveyed to I.N. Thorn and John Treat the entire rancho, "reserving and saving fro...
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This action was brought to recover money due for rent under the terms of a lease. A verdict was returned and a judgment was entered in plaintiff's favor for five hundred dollars and costs on the twenty-first day of January, 1897. A cost-bill was filed by plaintiff on the twenty-fifth day of the same month, claiming costs in an aggregate amount of four hundred and eleven dollars and thirty-nine cen...
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Action for divorce. On July 25, 1895, the trial court entered its final decree dissolving the bonds of matrimony theretofore existing between the parties. No mention was made in the decree of counsel fees or alimony. Subsequently, to wit, on October 1, 1895, a motion was served on defendant that plaintiff would, on October 4, 1895, move the court for an order awarding plaintiff counsel fees and al...
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This action was brought to recover of defendants a balance of eight hundred and ten dollars alleged to be due for goods, wares, and merchandise sold and delivered by plaintiff to defendants at their instance and request for the agreed price of eight hundred and fifty dollars. The case was tried before the court, findings filed, and judgment entered in favor of plaintiff for the sum of four hund...
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Action to recover possession of real property demised by plaintiff to defendant, the léase having expired, and defendant continuing in possession. The cause was tried by the court without a jury, and judgment given in favor'of defendant, from which, and from the order denying his motion for a new trial, plaintiff appeals. The complaint sets forth a written lease for one year from November 5, 1896,...
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Appeal by Caroline Weissich, a legatee under the alleged olographic will of Jacob (sometimes known as James) Behrens, deceased, from an order of the superior court of Santa Clara county denying the probate of the will. Grounds of opposition to the probate were filed by E.E. Cothran, Esq., appointed by the court as attorney for absent heirs, on behalf of Henry and Augusta Behrens, claiming to be br...
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This action was originally brought in a justice court. The complaint alleged “that the said defendant is indebted to said estate in the sum of $568.75 for toll, rent of stable, and blacksmith-shop, and boarding men from July 1, 1898, to January 1, 1899, at the agreed price of $87.50 per month; that no part of said sum has been paid, except the sum of $368.25, leaving a balance due and owing from t...
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There was offered for probate before the superior court of Glenn county an instrument asserted to be the last will and testament of Elvineigh M. Kendrick, deceased, executed upon April 16, 1894. Certain brothers, sisters, nephews, and nieces of the deceased contested the probate upon various grounds, and a trial was had before a jury, to which the court submitted two special issues: 1. Was the dec...
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This action was brought to recover of defendants the sum of seventeen hundred and sixty-two dollars, balance due for sale of fruit by plaintiff to one Herbert during the year 1896. The complaint alleges that defendants willfully and fraudulently represented to plaintiff that they were backing Herbert in buying fruit, and that any contract that he might make with Herbert would be performed on his p...
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The appellant, who is the father of Fannie Marie Campbell, an infant of two years of age, applied to the lower court by petition to be appointed guardian of her person and estate, the last consisting of personal property of merely nominal value. The application was contested by the respondents, John and Mary Wright, the maternal grandparents of the minor, who made a counter application for the app...
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Foreclosure. The court found on sufficient evidence that defendant and one Jacob Steigleman, for many years prior to April 25, 1876, and thenceforward were, and now are, husband and wife; that on July 9, 1892, defendant made and delivered her promissory note to her husband, and to secure the same executed at the same time a mortgage on certain four separate tracts of land; that long prior thereto,...
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By reference to the notice of appeal herein we find that on the twenty-second day of October, 1897, the defendant appealed from a judgment entered in plaintiffs favor on the *428 twenty-fifth day of March, 1897. At th'e same time defendant also appealed from an order denying him a new trial, which latter appeal was on motion of plaintiff heretofore dismissed by this court. The action is broug...
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An action was commenced against the plaintiffs on behalf of the Abbey Land and Improvement Company et al. to enjoin them from doing certain acts, and an order for an injunction pendente lite having been made upon condition that they execute an undertaking to the plaintiffs herein in the sum of five hundred dollars, the *Page 397 defendants herein executed such undertaking, and a writ of injunctio...
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This appeal is from a final judgment for respondent and from an order denying plaintiffs' motion for a new trial. The facts, as admitted, and as shown by the findings, are substantially as follows: *Page 403 On the twelfth day of April, 1888, the plaintiffs, being the owners of certain real estate in Oakland, Alameda county, made a written contract with one Williams, by which they agreed to sell ...
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Action that plaintiff be adjudged entitled to the free use of a certain road; that the gate erected across the same by defendant be adjudged an obstruction, and that he be compelled to remove the same and be restrained from placing or maintaining across said road a gate or other obstruction; also for damages. Certain questions were submitted to a jury, the answers to which the court adopted as fin...
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after stating the facts, delivered the opinion. 1. It is first insisted that the court erred in overruling the demurrer to the complaint because it is defective, in that the trust deed upon which it is based does not show the amount due or owing to the creditors, nor does it provide when and where the property shall be sold. The objection goes to the validity of the deed, but, as the action is bas...
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after stating the facts, delivered the opinion of the court. The evidence shows that the plaintiff and the defendant Kester were married in 1876, and that about four or five months prior to the execution of the notes sued on she disobeyed his commands by attending church, whereupon he said to her, as she testifies, that he would cut her throat and take her heart out. The difficulty thus occasioned...
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after making the foregoing statement, delivered the opinion of the court. 1. There was a contention that the reply constituted a departure from the complaint, in that it set up a different title or right to the locus in quo from that contained in the complaint, and therefore that it was incompetent to permit the plaintiff, under the allegations of the reply, to establish the decedent’s right to be...
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after stating the facts, delivered the opinion of the court. The question for decision is one of priority between the claim of the plaintiff banks and that of the defendants Watson and Leonard. The right of the plaintiff corporation to a prior lien for the amount due on the original loan to Loewenberg is not disputed by any of the parties. The instrument of January 5, under which the plaintiff ban...
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after stating the facts, delivered the opinion of the court. 1. It is insisted that the answer of Sliter and others, denominated a “plea in abatement,” was in fact a plea to the merits, and that the court erred in allowing the defendants to further plead after the issues made thereby were determined against them. The pleading seems to have been treated by the court and parties until after the tria...
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The opinion of the court was delivered by This was an action in the nature of a creditor’s bill to subject real estate to the payment of a judgment. The case was tried to the court without a jury. At the conclusion of the evidence on behalf of the plaintiff a demurrer to it for failure to prove a cause of action was made and sustained. From the order sustaining the demurrer error has been prosecut...
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The opinion of the court was delivered by The controversy in this case is over the right to certain funds, the rent of real estate, collected by a receiver. Both the district court and the court of appeals held against the claim of right to the rent made by the plaintiff in error. The last-named court based its judgment upon propositions of law which, for the sake of convenience to us in our consi...
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Error from Dickinson district court. Dismissed. ...
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The opinion of the court was delivered by The appellant was convicted of grand larceny; the offense consisting of cattle stealing. He introduced testimony showing his good reputation for honesty, and the state, in rebuttal, attempted to prove his bad reputation in that respect. One John Dacy, on behalf of the prosecution, testified, over the objection of the defendant, as follows : “Ques. Do you ...
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The opinion of the court was delivered by An act of the legislature entitled “An act creating one city court in Atchison City township,”' etc., was approved February %7, 1899, and took effect upon its publication in the official state paper on March 8 following. It is sufficient in this case to set out in full three sections of the law, which read : ‘ ‘ Sec. 4. The governor shall appoint and commi...
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The opinion of the court was delivered by C. C. Corum and W. O. Robinson were charged with selling goods in the city of King-man without a license, in violation of a city ordinance, and upon a trial in the police court were found guilty. Failing to pay the fine imposed, they were taken into custody, from which they seek to be relieved by the writ of habeas corpus. The petitioners attack the juris...
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The opinion of the court was delivered by This was a foreclosure proceeding, brought by Samuel J. Sharpless against John T. and Florence M. Showalter. Three railroad companies were also made parties defendant. Sharpless asked for judgment on a promissory note for $3000, executed by the Showalters, and to foreclose a mortgage given by them on the west half of block 2 in Myers’s addition to the cit...
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The opinion of the court was delivered by This was an action for the specific performance of ah agreement to sell and convey real estate. In the plaintiff’s petition it was shown that on November 23, 1898, Mary Condley executed a writing in which, for a consideration of $100, paid by M. J. Callahan and A. N. Chadsey, she agreed to sell and convey to them, at any time within sixty days, upon their...
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The opinion of the court was delivered by The first and important question to be considered is whether or not, under the facts as they have been made to appear, this court will enter into an investigation of the controverted matters presented, involving the regularity of the proceedings had in the convention at Olathe, and decide which candidate was nominated according to the usages of the party ...
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The opinion of the court was delivered by Does chapter 358 of the Laws of 1895, set out in the statement, have the curative effect of validating the unwarranted acts of the board of county *836commissioners of Wallace county in issuing warrants in evidence of public indebtedness for bounties offered for gopher scalps, make them valid obligations, and fix the amount of the same as a charge upon th...
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*858The opinion of the court was delivered by On June 1, 1885, Annie Alexander and her husband, Matthew Alexander, executed and delivered to Mary R. Bryant a promissory note for $2000, payable three years after date, with interest at eight per cent, per annum, and at the same time they executed a mortgage on real estate belonging to the wife as security for the payment of the debt. Interest was p...
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Error from Washington district court. Reversed. ...
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*152The opinion of the court was delivered by This was an action by the defendant in error against the insurance company to recover upon a life policy. The company answered that, by the conditions of the policy, it was authorized to pay the money due on the policy to either the executor, administrator, husband or wife, or any relative by blood, or lawful beneficiary of the insured, at its election...
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The petitioner, Allie Hewes, a boy, pleaded guilty to a charge of manslaughter and was sentenced to the state reformatory. The proceedings were had in Kingman county, in. the twenty-fourth judicial district, .before Hon. Francis C. Price, judge of the thirty-first judicial district, sitting as judge pro tern. Hon. P. B. Gillett, judge of the twenty-fourth district, was disqualified to sit in a num...
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The defendant was informed against upon a charge of assault with intent to commit murder. He was convicted of an “assault with a deadly weapon likely to produce great bodily injury.” From the judgment, as well as from the order denying defendant’s motion for a new trial, this appeal is taken. It appears from the record that the defendant and one Rice were or had been engaged in litigation in regar...
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The respondent moves to dismiss this appeal on the ground that this court has no jurisdiction of the appeal. This contention is based upon the idea that this is a. criminal action; that the state is the proper party plaintiff;, that no appeal is granted by the statute to the state from an order or judgment in favor of the defendant dismissing the-action, and therefore no appeal lies: To sustain th...
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The court is called upon to decide which of the two rival conventions of the Democratic party of Shoshone county is entitled to have the auditor file the ticket nominated by it, and to have such ticket placed upon the official ballot. The case was submitted on a lengthy stipulation of the facts. The stipulation was made subject to objections on the ground of relevancy, competency, or materiality, ...
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The plaintiff in this proceeding prays for a peremptory writ of mandamus compelling the defendant, as district judge, to render an order entering a final judgment in an action commenced by said plaintiff in the district court of the third judicial district in and for Canyon county on the twelfth day of November, 1899, against the defendants therein, Maurice G. Stiles et al., the facts being briefl...
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— This is an application for a writ of mandate commanding the secretary of state to certify the name of the plaintiff to the clerks of the counties of Deer Lodge and Granite, which counties comprise the Third judicial district of the state of Montana. Omitting formal allegations, the petition states the following facts, which are admitted by the attorney general: At a judicial convention composed ...
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delivered the opinion of the Court. Certiorari. In the case of Allen against Gibbs, pending lief ore a justice of the peace in the county of Deer Lodge, on the 24th day of March, 1900, judgment was rendered in favor *452of the plaintiff for $25 and costs; on the 4th day of April Gibbs served and filed a notice of appeal to the district court, and on the 20th day of the same month he filed an under...
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— Motion to tax costs under Section 1867 of the Code of Civil Procedure. Upon the dismissal of the proceeding under this title, (ante p. 238, 61 Pac. 882), counsel for defendants filed with the clerk of this Court a memorandum of the costs claimed to have been necessarily incurred therein, *426to be included in the judgment entered in this Court. This memoradum consists of three separate items, vi...
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The plaintiff in error, Charles K. Newhall, claiming to he the surviving partner of a partnership alleged to have existed between himself and one George Smith until the. latter’s decease, and as such to have been in the possession of partnership assets consisting of a herd of cattle, some horses, and saddles, brought an action in the court below against the defendant in error, J. N. Porter, to rec...
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On the twenty-third day of September, 1898, Lewis Wolfley brought an action in the district court of Maricopa County against W. T. and C. D. Brown, copartners doing business under the firm name and style of Brown Brothers, to recover damages against the said defendants for an alleged trespass charged to have been committed by them in wrongfully and forcibly entering upon the premises of the plaint...
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The parties to this action on the twentieth day of March, 1895, entered into an agreement in writing with each other, wherein Mary Bowen, appellee, agreed to convey lots 11 and 13 in block 2 of the city of Prescott to the appellant for the sum of four thousand dollars. For that purpose appellee made and executed a deed therefor to Henry Goldwater, the appellant, and delivered the same in escrow *2...
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The appellant, Joseph Tamborino, was tried in the district court of Yavapai County for the crime of "assault with intent to commit murder,” alleged to have been committed on the eighth day of May, 1899, upon the person of one Ed. A. Tovrea, and was found guilty of "assault with a deadly weapon. ’ ’ The evidence for the prosecution tended to prove: That on the night of the 8th of May, 1899, the pro...
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On and prior to the twelfth day of May, 1892, John Lawler and Ed. W. Wells were the owners and in possession of the mines and mining claims located in the Eureka mining district in Yavapai County, Arizona, known as “Hillside,” “Happy Jack,” “Contact No. 1,” Contact No. 2,” and “Camp,” and locations known as “Midnight,” “Morning Glory,” “Water,” “Hidden Treasure,” “Sucker,” “Side,” “Purple Rose,” “...
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The facts sufficiently appear in the opinion. *Page 263 This appeal is taken from a judgment made and entered by the district court on the 16th day of June, 1898, and from an order denying appellant's motion for a new trial made on the 2d day of February, 1899. The appellants served and filed their notice of appeal on the 7th day of February, 1899. On the 3d day of July, 1899 – the same being the...
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The opinion of the court was delivered by This action was brought by the plaintiff in error against the defendant in error to recover the possession of certain personal property in which *518the plaintiff claimed a special ownership under a chattel mortgage executed by the Arkansas City Manufacturing Company and delivered to the plaintiff, to secure an indebtedness evidenced by a promissory note f...
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The opinion of the court was delivered by This action was instituted by Frank Harden against M. M. Scott, as constable of the city of Winfield, in Cowley county, to recover the possession of certain cattle in which the plaintiff claimed a special ownership under a chattel mortgage made by Joseph Langlois and his wife, and which property the constable held and was about to advertise and sell, “by v...
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*242The opinion of the court was delivered by This was an action in ejectment, brought by John Ogee for the recovery of the possession of certain real property alleged to be wrongfully withheld by Elizabeth Hamilton, Laura A. James, and George Wendel. The petition was in the usual form prescribed by the statute. The defendants, for answer, filed a general denial. The first trial was had in Septemb...
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The opinion of the court was delivered by The question involved is, Does the petition state a cause of action in favor of Brown, as receiver, against Sims? "VVe are of the opinion that it does not. Counsel argue a number of questions, and among others the constitutionality of section 55 of chapter 47, Laws of 1897 (Gen. Stat. 1897, ch. 18, § 51; Gen. Stat. 1899, § 461). On the part of the plaintif...
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The opinion of the court was delivered by This action was brought in the district court by the defendants in error William Stevens and Susie E. Stevens, husband and wife, against the plaintiff in error, Jennie O. Stevens, to set aside a deed to certain real estate and to partition the same. Bernard Pollman, the other defendant in error, held a mortgage upon the property in dispute, but he makes no...
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*281The opinion of the court was delivered by This is an action brought to test the right of a police judge to punish a contempt of process issued by him. The petitioner was subpoenaed by the police judge of Lincoln Center to appear and testify before him in a matter pending in which one Ed. M. Harris was charged with the violation of a city ordinance. He refused to obey, and an attachment was is...
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The opinion of the court was delivered by From the record, it appears that the view the district judge took of the case was that, inasmuch as it appeared from the evidence that the building itself cost $800, and that all the money furnished at that particular time was put in the building, therefore there was a lawful part of the contract to be enforced. The evidence sustained the allegations of th...
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The opinion of the court was delivered by H. N. Boyd, the defendant in error, brought his action against R. T. Stanfield, treasurer, and F. N. Brown, sheriff, of Republic county, plaintiffs in error, to enjoin them from issuing and levying a warrant for the collection of certain alleged illegal and,unlawful taxes. The plaintiff in his petition alleged, in substance, that Stanfield was treasurer an...
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The opinion of the court was delivered by It is first contended that the court erred in refusing to permit the plaintiff to propound to a witness for the defendant and require the witness to answer the question whether he, the witness, believed in the existence of a God. It is said in the argument that the object of this question was to determine the competency of the witness and the weight to be...
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The opinion of the court was delivered by There are seven allegations of error argued in the brief of appellant, the first of which is that the verdict was not sustained by the evidence. There was competent evidence submitted to the jury to warrant a conviction, and in such cases the verdict cannot be disturbed. The second complaint is that the information was not refiled after being re verified. ...
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The opinion of the court was delivered by This action was commenced on September 8, 1898, by Bridget Murphy, the defendant in error, against the Lancashire Insurance Company, of Manchester, England, upon an insurance policy. On September 21, 1897, the plaintiff in error issued to the defendant in error, Bridget Murphy, and one Mary Ann Murphy, its policy of insurance, insuring against loss by fire...
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*276The opinion of the court was delivered by Instruction a, as requested by the defendant, was given in substance, with a modification to the effect that the plaintiff could not recover upon such conditional contract unless the defendant had waived the condition as to the time of sale. It is argued by counsel that this was error, because there was no such issue presented. It was due from the defe...
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The opinion of the court was delivered by The record discloses that the probate court assumed jurisdiction not only to try the title to the money but to adjudicate a contract made by the deceased with the petitioner in his lifetime, and to hold the contract invalid for the want of mental capacity on the part of the deceased to enter therein. The petitioner objected to the court entering upon an in...
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This is an action upon a policy of accident insurance. By said policy the defendant promised that it would pay the plaintiff the sum of two thousand dollars in the event of the death of her husband resulting from "bodily injuries sustained through external, violent, and accidental means." The husband died and the question upon this appeal is, Did he die from "bodily injuries sustained through exte...
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The opinion of the court was delivered by This action was instituted in the district court to recover damages alleged to have been sustained by the defendant in error by reason of the plaintiff in error having unlawfully caused his stock of goods to be tied up by a certain attachment and two garnishments. Upon a trial to a jury a verdict was found 'for the defendant in error, upon which a *257jud...
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The case is an application for a writ of mandamus to the auditor of Tulare county, requiring him to issue to the plaintiff a warrant for the sum of eleven hundred and thirty-three and one-third dollars, the balance due on account of salary as supervisor and road commissioner for the period commencing with the first Monday in June, 1897, and ending with the first Monday in November, 1898. The plain...
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Action to recover the value of certain sheep alleged to have been converted by defendant. The cause was tried by the court sitting without a jury and defendant had judgment, from which plaintiffs appeal on the judgment-roll. Plaintiffs claim under a chattel mortgage executed by Mariano Laurenz Co., to plaintiffs' testate to secure the *Page 476 payment of a certain promissory note made by the mo...
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These cases were submitted by stipulation, along with Ellis v. Jefferds, ante, p. 478, on briefs on file. The only difference between the cases is that the plaintiffs here are 'deputy officers, viz., Clark and De Witt deputy district attorneys, McPhail deputy county superintendent, and Bliss deputy county clerk. We do not, however, regard •this difference as material. Under section 173 of the a...
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Action to foreclose a street assessment lien upon defendants' land in San Francisco, for the work of grading the center roadway of Army street, from Pennsylvania *Page 468 avenue to Kentucky street, to a width of twenty-three feet. Judgment was entered for plaintiff, motion for new trial denied, and this appeal is from the judgment and order. An order was made by the trial judge substituting the ...
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This action was brought to foreclose a mortgage made by defendant Purdy to plaintiff. Findings were filed, upon which judgment was entered for plaintiff. This appeal is from the judgment. *Page 457 The findings are unchallenged, and show that on January 26, 1898, the defendant Purdy executed his promissory note to plaintiff for three thousand dollars with interest, and at the same time executed a...
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This action was brought by the board of state harbor commissioners, in the name of the people of the state of California, to recover possession of a strip of land thirty feet wide lying along the southerly side of Channel street, in the city and county of San Francisco, and constituting a portion of said street, the same being located west of the east line of Fifth street. Defendants filed a demur...
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Application to set aside the judgment of disbarment. The petitioner was accused before the superior court of the county of Sacramento of the violation of his oath and duty as an attorney and counselor at law, and, after a hearing thereon that court entered its judgment August 15, 1895, permanently precluding him from practicing as such attorney or counselor in all the courts of this state. Upon an...
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The defendant was charged in the information with the crime of forgery in having, on the thirty-first day of January, 1899, willfully and knowingly uttered and passed as true and genuine a certain false, forged, and counterfeit power of attorney, with intent to cheat and defraud one Levy. He was convicted and judgment entered accordingly. This appeal is from the judgment and from an order denying ...
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This action is upon a building contract entered into between plaintiff's assignor, J. Grover, and defendant, whereby Grover contracted to build for defendant a pumping plant for a stipulated price. Plaintiff avers that the contract was fully performed by Grover. Defendant denies that the plant was constructed according to the contract, or at all. Judgment was rendered for plaintiff, and defendant ...
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This is an action to recover damages for personal injuries. Defendant appeals from the judgment and order denying a motion for a new trial. Defendant was engaged in the lumber business, and in connection therewith operated a railroad. Plaintiff was a passenger upon this railroad, traveling from the town of Scotia to Alton. The railroad was a single track road, and between these two points, while t...
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The suit was brought for the sum of two thousand dollars and interest, alleged to be due on a promissory note, of date November 30, 1895, made by the defendant to the Moore Smith Lumber Company, and assigned by the latter to Frances J.P. Moore, and by her to the plaintiff. There was a verdict and judgment for the plaintiff, and the defendant appeals. No claim is made by the respondent to any righ...
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This is an appeal from an order denying plaintiff's motion for a new trial. The action is to quiet title to the premises in question situated in San Mateo County. In addition to the usual allegations in a complaint in such action, *Page 483 the plaintiff avers, among other things, that on the first day of April, 1872, B.S. Green, since deceased, then the husband of plaintiff was the owner and in ...
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delivered the opinion. 1. This is an appeal from the judgment of the circuit court upon a writ of review to the municipal court of the City of Portland, whereby a judgment of acquittal in *6favor of the defendant upon a charge of violating Ordinance No. 7133 of said city was reversed and set aside, and the cause remanded, with directions to the municipal court to adjudge that he be fined or impris...
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after stating the facts, delivered the opinion of the court. It is not alleged in the complaint that the proposed wharf will be an obstruction to, or in any way interfere with, the navigation of the river, or with any of the powers and duties of the Port of Portland; but such is the necessary inference, prima facie, at least, from the resolutions forbidding its construction, the fact that it will ...
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The opinion of the court was delivered by The appellant was convicted of assault with intent to kill. The information has the following caption : “The State of Kansas, plaintiff, v. Eiden .Everett, defendant. State of Kansas, county of Geary. Information.” It recites that “the county attorney gives the court to understand and be informed that in the county of Geary, state of Kansas, on or about th...
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after stating the facts, delivered the opinion of the court. 1. It is contended by plaintiffs’ counsel that the court erred in refusing to grant a voluntary nonsuit requested by their clients; while defendant’s counsel insist that, -the motion therefor not having specified the ground upon which it was predicated, no- error was committed in this respect. Considering these questions in inverse order...
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The opinion of the court was delivered by Dunbar, C. J. This was an action praying for specific performance, viz., to compel the appellants to deed to respondent a certain tract of land. A demurrer was interposed to the complaint for the reason that it did not state facts sufficient to constitute a cause of action. The demurrer was overruled, and, the appellants electing to stand upon the same, ju...
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The opinion of the court was delivered by This action was brought to recover a balance due for services alleged to have been rendered by plaintiff, as the attorney of the defendant, upon its retainer and request, between the 1st day of May, 1895, and the 1st day of June, 1898. The complaint alleges, in substance, among other things, that the services rendered and moneys paid out and expended by pl...
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The opinion of the court was delivered by This is an action of ejectment brought by the plaintiff, Griffin, as administrator de bonis non of the estate of. Sophia D. Bacon, deceased, to recover the possession of -an undivided two-thirds interest in lot 1 in block 1105, in the city of Tacoma, Pierce county, Washington, from the defendants, Warburton and Sand-berg. The trial court instructed a verd...
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The opinion of the court was delivered by This is a proceeding in the nature of certiorari, denominated by our statute a “writ of review.” The facts leading up to the issuance of this are as follows: In the late county republican convention for King county, held on the 2d and 3d days of August, 1900, there were four candidates for nomination for the office of justice of the peace in the city of Se...
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The opinion of the court was delivered by The respondent brought this action in the court below against H. C. Gibbons, Bruce White, P. Burns and G. W. Walker, to recover an undivided one-*257fourth interest in a certain mining claim, named the “First Thought,” situated in Stevens county, and which was located by the defendants, Gibbons and Walker, on the 14th day of August, 1898. It is alleged in...
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after stating the case, delivered the opinion of the Court. The record does not disclose upon which one of the grounds the motion was sustained. It is therefore incumbent upon us to examine them all, and, if any one of them justifies such action, the judgment and order must be affirmed; for, though several other errors are assigned in plaintiff’s brief, the questions presented by the motion are th...
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delivered the opinion of the court. 1. Elling and Morris, who were impleaded as co-defendants with the Pony Gold-Mining Company and Hauser, have appealed from a judgment against them and an order denying their motion for a new trial. In July last the respondent moved that the appeals be dismissed. Upon the denial of the motion, leave was granted to renew it upon grounds other than those contained ...
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after stating the facts, delivered the opinion of the court. Although the two appeals in this case were argued and submitted separately, they, will be considered as one, for the purposes of the opinion of the court. 1. The motion to make the complaint more definite and certain was properly overruled. The description of the premises in the complaint follows the mortgage, and, if the portion attempt...
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after stating the facts, delivered the opinion of the court. ' The question to be considered is whether a complaint alleging a passive acquiescence by defendant’s predecessors, when they knew that plaintiff was expending large sums of money in making valuable improvements upon his land while relying upon the faith of the implied license to maintain said ditch, which, if revocable, would render suc...
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after stating the facts, delivered the opinion of the court. 1. It is insisted by defendant’s counsel that the court erred in admitting, over their objection and exception, testimony tending to prove the alleged parol contract, before any evidence was offered of the part performance thereof relied upon by the plaintiff to take the case out of the statute of frauds. The point contended for is maint...
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delivered the opinion. This is a suit to foreclose a mortgage purporting to have been executed by Preston C. Smith and Susie W. Smith, his wife. The husband having died, the widow was appointed administratrix of his estate. Both the note and mortgage were executed October i, 1892, by the husband on behalf of the wife, by virtue of a power of attorney executed September 13,1892, while she was in Ma...
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(after stating the facts). There are two principal questions presented in this case: First, whether the ordinance is void because in violation of the interstate commerce clause of the Constitution of the United States; and, second, whether it is void as in violation of the provision of Section 28, Article 1, of our State constitution that “all taxation shall be equal and uniform.” The principles w...
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Opinion of the court by This action was commenced in the district court of Logan county by Henry H. Bockfinger against John Foster, W. S. Robertson and A. C. Schnell, as the trustees of townsite board No. 6 for Oklahoma, to declare a resulting trust. The property involved is 160 acres of land located in the city of Guthrie, being the S.W. 1/4 of sec. 8, twp. 16 N., R. 2 W. I. M., or the south 1/2 ...
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STATEMENT OF THE CASE. It appears from the record and the briefs of counsel, that on the second day of February, 1895, Don A. Gillett made, executed and delivered to John Romig his promissory note for $700.00, payable two years after date, bearing interest at the rate of twelve per cent per annum, payable *Page 187 semi-annually in advance. This note was secured by a real estate mor...
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The defendant appeals from a judgment in plaintiff's favor and from an order denying a new trial. The action is to recover damages for an unlawful ejectment of plaintiff by defendant from one of its passenger trains at Pasadena. The case was tried before the court without a jury, and plaintiff was awarded damages in the amount of five hundred and seventy-five dollars. The defendant admitted that i...
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Opinion of the court by This was an action brought in the district court of Kingfisher county July 5, 1894, by E. W. Hill as plaintiff, against H. N. Horner, B. J. Conley and J. C. Caldwell as defendants, involving a certain partnership contract between said parties which the plaintiff alleges was entered into between all of said parties as a partnership, under the firm name and style of Conley ...
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STATEMENT OF THE CASE This is an action in injunction begun by May Dykes plaintiff, against Benjamin L. Kirtley, defendant, in the district court of Noble county, for the purpose of obtaining possession of a part of a homestead. It appears from the record that prior to the time of beginning of the action the parties had been contesting for the tract of land; that a decision had been...
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STATEMENT OF THE CASE. On the 19th of April, 1897, William Butler and Maria Butler, plaintiffs in this action in the court below, filed their amended petition against Robert Higgins and S. A. *Page 346 Higgins, defendants therein. It appears from the allegations in the petition that on the 8th day of May, 1889, Robert Higgins, one of the plaintiffs in error, was the occupant of the ...
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Opinion of the court by Collins and Wallace filed their petition in the district court of Pawnee county praying that certain taxes assessed and levied against their cattle in the Osage Indian reservation be enjoined for the reason that the same was illegal and void. To this petition the defendants demurred. The court sustained the demurrer and the plaintiffs having elected to stand on their petiti...
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Opinion of the court by Ed. C. Lasater and G. A. Noble, partners doing business as Lasater Noble, commenced this action in the district court of Pawnee county to enjoin the collection of certain taxes levied against their cattle, which were located in the Osage Indian reservation, for the year 1898, claiming, first, that all of the cattle were listed for taxation for the same year in the state *...
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Opinion of the court by Meyer Halff and Solomon Halff were partners doing business under the firm name of M. Halff Bro. This firm brought into the Osage Indian reservation during the months of March and April, 1898, 3,800 head of cattle and 16 horses for the purpose of grazing the same in transit for market. The officers of Pawnee county, (said reservation being attached to Pawnee county at that...
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Opinion of the court by Plaintiff seeks to enjoin the collection of certain taxes levied on cattle brought into the Osage Indian reservation between March 1, and September 1, of the year 1898. A demurrer was sustained to plaintiff's petition, from which order he appeals to this court. 1. The appellant's first contention is that the cattle were assessed in the state of Texas for the year 1898, prio...
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delivered the opinion of the Court. This is an appeal from an order granting an injunction pendente lite. The plaintiff is the owner of the Little Mina lode claim, situate in the county of Silver Bow. This claim lies in a northwesterly and southeasterly direction. Immediately south of the easterly half of the claim lies the Nipper lode *486claim, which at the time this action was begun, was occupi...
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delivered the opinion of the Court. Action to foreclose a mechanic’s lien. The trial was by the court without a jury, and resulted in a judgment of nonsuit. Plaintiff' has appealed from the judgment, and an order overruling its motion for a new trial. The appeal cannot be considered, for the reason that appellant’s brief does not meet the requirements of Subdivision 3, of Rule X of this Court (22 ...
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delivered the opinion of the court. The plaintiff brought this action to recover a judgment against the defendant for damages, and for an injunction perpetually restraining him from preventing the one-half of the water flowing through a certain ditch from passing into the ditch of plaintiff. A trial was had by the court sitting with a jury. From the judgment, and from an order denying his motion f...
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delivered the opinion of the Court. By the writ of certiorari the plaintiffs seek the judgment of this Court annulling orders of the district court of the county of Silver Bow dissolving a restraining order, dismissing an order to show cause why an injunction pendente lite should not issue, and refusing to issue such injunction, and dismissing the action without prejudice. These orders were made o...
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This action was brought to recover the value of personal property alleged to have been converted by defendants. The court filed findings upon which judgment was entered for plaintiff. This appeal is from the judgment upon the judgment-roll. The only point urged on this appeal is that the court failed to find upon the pleas of the statute of limitations set up in defendants' answers. It is alleged ...
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Defendant has been convicted of the crime of bigamy and appeals to this court. It is first insisted that the challenge to the panel of jurors should have been allowed. The challenge was based upon the claim that the sheriff who summoned the jurors was biased. This officer was placed upon the stand and examined at length as to his state of mind, and we will not here detail his evidence. It may be c...
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This action was brought for the purpose of having the court decree that the plaintiff is the owner of an undivided one-ninth interest in certain lands described in the complaint, and that defendant Mary Rooney holds the title thereto in trust for plaintiff. Findings were fined and judgment entered as prayed for in the complaint. This appeal is by Mary Rooney from the judgment on the judgment-roll ...
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Plaintiffs sue as executors of the will of James G. Fair, deceased. The defendant is president of the board of trustees of Reclamation District No. 108 – lying partly in the county of Yolo and partly in the county of Colusa. Said district is a public corporation created for public purposes, the main object being the reclamation of swamp lands. (Pol. Code, sec. 3446 et seq.; People v. Reclamation D...
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Appeal from an interlocutory judgment in favor of the plaintiff for the partition of a tract of eighty acres of land referred to in the testimony and the briefs as the Jackson place. The case, briefly stated, is as follows: It is in effect found by the court that the plaintiff is the equitable owner of an undivided half of the Jackson place, and of certain water stock appurtenant thereto, under a ...
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This appeal is from a judgment in favor of plaintiffs and from an order denying defendant a new trial. The action was brought to recover damages caused by the excavation of First street in front of plaintiff's lot. Plaintiffs were the owners of a lot in the city of Los Angeles, bounded on the east. by Boylston street, on the west by an alley, and on the south by First street, said lot being a rect...
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This is an action to obtain the cancellation of a decree of foreclosure of a mortgage, alleged to have been had through the mistake of plaintiff, and to obtain a decree foreclosing another mortgage given to secure the same indebtedness. Plaintiff had judgment, and the defendant Dow appeals from the judgment upon the judgment-roll. In December, 1890, defendant Loveland executed a mortgage to one L....
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The facts of the case are substantially the same as those involved in Ashton v. Heydenfeldt, 124 Cal. 14. That was a suit brought for the recovery of certain shares of stock in the Zeila Mining Company, the property of the estate of Solomon Heydenfeldt, plaintiffs' testator, which had been distributed, under a decree afterward reversed, to the defendant Elizabeth, and by her assigned – it was alle...
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The opinion of the court was delivered by In November, 1896, one Homer J. Sbinn, as executor of the estate of Edwin K. Sturgiss, deceased, began an action in the superior court of the county of Spokane to reform and foreclose a mortgage executed by Gorham P. Dart and wife to Edwin K. Sturgiss upon certain real property in that county, making defendants in the foreclosure action the respondent Joh...
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The opinion of tke court was delivered by The issues tried in the court below are set forth in the respondent’s brief, which, for convenience, *136we accept as a substantial statement of the same, and were as follows: The plaintiffs, Dora May Dormitzer and William L. Tull, filed their' complaint in the action on the--day of April, 1897, making the respondent, the German Savings & Loan Society, to...
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The appellant was convicted of battery upon his own confession, and sentenced to imprisonment in the county *391jail for a period of thirty days and to pay a fine of $100, and in default of payment thereof that he be confined and imprisoned in the county jail one day for each dollar of fine so adjudged, until the fine be paid. After serving out the thirty days’ term of imprisonment, the appellant ...
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After stating the facts, delivered the opinion of the court. The appellant contends, first, that the location of the Amazon No. 2 was void because made by aliens. That under Sec. 2319 Rev. Statutes of the United States, a location could only be made by a citizen of the United States, or those who had declared their intention to become such. Second, that the Amazon No. 2 was not originally located...
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delivered the opinion. This is an action brought by Lewis & Mills against H. P. McNary and others on a redelivery bond to recover the difference in the market value of the property in dispute at the time of its delivery to> the defendants under the bond and its return to the plaintiffs at the termination of the litigation, *117and also for divers and sundry items of damages the plaintiffs assert t...
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after stating the facts, delivered the opinion of the court. The question, presented for consideration is whether the notice of garnishment which stated that the debt due from the defendant to the plaintiff herein was attached bjr virtue of a writ of attachment, instead of stating that it was levied on by virtue of a writ of execution, was sufficient to render the defendant personally liable to re...
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The opinion of the court was delivered by In March, 1896, the defendants in error, T. W. Simpson, C. W. Linn, and J. W. Jennings, went from Agricola, Kan., to Montrose, Colo., to purchase cattle. They carried two letters of credit, one from the Bank of Waverly, Kansas, for $10,000, and one from the Bank of Williamsburg, Kansas, for $8000, entitling them to draw checks upon the said banks for the ...
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The opinion of the court was delivered by This action was brought by the defendant in error in the district court of Wilson county to recover damages for the death of her husband, Charles Keller, which was alleged to have been caused by the negligence of the employees of the receivers of the St. Louis & San Francisco Railway Company. A trial was had to a jury, which returned a verdict for the pla...
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The plaintiff, who is the appellant, as administratrix of the estate of Charles Haun, deceased, instituted this suit to recover from the defendant corporation damages alleged to have been caused by the defendant in negligently and carelessly causing the death of said Charles Haun. Among the negligent acts alleged in the complaint are the following in substance: That the defendant, in violation of ...
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The facts disclosed by the record show, in several respects, a violation of professional ethics on the part of the respondents. It is stated in their brief that “Evans & Rogers did not employ Alfred H. Nelson, the latter employed the former on behalf of the widow and minor children of his deceased brother.” ■ If it be conceded that the widow for herself and minor children, had the right to authori...
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after stating the case, delivered the opinion of the Court. It was held by this Court in Whitbeck v. Montana Central Railway Co., 21 Mont. 102, 52 Pac. 1098, that an appealable order, regularly made, cannot be reviewed or set aside by the court making it, except in the cases provided by statute. In that case judgment had been rendered upon the pleadings in defendants’ favor. Subsequently, and befo...
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delivered tbe opinion of the Court. This is an appeal by the defendants from an order refusing to modify an interlocutory injunction. The plaintiff moves a dismissal of the appeal upon the ground that it is an attempted appeal from an order refusing to modify an appealable order. The facts pertinent to the pending motion may be thus *508epitomized: The plaintiff owns the Bordeaux placer, a nonpate...
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This is an appeal from an order, made after judgment, striking out the plaintiffs bill of costs. It appears from the record that the decree was entered July 5, 1899, and that the decree and findings were not indorsed "Filed-” until August 22, 1899. Notice of the court’s decision was given and served. Afterward, August 25, 1899, the plaintiff filed his memorandum of costs, but this was more than fi...
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This action was brought to recover $1,072.28, stated in two causes of action. It appears from the record that the respondent (who was defendant in the court below) entered into a contract with the Northern Pacific Railway Company, whereby he agreed to furnish said company thirty-five thousand ties at the rate of twenty-four cents for first-class and seventeen cents for second-class ties, and there...
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Respondent moves to dismiss this appeal upon several different grounds. One of the grounds upon which the motion is based is that the appeal was perfected before the judgment was entered in the lower court. This ground is con*303fessed by the appellant, for which reason this appeal must be dismissed. The appellant suggests, however, that “this appeal was taken for the purpose of having the present...
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Action to foreclose a lien for street work. Plaintiff had judgment, from which and from an order denying him a new trial defendant Patterson appeals. At the trial of the case plaintiff offered in evidence the certificate of the city engineer, which reads as follows: "No. 1722. San Francisco, March 31, 1896. "I hereby certify that a record in this office of certificate No. 597...
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Unlawful detainer. Plaintiff had judgment, from which defendant Annie Perry appeals on the judgment-roll. Plaintiff's complaint proceeds upon the theory that defendants occupy the premises in question – a flat, No. 126 1/2 Noe street, San Francisco – as tenants at will of plaintiff. Defendants pleaded occupancy of the premises under an oral contract with plaintiff by which defendants were to live ...
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The plaintiff seeks by this action the foreclosure of a mortgage upon certain real estate executed by Rose Ann Watkins. The appellants herein were made parties defendant to the action, under the allegation that they claimed to have some interest in the land described in the mortgage, and that their interests, if any they have, are subject to the lien of the mortgage. The mortgagor suffered default...
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Appeal from the judgment and from an order denying a new trial. The action was for the recovery of the sum of four thousand dollars, the complaint containing two counts – one for money deposited, the other upon an account stated. The contention on the part of the defendant is that the four thousand dollars alleged to have been deposited by Archibald Nicholson in his lifetime with the defendant ban...
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Beatty, C.J., dissented from the order denying a hearing in Bank, and filed the following opinion on the 24th of December, 1900: I dissent from the order denying a rehearing because in my opinion the decision in Department overrules, without mentioning it, the case of Beeson v. Green Mountain Co., 57 Cal. 20. If the doctrine of that case is to be wholly set aside, I think it should be done by the ...
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The petitioner was convicted before Robert Edgar, claiming to be justice of the peace of the town of Berkeley, of violating an ordinance of that municipality. On appeal to the superior court the judgment of the justice’s court was affirmed, and in pursuance thereof petitioner is held in custody of the sheriff of Alameda county. He claims that his imprisonment was unlawful: First, because there is ...
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Administba-tioh: community property: community debts. 1. The interest or property of the wife in the piano under the contract was community property. Under the community system 'in force in this Territory, and as it existed under the laws of Spain and Mexico, the surviving husband has the right to administer upon community property to the extent at least of selling the same to pay the debts of th...
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The opinion of the court was delivered by The testimony introduced by the plaintiffs below showed that the deceased, up to the time he stepped on the track, was walking in a place of safety between what is called the main line and the track next to it. He was familiar with the location, and had traveled over the ground adjacent to these railroad-tracks many times. He knew that the employees of th...
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The opinion of the court was delivered by In the recent case of Hornaday v. The State’ (62 Pac. 329), it was decided that the powers of the legislative committee which had been authorized by chapter 13 of the Laws of 1899 to secure a site for an asylum for the insane were limited to the selection of a site and did not extend to the purchase of the one selected, or the fixing of a price *335to be ...
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The opinion of the court was delivered by This was an action by Edmond B. and Harriet S. Newton against Stephen and Cornelia Lyon and George and Josie Hitchcock to compel the *307execution of a-conveyance of a quarter-section of land in specific performance of an agreement which Elam S. Hitchcock, the ancestor of defendants and a former owner of the land, had made to devise it by last will to the ...
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The opinion of the court was delivered by On the 27th day of May, 1894, plaintiff below, Lena Price, took passage at Wichita on one of the passenger-trains of the Atchison, Topeka & Santa Fe Railroad Company, then operated by receivers, intending to ride thereon to Woodward, I. T. After the train had started, she presented to the conductor the *328return portion of a ticket from Wichita to Woodwa...
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The opinion of the court was delivered by This was an action on a judgment rendered by a court of record of New York in favor of Cornelia U. Elliott against the J. B. Watkins *292Land Mortgage Company. Judgment was again rendered in favor of Elliott, and from it error has been prosecuted to this court. The mortgage company is a loan corporation organized under the laws of Colorado. Suit was brough...
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Error from Reno district court. Dismissed. ...
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The opinion of the court was delivered by A. Garnier, jr., brought an action against James M. Squires, setting up three causes of action : (1) For slander, in falsely charging him with the larceny of $500; (2) for false imprisonment, by holding him at the point of a revolver in illegal restraint for a period of about thirty minutes; and (3) for an unlawful search of plaintiff’s premises ; and he ...
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Error from court'of appeals, southern department. Affirmed. ...
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The opinion of the court was delivered by John W. Allen, James P. McGuire, John H. Barry, and T. J. Emlen, who owned sis acres of land near Atchison upon which there were machinery and appliances for the manufacture of vitrified brick, leased the same to John Gaffney for a term of one year at a stipulated rental, payable monthly. The instrument also provided that the lessors should have and retain...
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The opinion of the court was delivered by This was an action by the board of county commissioners of the county of Morris against Frank L. Lower, as county treasurer, and the sureties on his official bond, for the recovery of public money alleged to have been received by Lower and for which he had not accounted. Briefly stated, the facts involved are that the board of county commissioners of Morri...
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*316The opinion of the court was delivered by This was an action brought by Anna Hari against Ohio township, Saline county, to recover damages for injuries sustained on account of a defective highway. The action was brought under section 579 of the General Statutes of 1899 (Gen. Stat. 1897, ch. 42, § 48), which allows a recovery against a township on account of defective highways, when the' truste...
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The opinion of the court was delivered by This was an action brought by O. W. Smith to recover a tract of land in Lyon county from O. S. Cross. After the action was begun Cross died, and the case was revived and prosecuted in the name of his heirs and the administrator of his estate. About 1881 E. W. Cunningham obtained a tax-sale certificate on the land, and the interest thus acquired was sold an...
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The defendant in error sued the plaintiff in error upon a benefit certificate issued on the life of F. S. Bauersfeld, and recovered judgment in the court below. A clause in the benefit certificate read : “No action can or shall be maintained on this certificate unless brought within one year from the date of the death of said neighbor.” The holders of certificates in the society are called “neighb...
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Error from Reno district court. Certified. ...
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after stating the facts, delivered the opinion of the court. We will consider but one question, which is decisive of the controversy; that is, whether it was incumbent upon the claimant, who was present at the hearing and directed the prosecution of his demand, to make his case in the first instance, to produce other proof in support of his demand than the allowance of the administrator. In other ...
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after stating the facts, delivered the opinion of the court. 1. Whatever may be the rule elsewhere, in this state evidence may be given in a civil case of the testimony of a witness deceased or out of the state, given on a former trial between the same párties, relating to the same matter: Hill’s Ann. Laws Or., § 706, Subd. 8. If, therefore, Blaker was out of the state at the time of the trial, th...
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delivered the opinion of the court. The defendant Andrew Carlson was convicted upon an indictment charging him with the crime of assault and robbery, being armed with a dangerous weapon, alleged to have been committed in Multnomah County, November 4, 1899, by putting C. E. Harding and C. H. Knud*21soil in fear, and taking from each a watch and certain gold, silver, and nickel coins; and, having be...
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After stating the facts, delivered the opinion of the court: This record shows that Youngberg became the owner of the mining claims by virtue of the judgment against Hoge and sale of the property under the execution issued on that judgment prior to the pretended conveyance from Fields to Walker. The legal title was in Youngberg, subject to the mortgage lien held by Fields for the benefit of the b...
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This action was brought to recover damages arising from the alleged negligence of the defendant company in running its cars over and killing 18 head of horses of the plaintiff, which were being used by a contractor in the construction of a side track or switch on defendant’s road at Onyx, Idaho. *414After tbe plaintiff’s testimony was introduced the defendant moved for a nonsuit on the ground “tha...
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- The defendant was charged by information with the crime defined by Sec. 4221 R. S. 1898, which is as follows: • ' “Any person who shall' carnally and unlawfully know any female over the age of thirteen years and under 'the age of eighteen years, shall be guilty of a felony.” The terms in which the crime is alleged in the information are as follows: “That John H. Williamson, in and upon one Belle...
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The complaint, in substance, alleges that on the 19th day of November, 1896, the defendant by its duly qualified treasurer and collector collected from the plaintiff $11,304.80, as and for a tax levied and assessed on and respecting the net proceeds of plaintiff’s mine, from May 31st, 1895, "to and including May 31, 1896; that said levy, assessment and collection of said tax on the net proceeds of...
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This suit was brought to recover the value of a Jersey cow alleged to have been killed by the appellant because of the negligence and careless running of a locomotive and train of cars. The complaint alleges that said cow casually and without the fault of plaintiff strayed in and upon the track and grounds occupied by the railroad of defendant, about two miles east of the city of Lewiston, upon wh...
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This action was brought by the plaintiff to foreclose a chattel mortgage upon the wool of four thousand head of sheep, executed by the defendant Perry Franklin to the plaintiff to secure the payment of certain - moneys, advanced or loaned by plaintiff to said Franklin. The facts, as shown by the record, are substantially as follows: On the twenty-third day of November, 1896, and the fourth day of ...
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This action was brought by the appellants to obtain an injunction against the defendants, restraining said defendants “from preventing plaintiffs [appellants! from putting in a proper box or boxes for the measurement of fifty inches of water,” and to restrain defendants from interfering with the flow of water through that certain ditch of plaintiffs described in plaintiffs’ complaint. The followin...
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The defendant was convicted of the crime of grand larceny in the alleged stealing of five head of cattle. The only evidence against the defendant is the finding in his possession of the hides of some of the alleged stolen cattle. Against this evidence defendant alleges that he bought said cattle, giving the time and circumstances under which the purchase was made. Earl McCullough, a witness for th...
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The plaintiff and appellant is the owner of a certain tract of land in San Mateo county, through which the waters of San Mateo creek flow in a natural channel. The defendant is a corporation conducting and carrying on the business of supplying the inhabitants of the city and county of San Francisco with water. It is charged in plaintiff's complaint that defendant is engaged in constructing a tunne...
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Action to quiet plaintiff’s title to an undivided two-thirds interest in a certain mining claim, known as the ‘‘Baron Mine, ’ ’ in the Randsburg district. Judgment in the usual form was entered, quieting plaintiff’s title to thirty-two sixtieths of the mine, also quieting the title of defendant Middlecoff, grantee of plaintiff, to eight-sixtieths, and the remaining twenty-sixtieths to defendants a...
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Appeal by the defendant Rohrbough from an order made on the application of the defendant, Frankie White, directing the issue of a writ of assistance. The case, stripped of immaterial circumstances, is this: In a suit brought by the plaintiff against the defendant, Mrs. White – in which she had filed a cross-complaint – an interlocutory judgment was entered in her favor for divorce; and afterward, ...
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This is an action at law for money had and received, brought by plaintiff, through his guardian, against the defendant Hearst. Judgment went against the plaintiff, and he appeals from the judgment and from an order denying his motion for a new trial. The main features of the case are these: On June 6, 1897, Timothy Hallinan, *593John Moholy and Frank Keller, who were firemen, lost their lives in t...
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Action against the constable of Wilmington township, Los Angeles county, and his bondsmen to recover damages for injuring the person of plaintiff while arresting him. The trial was by the court without a jury, and plaintiff had judgment, from which defendants appealed. The arrest was made in the town of San Pedro, and the court found that at the time plaintiff was "willfully and maliciously distur...
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This is an appeal by Mary Trobock from an order denying her motion for a new trial. The order was affirmed by Department, upon the following statement and opinion: – "Judgment was rendered by the lower court against the appellant, Mary Trobock, and her co-defendant, Antonio Trobock, for the foreclosure of a mortgage for two thousand dollars and interest, executed to the plaintiff by the latter. Ma...
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Judgment was rendered by the lower court against the appellant, Mary Troboek, and her eodefendant Antonio Troboek, for the foreclosure of a mortgage for $2,000 and interest, executed to the plaintiff by the latter. Mary Troboek appeals from an order denying her motion for new trial. 1. The main question in the case is whether the action was barred, as against her, by the statute of limitations. Th...
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This action is brought by the assignee of the real estate firm of Hooker Lent, and is based upon *Page 558 a broker's contract entered into by defendant April 10, 1897. The material parts of this contract are as follows: "For and in consideration of the services to be performed by Messrs. Hooker Lent. I hereby employ them as my sole and exclusive agents to sell for me that certain real property....
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[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 544 The Pacific Bank, being then insolvent, closed its doors on June 23, 1893, and on November 3, 1893, was duly declared insolvent in a proceeding taken under section 11 of the bank commissioners' act, and since that time has been in liquidation, and at the ...
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Appellant was convicted of murder in the first degree and sentenced to death. His appeal is from the judgment and from an order denying his motion for a new trial. The principal ground of the appeal is that the verdict is contrary to law and the evidence, and upon this point counsel contend that all the evidence – that introduced by the prosecution no less than the evidence of the defendant himsel...
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Defendant has been convicted of the crime of murder and sentenced to life imprisonment. He now attacks the evidence as not being sufficient to support *Page 593 the verdict. The killing is conceded, and self-defense was the plea at the trial. There was bad blood between these two men, and communicated threats of bodily harm had been made by both a short time prior to the homicide. The single eyew...
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A motion has been made to dismiss the appeal from the judgment in the above-entitled action, based upon a stipulation signed by certain attorneys of this court, representing themselves as attorneys respectively for the appellant and respondent. No transcript on appeal has been filed, nor has the moving party presented any certificate from the clerk of the superior court from which it can be deter...
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[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 602 The defendant has been convicted of the crime of burglary, and appeals to this court. The information charged that defendant entered "the basement room of a certain store, with intent to commit arson." It is now claimed that the pleading does not state th...
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F.A. Hihn Company, a corporation, and a creditor of said insolvent corporation, appeals from the order of sale of the property of said insolvent debtor. The first objection on the part of the appellant is that the petition of the assignee for the sale is not sufficient; that it does not allege that the property of the insolvent has been assigned to the petitioner; that it does not show a necessity...
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This is an appeal by two of the defendants, the Farmers’ Ditch Company and George D. Bliss, from the judgment and from an order denying their motion for a new trial. The case involves certain water rights in the Kaweah river. The Kaweah river is a natural watercourse which has its source in the Sierra Nevada mountains, and flows westerly into the San Joaquin valley and through Tulare county. At...
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Appeal by the plaintiff from the judgment and an order denying his motion for a new trial. Defendants were the owners of three several tracts of farming land in Contra Costa county, and also of lots 7, 13, and 14, in block K, in the town of Concord, in said county, which lots are also referred to in the record as "the Neff property." Prior to March 31, 1895, defendants mortgaged two of the tracts ...
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This was an action in claim and delivery, brought in the district court of Maricopa County, on October 26, 1895, by the Farmers and Merchants’ Bank against L. H. Orme, to recover the possession of a stock of hardware and other chattels, held by the said Orme, as sheriff, under a writ of attachment issued out of said district court in the suit of the John Deere Plow Company against the Arizona Hard...
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This proceeding is similar in all respects to that in the case of Ponting v. Isaman, ante, p. 279 (decided by *291this court at the present term), 62 Pac. 680, and is in tbe same condition in all respects. What we said in the last-named case applies here, and is decisive of this appeal, for which reasons the judgment appealed from is reversed, and this proceeding remanded to the district court, wi...
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This proceeding is similar in all respects to that in the case of Ponting v. Isaman, ante, p. 283 (decided by this court at the present term), 62 Pac. 680, and is in the same condition in all respects. What we said in the last-named case applies here, and is decisive of this appeal, for which reasons the judgment appealed from is reversed, and this proceeding remanded to the district court, with d...
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Error from Labette district court. Affirmed. ...
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Error from court of appeals, northern department. Dismissed. ...
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Original proceeding in mandamus. Writ denied. ...
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Error from Leavenworth district court. Affirmed. ...
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Error from Sumner district court. Affirmed. ...
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Error from court of appeals, northern department. Affirmed. ...
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Certified. ...
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Certified. ...
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No opinion filed....
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Certified. ...
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*136The opinion of the court was delivered by The defendant in error, S. A. Frazier, as plaintiff below, brought suit in the district court of Jefferson county against the plaintiffs in error for the recovery of the southeast quarter of section 9, township 10, range 17, in Jefferson county, claiming title under a tax deed, and for rent and profits. The answer was a general denial. The case was tri...
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On information in this case appellant was charged with having stolen three cows in Wasatch county, in June, 1898. The only direct testimony as to venue offered at the trial was that of Frank Clift, an accomplice, who said, speaking of the cattle he and defendant stole, “ They were found in Summit county.” The defendant asked the court to instruct the jury as follows: “ Before you can convict defen...
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No trial fee haying been paid and no one appearing for appellant at the time set for hearing, the judgment was affirmed on motion of respondent. No opinion. Affirmed ....
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Pursuant to the written stipulation of the parties the appeal was dismissed. No opinion. Dismissed....
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Action on accountin Justice’s Court,Clackamas County. Judgment for plaintiff. Defendant appealed to circuit court. Verdict for the defendant by direction of court. From this judgment, plaintiff takes this appeal. Dismissed upon stipulation of parties. No opinion.Dismissed....
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Action by John Borwick against A. Taylor and Christie Oaks on a promissory note resulting in a verdict and judgment for plaintiff. Dismissed on motion of appellants.Dismissed....
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On stipulation of the parties the appeal was dismissed. No opinion. Dismissed....
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Pursuant to the agreement of the parties, the appeal herein was dismissed. No opinion. Dismissed....
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