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All Reporters → p2d → Volume 110

Opinions in p2d Volume 110

Petitioner herein seeks a statutory “review” by this court of a disciplinary proceeding which was instituted against him as a practicing attorney at law in this state, and which resulted in a recommendation by the State Bar to this court to the effect that petitioner be suspended from the practice of the law for a period of one year. More particularly, the sole question that is presented herein re...
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This action is one to set aside a grant deed, to quiet title to the real property described therein, and for an accounting of the rents, issues and profits derived from said real property during the time the defendants were in the possession thereof. The deed was executed by Apolonio Bailón Zapata and Erolinda Moreno Zapata, husband and wife, as grantors in favor of the Board of Missions of the...
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A writ of certiorari was granted by this court to consider another problem arising out of the heirship proceeding in the estate of Michael F. O’Dea, deceased. Respondent demurred to the petition and moved to dismiss the writ. The facts regarding the estate and the heirship proceeding generally are fully set out in Estate of O’Dea, 15 Cal. (2d) 637 [104 Pac. (2d) 368], and O’Day v. Superior...
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This controversy is between the owners of mining property, known as the Pennsylvania and Jefferson mines, upon whose land there is the outcropping of a gold-bearing quartz vein, and the owners of non-mineral surface ' land, known as the Ames Tract, beneath the surface of which this vein dips. The latter, as plaintiffs, brought suit for an injunction to prevent defendants, the owners of the Pennsyl...
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Mary Estelle Sweesy filed in the Superior Court in Los Angeles County a petition for a writ of mandate praying that the respondents be directed to order the payment to her of certain monthly instalments under the 1937 amendment to the County Peace Officers’ Retirement Act (Stats. 1937, p. 664). The trial court sustained a demurrer to the petition without leave to amend. The petitioner appealed fr...
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Defendants appeal from a judgment rendered by the court sitting without a jury awarding plaintiff $3,500 damages for injury to the optic nerve of his left eye, and progressive impairment of vision and blindness resulting therefrom. That injury-and other injuries resulted from a collision on April 5, 1939, in the day time between plaintiff’s motorcycle and defendant Sessions’ delivery truck, bei...
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Defendants David K. Kimball and Kimball Motor Car Company appeal from a judgment for plaintiffs in an action for damages sustained by the latter in an automobile accident which occurred on November 24, 1935, some twenty-five miles south of Bakersfield on Highway No. 99. The car in which plaintiffs were riding collided with a Cadillac automobile owned by the defendants Kimball and driven by the ...
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Petitioner seeks an annulment of an award made against him by the Industrial Accident Commission in favor of Claude Hooper, a jockey suffering injuries while riding a horse for petitioner in a race at Del Mar, California. The respondent Commission found that Hooper was an employee, as against the defense that he was an independent contractor and accordingly made the award to Hooper including an i...
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Plaintiff, assignee of the payees of two promissory notes, appeals from a judgment in favor of defendant makers of the notes. The main question presented on appeal is whether the trial court erred in receiving testimony of the contents of a collateral written agreement, which defendants *814 claim was lost. Following the trial of the ease, both defendants died and the executor and administrator...
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Appeal from judgment after order sustaining demurrer without leave to amend. Petitioners had been certified as eligible for, and had been appointed to, positions of “collector” of State Board of Equalization. While holding those positions at salaries of $120 per month, they were assigned to, and for different periods performed the duties of the position of “investigator” which is classified as a ...
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From a judgment after order sustaining a general demurrer to the complaint without leave to amend, plaintiff appeals. The complaint alleges that prior to Decemner, 1938, the city commenced the construction of a storm drain within an alley, which intersects Indiana Street, 150 feet west of Lincoln Avenue, both public highways in the city of Los Angeles; that such construction required an excavat...
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Respondent, an elderly lady (85 years of age), on or about February 6, 1936, executed a deed to certain real property to her son, Otto Teel. The deed was delivered to appellant, “The Bank of Eureka”, placed in an envelope with another deed to another son with the following instructions typed upon the envelope containing both deeds: “To be delivered upon my death and in no event to be withdrawn by...
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Appellants herein petition for a rehearing upon the grounds formerly urged and for the additional claimed reason that if the finding that they were not entitled to take under the clause of the will devising them the residue of the estate becomes final under the order as affirmed by this court, they would no longer have an interest entitling them to maintain the contest. In so far as James L. Crane...
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43 Cal.App.2d 46 (1941) WILLIAM B. WRIGHT, Appellant, v. DAISY WRIGHT, Respondent. Civ. No. 2617. California Court of Appeals. Fourth Appellate District. February 14, 1941. N. Lindsey South and Charles A. Hill for Appellant. Rae B. Carter and Harris, Willey & Harris for Respondent. MARKS, J. This is a motion to dismiss the appeal from a judgment, and from an order denying the motion fo...
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This is an appeal from a judgment in favor of defendants in an action brought by plaintiff to recover damages for personal injuries sustained as the result of an *33automobile accident. The case was tried before the court sitting without a jury. The facts, so far as necessary to a determination of the question here presented, are as follows: The accident occurred on February 1, 1937, about 7:30 in...
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This is a motion to dismiss the appeal from a judgment, and from an order denying the motion for new trial. Such an order is not appealable. (Code Civ. Proc., see. 963.) There is nothing on file here other than the moving papers and the certificate of the county clerk, from which it appears that the motion for new trial was denied on April 27, 1940; that notice of its denial was filed on April 29,...
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This is an appeal from a judgment for damages resulting from a breach of contract on the part of defendant, wherein it agreed to purchase grade A milk produced by plaintiffs on their farm near Bakersfield, in Kern County. The case has been here before (O’Hare v. Peacock Dairies, Inc., 26 Cal. App. (2d) 345 [79 Pac. (2d) 433] ; O’Hare v. Peacock Dairies, Inc., 26 Cal. App. (2d) 753 [79 Pac. (2d) 44...
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This is an appeal by the plaintiff from the judgment of the Superior Court of the State of California, in and for the County of San Mateo, denying a writ of mandate against the defendant. The plaintiff is the owner of Lots 1, 2 and 3, in Block B of Baywood Blocks, located in the city of San Mateo. Being desirous of erecting a gasoline service station he applied for a permit. Lots 1 and 2 are lo...
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Defendant was charged by information with the crime of murder and was found guilty by a jury of murder in the second degree. He was also charged with a prior conviction of murder and this charge was admitted. He has appealed from the judgment of conviction. The decedent and the defendant were twin brothers. In the evening of May 11, 1940, they were visiting at the home of their sister, Mrs. Wil...
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Defendant was accused by information of the crime of grand theft and was convicted at a jury trial. He has appealed from the judgment of conviction and from the order denying his motion for a new trial. It is now contended that the evidence is insufficient to justify the conviction. Andrew S. Thomson, a salesman for the American Cheek Writer Company, parked his automobile in front of his reside...
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This is an appeal from an order in probate by which the court set apart, for the benefit of the widow of George Furtsch, and as a homestead, certain real property mentioned in the inventory of decedent’s estate. Appellant claims that Mrs. Furtsch’s petition did not contain facts constituting a legally sufficient application for a declared homestead within section 660 of the Probate Code. He also c...
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Defendant appeals from a judgment for plaintiff based on an indebtedness growing out of the dissolution of a partnership. The principal questions involved relate to matters of pleading and proof. The action was filed in the justice’s court, the complaint being in the form of a common count, alleging that defendant became indebted to plaintiff in the sum of $200 for money had and received from one ...
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This appeal is prosecuted from a judgment entered upon an order granting a nonsuit at the conclusion of plaintiffs’ case. There is also an attempted appeal from the order granting such nonsuit. The pertinent facts necessary for an understanding of the issues in this case are that Homer Laughlin was the owner of a certain building in downtown Los Angeles, the ground floor and basement of which was ...
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From a judgment following an order granting the motion of the defendants for a nonsuit in an action for an accounting the plaintiff has appealed. The pleadings were copious. On the trial counsel stipulated in open court minutely regarding the issues. The judgment roll in a former action between the same parties was freely used by each of them. After the case had been so presented the defendants m...
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This is a motion to dismiss this appeal from the judgment. Nothing has been filed in this court except the papers on this motion. From the certificate of the county clerk it appears that the judgment was entered on June 28, 1940; that notice of appeal and notice to prepare transcript were filed on August 28, 1940, and that on October 26, 1940, an order was entered in the trial court terminating pr...
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Appeal by officials of the Department of Motor Vehicles from a decree enjoining them from enforcing the provisions of chapter 705, Statutes 1937 [Deering’s Gen. Laws, 1937, Act 5132] of the State of California against six different plaintiffs who joined in bringing the suit, setting up separately the same cause of action. Three of the plaintiffs are California corporations; one, a copartnership wi...
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Defendant appeals from a judgment determining that a deed naming him as a joint grantee of certain real property is “void for failure of legal delivery thereof”, and that he holds the real property in trust for the benefit of the estate of Emma E. Donnelly, deceased, or for the residuary legatees named in her will. The two plaintiffs are executrices of the will of Emma E. Donnelly, and bring th...
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On June 11, 1927, Jean Cazaurang executed a will leaving nine-tenths of his estate to his second cousin Marie Lees, now Marie Lees Thomas. On January 2, 1929, immediately to the right of and below his signature on that will he wrote that date and provisions leaving $1 to the son of his niece and $1 to his wife, and beneath that he again signed his name. Between his signature to the original will ...
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For convenience we shall refer to the first of the above cases, with its three defendants, as the Lopez case, and the second one, with its sole defendant, as the Fagan case. There was no trial in either ease; all of the defendants pleaded guilty, judgment following immediately without the taking of any evidence and without any reference to or report from a probation officer. PROCEEDINGS IN LOPE...
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1 Reported in 110 P.2d 149. This action was brought to recover the sum of eight hundred dollars on account of alleged false and fraudulent representations made by the defendant M.L. Graham in a real estate transaction, and for an overcharge of three dollars for revenue stamps. The cause was tried to a jury, and resulted in a verdict in favor of the plaintiff in the sum of $773.80, with interest. T...
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1 Reported in 110 P.2d 154. Plaintiffs instituted this action, naming as defendants the state of Washington and Walter J. Robinson, as director of agriculture, asking a declaratory judgment declaring unconstitutional chapter 112, Laws of 1939, p. 319 (Rem. Rev. Stat. (Sup.), § 6294-51 [P.C. § 2553-21] et seq.), "An Act relating to the manufacture and distribution of candy and other confectionery p...
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1 Reported in 110 P.2d 159. Independent actions in mandamus were brought in the superior court by plaintiffs so that they might be allowed to fill civil service positions, known as "account clerks," and to recover the difference in salary between that position and the next lower position of "intermediate clerk." The cases were tried together, and have been consolidated for purposes of appeal. The ...
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1 Reported in 110 P.2d 162. The relators are members of the house of representatives of the state legislature, and have been in attendance since it began its current session *Page 445 at Olympia on January 13th. Invoking the original jurisdiction of this court, they pray for a writ of mandate peremptorily directing the state auditor to issue warrants reimbursing them for sums which they allege th...
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1 Reported in 110 P.2d 172. Plaintiff, trustee in bankruptcy of the marital community consisting of defendants John Moe and Borghild J. Moe, instituted an action, March, 1938, to cancel, as a fraudulent conveyance, a quitclaim deed, executed by John Moe, covering certain realty which was his separate property; also, to establish in favor of the trustee an equitable lien upon the realty in an amoun...
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1 Reported in 110 P.2d 179. This action was instituted by Ray Read, through his guardianad litem, and by his parents to recover damages from the school district arising from a personal injury to Ray Read while engaged in playing a game during a physical education class period. Ray Read sought recovery for personal injuries, and his parents sought to recover the expenses incurred as the result of i...
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1 Reported in 110 P.2d 182. Three actions were instituted before the superior court for King county by several fishermen representing their own claims and as assignees of other fishermen, one action against New England Fish Company, a corporation, one against Pioneer Canneries, Inc., a corporation, and the third against Pioneer Sea Foods Company, a corporation. The actions were consolidated for tr...
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1 Reported in 110 P.2d 190. This is an action for libel brought against the county commissioners of Pierce county, its auditor, its treasurer, its prosecuting attorney, one of his assistants, and the sureties on their official bonds. On appeal, there is but one assignment of error, to wit, "The lower court erred in sustaining the general demurrers." The complaint to which the demurrers were sustai...
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1 Reported in 110 P.2d 197. James Clarke, the plaintiff in this action, was an experienced automobile body and fender repairman. He had also worked in and around a service station, and had also for some time operated a garage of his own. During the month of March, 1939, plaintiff and one Clarence Glass formed a partnership for the purpose of engaging in the business of repairing and painting autom...
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OPINION On April 23, 1931, Lewis R. Arnold executed his holographic will making his wife, Frances Lillian Arnold, his sole beneficiary. On October 7, 1938, she obtained a divorce from him. She sought no alimony in the action. The sole heirs at law of the deceased are a brother and sister. Shortly after the death of Lewis R. Arnold, respondent produced the will and ...
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OPINION Appellant and respondent were plaintiff and defendant, respectively, in the trial court; they will sometimes be so designated herein. Respondent is the owner of the premises in which he conducts a gambling and liquor establishment known as the Palace Bar, or Palace Club, in the city of Reno. On May 31, 1935, appellant took a five-year lease on the rear port...
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*23 OPINION By the Court, Two motions are before us, a motion to dismiss the appeal and a motion for leave to file the judgment roll. The motion made by respondent to dismiss the appeal must be denied. It is made upon the sole ground that appellant’s bill of exceptions was not filed within the time allowed by statute. Stats. 1937, c. 32, sec. 31. Even though this be true it furnishes no gro...
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OPINION The petition filed herein represents that the respondents John B. Dangberg and H.F. Dangberg are the directors of the H.F. Dangberg Land Live Stock Company, a corporation; that since August 12, 1940, they have been the only directors thereof. It is further alleged that the petitioner and relator is and has been since September 10, 1940, a stockholder in sa...
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The Town of South Tucson was, on January 18, 1938, by an order of the Board of Supervisors of Pima county, disincorporated. In the same order *Page 3 the board appointed R.G. Darrow trustee with authority, as provided in section 16-219, Arizona Code, 1939, "to wind up the affairs of the corporation, sell and convey its property, real and personal, pay the debts of the town, and return the surplus...
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This is an appeal by Hooker L. Campbell, hereinafter called plaintiff, from an instructed verdict and judgment thereon in a case wherein Clarence T. English and E.M. Jones, doing business as English Freight Co., and W.E. Ivey were defendants. The action was one for personal injuries to plaintiff, which it was alleged were caused by the negligence of defendants. The facts necessary for a determinat...
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This is an action for damages for breach of contract to purchase land. On March 22, 1929, the McLaws, husband and wife, plaintiffs herein, agreed to sell, and defendant Reed agreed to buy, a section of land and certain equipment located in Navajo county. Parts of the contract read: "The sale price of the said premises, and which the second party agrees to pay, is Seven Thousand Dollars ($7,000), T...
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This is an appeal by Helen Sprague Zeliff Phen from an instructed verdict and judgment against her in an action wherein she was plaintiff and All American Bus Lines, Inc., a corporation, and Clyde E. Hendrix were defendants. The case came on for trial before the court sitting with a jury, and plaintiff testified, in substance, that on October 4, 1937, she was a paid passenger on the bus of defenda...
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The question presented by this appeal is whether a claim for wages filed pursuant to section 62-215, Arizona Code of 1939, or the lien of a chattel mortgage has priority. It arises out of the following facts. The administratrix of the estate of Harry B. Prior brought an action against Pryors, Printers, a corporation, and others, on July 27, 1937, in which she sought recovery of $2500, the establis...
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This is an appeal by Albert A. Hays, as receiver of J.D. Halstead Lumber Company, a corporation, hereinafter called the company, from a judgment in favor of the Bank of Arizona, a corporation, hereinafter called the bank. The facts of the case are not in serious dispute and may be stated as follows. For many years C.W. Lincicum was the manager of the Williams branch of the company. He and his wife...
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The controlling question is whether the trial court had authority and jurisdiction to enter the order requiring defendant to pay the attorney's fee, and whether the trial court had jurisdiction to try the defendant and convict him for violation of such order. He contends the order requiring payment was without authority and void for lack of jurisdiction. Essential facts are that Venus French filed...
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This is an appeal by Salim Ackel from a judgment rendered in a suit wherein Brigida Ackel was plaintiff and Salim Ackel was defendant and cross-complainant. The undisputed facts affecting the appeal may be stated as follows. Plaintiff and defendant were married December 5, 1900, and up to the time of the granting of a decree of divorce in the present action were husband and wife. Of that union fou...
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On or about July 25,1935, one Dave Vadnais ordered of the firm, doing business under the name of Mammoth Garage at Lakeview, Oregon, one International Motor truck for which he agreed to pay the total sum of $1,982. ■When said order was given, C. D. Arthur and Paul M. Drenkel comprised the firm doing business at Lake- *101 view under the name of Mammoth Garage. This action was ...
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Mr. Ancel C. Jones, an attorney admitted to practice in the courts of this state, was found guilty by the Board of Governors of the Oregon State Bar of unprofessional conduct in that— “On or about the 26th day of December, 1939, and thereafter, the said Ancel C. Jones, being during said time under no obligation of blood, relationship or trust, did solicit professional employment of one H. B. Al...
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THESE parties appeared in reverse order in the trial court and are hereinafter referred to as plaintiff and the board, respectively. Plaintiff brought mandamus against numerous officials connected with the administration of old age pensions. All save those here appearing were ordered dismissed and those orders are not questioned. *Page 197 Peremptory writ issued as prayed commanding the board to ...
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PLAINTIFF in error, hereinafter referred to as defendant, was charged in a two-count information with murder by abortion. On the first, charging commission by an instrument, the verdict was guilty; on the second, charging commission by noxious drugs, not guilty. He was sentenced to from ten to twelve years in the state penitentiary. To review that judgment he prosecutes this writ. The twenty-three...
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delivered the opinion of the court. Basically, this controversy developed from the wage scale incorporated in an agreement between the state and the contractor for the construction of a highway underpass beneath certain railroad tracks at 46th *208avenue and Vine street in Denver. The pending proceeding was brought in the district court by defendants in error to vacate a finding and award of the I...
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THIS is a criminal proceeding instituted on behalf of the people in connection with an automobile accident occurring within the municipal area of the City and *Page 204 County of Denver. Graham, defendant in error, to whom we hereinafter refer as defendant, was charged, in three counts of an information filed in the district court, with violations of sections 174 and 176, chapter 16, '35 C.S.A., ...
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DEFENDANT in error, to whom we hereinafter refer as McKinney, brought an unlawful detainer action against plaintiff in error, herein mentioned as Jones, and had judgment for possession. Action was predicated on a *Page 216 contract of sale of land from McKinney to Jones which contained the usual forfeiture clause. Reversal is sought principally on the ground that the deed under which McKinney ass...
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This is an appeal by the plaintiff, Janet R. Smith, from a judgment entered for the defendants, pursuant to a directed verdict, in a malpractice case wherein the plaintiff seeks to recover judgment against the defendants for the sum of $150,000. 1. Undisputed Facts. The plaintiff was severely injured in an explosion in a chemical room of the Standard Oil Company at Casper, Wyoming, on January 1...
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The respondent has filed a petition for rehearing in this case accompanied by a brief in support thereof. The points and arguments urged therein should, in our judgment, more appropriately be submitted to the court of final authority on federal law, which we are not. If in our decision heretofore rendered in this case we have incorrectly interpreted the trend of judicial opinion as expressed by th...
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Robert May, Adm'r, et al. appeal from a judgment of the district court of Garvin county in favor of G.T. Casker. The evidence shows that September 26, 1932, Vivian Casker filed an action in the district court of Garvin county against G.T. Casker for a divorce and adjustment of property rights, but no summons was issued then or thereafter. On the same day a restraining order was issued, but this wa...
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This is an appeal by the plaintiff in error, plaintiff below, from an order which sustained the separate demurrer of the defendant in error, one of the defendants below, to the amended petition of said plaintiff in an action brought to recover damages for personal injuries alleged to have been sustained as the result of the negligence of Isaac Bristow, the other defendant below, in the operation o...
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Protestants appeal from the denial by the Oklahoma Tax Commission of their protest against the issuance and enforcement of Order No. 8529. That order made on January 2, 1940, confined the exemption from the motor fuel tax granted in section 8, art. 14, ch. 66, S. L. 1939, exclusively to motor fuel used by farmers in farming lands owned or farmed by them, and denied the exemption on motor fuel purc...
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This cause is an outgrowth of Pierce v. Jones, 182 Okla. 515,78 P.2d 677. Morris was by the trial court appointed receiver of the property in that case, and upon his appointment he removed the drilling rig involved in that action to Oklahoma City, and stored it upon a vacant lot adjoining the property used by Jones in conducting a trucking business. Later he sold some of the property at a receiver...
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This is an action to cancel certain oil and gas royalty conveyances and to quiet title. Some of the defendants demurred to the petition and others were in default. Demurrer was sustained and plaintiffs elected to stand on the petition and judgment was rendered against them. The trial court refused to enter judgment against the defaulting defendants, but required proof to supplement the allegations...
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On March 7, 1935, the plaintiff filed its action against the defendants to enforce liability arising upon an open account and a guaranty thereof, and on the 3rd day of April, 1936, judgment was rendered against the defendants in favor of plaintiff. The sole question involved in this appeal is whether the plaintiff corporation was doing business within this state so that it was necessary to comply ...
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This is an action to determine the legal effect of certain deeds and to quiet title accordingly to two separate pieces of improved real estate in the city of Stillwater. From the judgment of the court quieting title to lot 11 in block 19, in the city of Stillwater, in Catherine Elizabeth Burdick Dalton as against plaintiffs, and quieting in Cora C. Burdick a contingent life estate in said premises...
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The plaintiff in error, George Doty, was tried and convicted in the district court of Cherokee county, upon information charging him with the theft of one black heifer, white-faced, with large black spot under left eye, muley, the property of Floyd Vann. The jury failed to agree on the punishment. Motion for new trial was denied on March 27, 1939; thereupon the court rendered judgment and sentence...
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Defendant was charged in the county court of McCurtain county with the crime of unlawful possession of intoxicating liquor, was tried, convicted and sentenced to pay a fine of $250 and serve 180 days in the county jail, and has appealed. This case arose from the search of defendant's apartment by the officers of McCurtain county in Idabel on the 17th day of April, 1939. It is contended that the se...
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The petitioners in the above-entitled causes filed petitions for writs of habeas corpus in this court on the 16th day of September, 1940, alleging they were unlawfully restrained of their liberty by George Goff, the sheriff of Oklahoma county, Okla. It was alleged in said petitions that defendants were being illegally restrained of their liberty by reason of (a) excessive bail, (b) by reason of th...
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The information in this case, filed in the county court of Okmulgee county, charges that George *167 Arnold did keep and have unlawfully in his possession seven quarts of whisky with the intention to sell the same. On the trial the jury returned a verdict finding him guilty and fixing his punishment at confinement for 30 days in the county jail and a fine of $50. An appeal by petition in erro...
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On behalf of Alvie Stinnett, a duly verified petition for writ of habeas corpus by which petitioner seeks to secure his release by order of this court from the custody of Jess F. Dunn, warden of the State Penitentiary at McAlester, was filed in this court and presented to the Presiding Judge. Thereupon a rule to show cause was entered and issued, returnable December 17, 1940. It appears, both by t...
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The defendant, L. L. Barfield, was by information charged in the county court of Rogers county with engaging for money, without a license, in a certain veterinary practice on October 27, 1937, was tried, convicted, and sentenced to pay a fine of $50 and costs, from which judgment and sentence he appeals to this court. *Page 196 The defendant makes two contentions: (1) That the information was ins...
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The defendant, Tiny Pickens, was by information charged with the unlawful possession of intoxicating liquor on September 11, 1937, tried, convicted, and sentenced to pay fine of $50 and to serve 45 days in the county jail, from which judgment and sentence she appeals to this court. The defendant contends that the court, erred in overruling her motion to suppress the evidence for the reason that th...
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The defendants, Dr. Wade Sisler and Jessie H. Kirk, were charged by information in the court of common pleas of Tulsa county with "willfully and knowingly" requiring and permitting one "Thelma Hensley, a female person," to work more than nine hours in one day in defendant's hospital. The court sustained defendant's demurrer to the information, and the state appeals. The appeal in this case was by ...
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Cecil Gragg, defendant, was charged in the court of common pleas of Oklahoma county with the crime of unlawful possession of intoxicating liquor, was tried before the court without a jury. A demurrer was sustained by the court, and defendant was discharged. From the ruling of the court the state has appealed on a reserved question of law. In Oklahoma Statutes 1931, section 3191, O.S.A. title 22, s...
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The defendant, J. S. Marsh, was convicted of the crime of embezzlement in the district court of Oklahoma county, and his punishment assessed at imprisonment in the State Penitentiary for one year, from which judgment and sentence he appealed to this court on the 9th day of January, 1940. Since this appeal was taken the defendant departed this life, as shown by death certificate filed in this co...
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This case involves a suit upon a promissory note executed by appellant in favor of Alfred J. Bell, who later transferred the note to respondent, plaintiff below. Appellant's defenses to the action in the lower court were (1) that the note had been given to A.J. Bell without any consideration therefor; and (2) that it had been compromised and paid. Appellant further contended respondent was not a h...
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On June 10, 1939, the Walker Bank and Trust Company was appointed receiver by the District Court of the Third Judicial District of the State of Utah to take over all of the assets of the White Fawn Milling Corporation, upon the application of Louis L. Marks, plaintiff in case No. 6229. Notice was given requiring creditors to file claims. *Page 3 During the years 1937, 1938 and part of 1939, the W...
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Lee James Harris, while riding a motorcycle owned by the Goodyear Tire Rubber Company, lost control of the machine and crashed into the side of a residence, injuring himself. He was employed by that company as a service helper. He claimed compensation under the Workmen's Compensation Law of this state, Rev. St. 1933, 42-1-1 et seq. His application was granted by the Industrial Commission, which m...
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The defendant, Austin Whitely, is charged with having committed the crime of burglary in the second degree. Whitely waived a jury trial and stated, through counsel, the desire to have the cause tried by the court. A hearing was had and the defendant was found guilty of burglary in the second degree. An appeal brings the matter to this court. It is admitted that someone committed a burglary in *Pag...
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An appeal from the District Court of Salt Lake County. Angelo Tellay was convicted of the crime of carnal knowledge of a female under the age of eighteen years, and appeals. The sixteen assignments of error present four questions: (1) Did the court err in ruling against appellant on his plea of former acquittal and once in jeopardy? (2) Was the admission in evidence of State's Exhibit "A" error? (...
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Counsel have very thoroughly and exhaustively briefed this case for us. The members of this court, however, have a decided difference of opinion upon the law. Our differences of opinion have apparently tended toward a confusion rather than a clarification of the law upon the issues. For that reason the following resume of those former opinions is submitted. The majority, if not all of us, agree...
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Plaintiff instituted this action against defendants Yeager and others to quiet title to a small tract of land in Salt Lake County. The complaint was in the usual form for actions to quiet title, greatly abbreviated. Defendants Yeager filed an answer and no demurrer to the answer was interposed. When the cause was called for trial plaintiff, upon suggestion of the trial court, moved for a judgment ...
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This action involves the constitutionality of section 95-2-10, R.S.U. 1933, as amended by Chap. 110, Laws Utah 1939. That section, with some deletions for the sake of brevity, reads as follows: *Page 40 "Any person may make affidavit before a court of competent jurisdiction that he has reason to believe, and does believe, setting forth the facts upon which such belief is based that any receptacle...
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The petition for rehearing is denied. However, there is a matter we desire to mention: Section 27 (3) provides for a retirement allowance based upon years of prior service. “Prior Service” is limited to service prior to July 1, 1937, in a status requisite for membership, Section 3(6). One who *593 holds a policy with the Teachers’ Insurance and Annuity Association of America upon which the st...
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Certiorari to the Industrial Commission to review an award for compensation and hospitalization as a result of injury sustained in employment. On August 7, 1939, Ralph Whitehead was working as a mucker in the Tintic Standard Mine. While climbing down a ladder in the mine he bumped his right hip on a 1 projecting timber. He reported the accident but completed the shift and reported on the ...
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This is an appeal from a decree of the District Court denying and dismissing the petition of Robert C. Pope and Lucille C. Pope for the adoption of an infant child of Edward E. Thompson and Florence Day Thompson. The controversy revolves about Finding No. 7 and the conclusions of law resting on it. Finding No. 7 reads as follows: “the natural parents have not been specially authorized or requir...
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This is an appeal from a judgment of the District Court of Utah County adjudging the individual defendants guilty of contempt for violating a judgment and decree of the court, entered September 13, 1937, in an action entitled Genola Town v. Santaquin City et al., which judgment and decree were by this court affirmed July 6, 1938, 96 Utah 88, 80 P.2d 930, 935. That was an action to compel Santaquin...
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Dr. Barton H. Wherritt died as a result of injuries received when his car plunged over an embankment in City Creek Canyon in Salt Lake City at about 12 o'clock midnight on February 4, 1940. His widow, Margaret M. Wherritt, in behalf of herself and her two minor daughters, filed with the Industrial Commission of Utah a dependent's claim for compensation for the accidental death of her husband. Afte...
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The proceedings in which the Industrial Accident Commission made an award of compensation in favor of Macerio Valdez are before this court upon the return to a writ of certiorari issued by the District Court of Appeal. The only question for decision is whether Valdez, at the time he was injured, was an employee of the petitioner S. A. Gerrard Company. The award against the petitioner and State ...
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17 Cal.2d 415 (1941) JOHN M. AULT, Petitioner, v. THE COUNCIL OF THE CITY OF SAN RAFAEL et al., Respondents. S. F. No. 16544. Supreme Court of California. In Bank. February 19, 1941. Lionel Browne for Petitioner. Martinelli & Gardiner for Respondents. CURTIS, J. Petitioner, as a registered elector of the City of San Rafael, filed his application for a writ of mandamus to compel respond...
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On January 7, 1930, the Superior Court of Santa Clara County awarded appellant Margaret C. Long an interlocutory decree of divorce against respondent Louis A. Long directing him to pay appellant $50 a month alimony for the six months from February 5, 1930, to and including July 5, 1930. This alimony was duly paid. The final decree of divorce, entered on March 30, 1931, neither awarded alimony to ...
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In addition to the appeal by Franklin P. Nutting and the American Vineyard & Investment Company from a judgment against them for damages caused by the death of Henry Watkins, Mildred Westra Ingalls and Mahlon Wilson Watkins, children of the deceased who were named as defendants in the action, have appealed from an order made *493 after judgment. The appellants against whom the judg...
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In January, 1939, Clifford A. Rohe, an attorney at law of this state, was notified to appear before Local Administrative Committee Number Seven of the State Bar of Los Angeles County and show cause why he should not be disciplined for professional misconduct arising out of his activities, in connection with a claim of his client, Miss Carlotta Monti, against' W. C. Fields. The attorney filed an a...
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Defendant was found guilty of first degree murder without recommendation of leniency in the Superior Court of Los Angeles County which pronounced *452the death sentence and denied a motion for a new trial. The cause comes before this court on an automatic appeal. The evidence establishes the following facts: Defendant, twenty-six years old and unmarried, was in love with Ruth Lugo, a twenty-nine y...
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John Reed and John Thurman were convicted of murder in the first degree. The jury recommended life imprisonment for Thurman; Reed was sentenced to die. They appeal from the judgment and the order denying their motions for a new trial. *406 The evidence establishes the following facts: George Stephenson, the deceased, lived alone in a cabin on the edge of the Colorado River near the little set...
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The case of People v. Reed, ante, p. 405 [110 Pac. (2d) 394], this day decided, completely disposes of all issues involved herein. On the authority thereof the judgment and order of the trial court are affirmed....
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An order sustaining general demurrers to a third amended complaint was followed by the judgment of dismissal from which this appeal is prosecuted against *486 Metropolitan Trust Company, P. T. Libby, Sam Weiss and Edward Flam. The complaint as amended purports to set forth five causes of action. The first count alleges facts which, the appellant declares, state a cause of acti...
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The petition of appellant for a hearing in this court after decision by the District Court of Appeal, Second Appellate District, Division One, was granted in order that further consideration might be given to the contentions of the appellant that in the matter of the appointment of a guardian of her estate the provisions of section 1461 of the Probate Code were not sufficiently complied with, a...
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Defendant was prosecuted and found guilty upon two counts of rape based on a single act of intercourse committed without the consent and against the will of a sixteen year old girl. Count 1 of the information charged that the rape was accomplished by force and violence, contrary to the provisions of subdivision 3 of section 261 of the Penal Code. Count 2, after alleging that it was “a different s...
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The defendant, William Johansen, was charged in two separate informations with the murder of two human beings in the city and county of San Francisco. In °one information he was charged with the murder of Lena Coffin on the 6th day of April, 1935, and in the other the charge was that he had murdered Irene Chandler, known also as Irene McCarthy, on the 24th day of June, 1940. The two informations w...
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Appeals by Gordon Hawkins, Mike Simeone and Bithel Beta Juanita Spinelli from judgments of conviction of the murder of Robert Sherrard, had upon an indictment wherein they were charged jointly with one Albert Ives, and from orders denying their separate motions for new trial. The defendants Ives, Hawkins and Spinelli, in addition to their pleas of not guilty, entered pleas of not guilty by reason...
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This is an appeal by the defendant as Franchise Tax Commissioner of the State of California from a judgment directing a refund of that part of the income tax for 1935 theretofore paid under protest by plaintiff. There is presented here for our consideration a single question of law, to wit: Under section 25 (a) of the California Personal Income Tax Act of 1935 [Deering’s Gen. Laws, 1937, A...
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This is an appeal by the defendant, as Franchise Tax Commissioner of the State of California, from a judgment directing a refund of the income tax for the year 1936 paid by plaintiff under protest. There is but a single question of law presented for decision, to wit: Was plaintiff, a nonresident of the United States, taxable under the California Personal Income Tax Act of 1935 [Deering’s G...
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This action was brought to recover money alleged to have been illegally assessed and collected as personal income taxes for the calendar year 1935. A general demurrer to the complaint was sustained without leave to amend and judgment was rendered in favor of defendant. Plaintiff appeals from the judgment. The following facts are set forth in the complaint: In 1933 and 1934 plaintiff and ce...
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This is an appeal from a judgment after verdict whereby the jury awarded the plaintiff $2,000 actual damages and $8,000 exemplary damages as the result of the breach of an alleged agreement of the defendant to marry the plaintiff. Plaintiff, a woman forty-five years of age, first met defendant at a social function in 1935. She had been married but had obtained a decree of divorce many year...
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Plaintiff appeals from a judgment entered upon the verdict of a jury in favor of defendants in an action to recover damages for personal injuries. A motion for new trial was automatically denied by failure of any action thereon within the statutory period (Code Civ. Proc., sec. 661). The appeal is primarily directed to challenging certain instructions upon contributory negligence given at defendan...
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This is an appeal from a judgment sustaining a demurrer to a third amended complaint without leave to amend, and dismissing the action. The complaint was to foreclose a materialman’s lien, upon real property in Kern County, described as follows: “Northwest quarter (y&) of Section 33, Township 11 North, Range 12 West, S. B. B. & M., and those certain mining claims *147located within said quarter-se...
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Appellant filed his petition for a writ of mandate requiring respondent, Junior College District and the Board of Education of the City of Long Beach to reinstate him in his position of “assistant to the supervisor of educational research” in the Long Beach Junior College, with the status of permanent tenure and to pay him the salary for such position for the time elapsing since his discharge at ...
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The transcripts on appeal herein were filed July 19, 1940. Thereafter appellant filed three requests *848for additional time within which to file his opening brief, which time expired October 11, 1940. No further requests for time having been made, and no brief having been filed, on January 17, 1941, an order was issued to appellant to show cause on February 26, 1941, why the appeal should not be ...
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This is an action to set aside a joint tenancy with the right of survivorship, and quiet the plaintiff’s title in and to certain money and a certain note and trust deed. On or about June 2, 1936, Norton H. Tharp, who was then 76 years of age, sold a ranch, which was his separate property for $13,500, receiving $3,500 in cash and a note for $10,000 secured by a trust deed upon the property. The not...
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This action was for the recovery of damages for the death of Amelia Ladas, the wife of Antone Ladas, and the mother of Steve, Margaret and Athena Ladas. From a judgment in favor of defendants this appeal was taken. About 9:30 P. M. on the 20th day of December, 1938, Amelia Ladas and her fifteen year old daughter, Margaret, alighted from a south bound street car at Tenth and V Streets in the cit...
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This is an appeal from the judgment rendered in favor of respondents upon the sustaining of a demurrer to the amended petition of appellant for a writ of mandate, requiring respondents to issue an off-sale distilled spirits license and other licenses described in the Alcoholic Beverage Control Act of the State of California. . (Stats. 1935, chap. 330, as amended; Deering’s Gen. Laws, [1937] Act 3...
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On October 27, 1936, Arthur P. Brown, and Maybelle B. Brown, his wife, two of the defendants and appellants, executed and delivered to The Mitchel Company, Ltd., a corporation, the predecessor in interest of plaintiffs and respondents, a mineral deed, which, omitting the opening and closing clauses, the description of property not involved in this case, and the consideration stated, was as follow...
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Appellant was charged with having committed a violation of the provisions of section 288a of the Penal Code, with and upon the person of one Roy Jones, on or about the 20th day of April, 1940, in the county of Orange. Trial by jury was had and a verdict returned finding appellant guilty as charged. A motion for a new trial *128 was made and denied. Notice of appeal was given from the order deny...
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In November of 1940, this cause was placed on the calendar, and heard on November 25th. The appellant’s opening brief was then long overdue under rule II, section 15. At that time, counsel for appellant stated Jfchat he was engaged in trial work and requested an extension. The court granted appellant thirty days to file the opening brief. In spite of frequent requests from the clerk's office, the ...
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Plaintiff commenced an action against defendants for damages to a bridge, and from the judgment in favor of defendants this appeal is taken. For many years prior to October 27, 1936, the date of the accident here in question, the state had maintained a wrought iron, through truss type bridge over the Sacramento River at Red Bluff, as part of its highway system. The bridge consisted of five 153 ...
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This is an appeal by plaintiff from an order of the Superior Court of Santa Barbara County striking from the records and files of the action a “Notice and Request for Transcript” filed therein by such plaintiff in connection with his appeal from an order of dismissal made in said action. There is no dispute concerning the factual situation with which we are here confronted. This action was in...
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Defendant, having been convicted on two counts of grand theft by the court without a jury, takes this appeal from the judgment and from the order denying motion for a new trial. As grounds for reversal, he urges (1) that the evidence is insufficient to support the judgment and (2) that the court erred in overruling certain objections to questions propounded to appellant upon his cross-examinati...
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This is an appeal by defendants from a judgment entered in consolidated actions foreclosing mechanics’ liens. Defendants Woods were the owners of a portion of a thirteen-acre tract upon which an oil well had been partially drilled. Defendants Woods and defendants Capser were the owners in common of the remaining portion of said thirteen- *231 acre tract. Said defendants, as lessors, thereafte...
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This proceeding in mandamus was instituted in the superior court by the plaintiff, Harry A. Ballf, to compel the defendants, Civil Service Commission of San Francisco and the members thereof, to certify his name to the board of supervisors as appointee for the position of 11 General Clerk-Stenographer” in the office of said board. Judgment was entered in his favor, and the defendants appeal. ...
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The state treasurer appeals from a judgment directing the issuance of a peremptory writ of mandate ordering him to pay to plaintiff the sum of $3,167.91 with interest. In the trial court the cause was determined upon the petition of plaintiff and the demurrer of defendant. As disclosed by the petition, the facts are as follows: On April 15, 1934, the plaintiff, a corporation doing business...
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This is a motion by respondent to dismiss the appeal upon the ground that neither a clerk’s nor reporter’s transcript nor engrossed bill of exceptions has been filed in this court, and that the time within which to prepare and file the same has elapsed. The record discloses that judgment was entered in favor of respondent’s assignor February 6, 1934. On September 6, 1939, an order was entered b...
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This is an- appeal from an amended judgment terminating defendants’ interest in and to an oil and gas lease dated February 20, 1933, made by Lizzie H. Glide, lessor, to Edward R. Richter, lessee, and the leasehold interest therein described, the hydrocarbons produced from the leased property, and certain oil well and drilling equipment, and also giving plaintiff judgment for $27,888.32 for oil pr...
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Jane Alice Carlon, the wife of Timothy IT. Carlon, an incompetent person, has appealed from an order of the probate court of Merced County, authorizing the leasing of real property and the sale of personal property belonging to his estate, incident to an order to compromise a purported claim under the provisions of section 1530a of the Probate Code. Mr. Carlon is an old man possessed of re...
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The respondent having filed his motion to dismiss the appeal in the above-entitled matter, supported by a certificate of the clerk of the superior court setting forth the facts required by rule VI of this court, and it appearing that all of the grounds stated in the motion are supported by the said certificate and by the authorities cited, It is ordered that this appeal be, and the same hereby is,...
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The plaintiff appeals from an order setting aside the information wherein Serna was accused of grand theft. Defendant’s motion was made upon the grounds that: (1) Defendant was committed without probable cause; (2) that a public offense had not been charged; and (3) that the transcript of the preliminary trial disclosed at most a series of petty thefts (Pen. Code, sec. 995). Defendant is an ali...
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Defendant appeals from the judgment following his conviction of burglary of the first degree, and also from an order denying his motion for new trial. The only *118 contention on appeal is in respect to the latter, and we will therefore assume that lack of merit in the appeal from the judgment is conceded. On the evening of September 8, 1940, at about the hour of 9:00 o ’clock, Mrs. Carroll h...
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43 Cal.App.2d 70 (1941) ROBERT A. BROWN et al., Respondents, v. STATE PERSONNEL BOARD et al., Appellants. Civ. No. 12734. California Court of Appeals. Second Appellate District, Division Two. February 17, 1941. Earl Warren, Attorney-General, and Bayard Rhone, Deputy Attorney-General, for Appellants. Robert W. Kenny, Morris E. Cohn and Howland & Prindle for Respondents. MOORE, P. J. It ...
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From two judgments of conviction of gránd larcen3r, after former convictions of felonies, and from an order denying his motion for a new trial, defendant appeals. As grounds for reversal he contends: (1) that the proof was insufficient to establish his identity as the perpetrator of the crimes; (2) that the court erred in receiving certain testimony descriptive of firearms used by appellant in th...
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Plaintiff appeals from a judgment after trial of a plea of res judicata to counts 3 and 4 of the amended complaint and a dismissal of counts 1 and 2 on plaintiff’s motion. In the present action plaintiff demands damages for a breach of contract to pay rentals in the sum of $1800 on lands of plaintiff and for $500 which plaintiff “was compelled to expend for the cultiv...
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Petitioner has filed two separate proceedings to annul two separate awards of the Industrial Accident Commission against petitioner, the insurance carrier, for injuries suffered by E. J. Hunter, an employee of the Kettleman North Dome Association. The facts of the two cases and the law involved are so closely related that they should be considered in one opinion to obviate needless repetition. ...
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The facts of this case and the law bearing upon them are sufficiently set forth in State Compensation Ins. Fund v. Industrial Acc. Com., bearing our number Civ. 2591, the opinion being filed herewith (ante, p. 233 [110 Pac. (2d) 510].) We there held that E. J. Hunter, the injured employee was entitled to receive but one total temporary disability award over the same period even though he received ...
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Petitioner appeals from a judgment of the Superior Court of San Francisco denying and dismissing with prejudice his petition for a writ of mandate. By the writ, petitioner seeks to compel the Civil Service Commission to place his name as number one on the list of eligibles for appointment to the position of Superintendent of Agriculture. It appears that petitioner received the highest grade in ...
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This is an appeal by the plaintiff and appellant Shirley Dorothy Fagan, a minor, from a judgment in favor of the defendant and respondent James J. Fagan, Jr., after an order sustaining a general demurrer without leave to amend. *190 The sole question involved on this appeal is whether or not the first amended complaint contained facts sufficient to constitute a cause of action against the def...
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This is an action by Frank Belmont, plaintiff and appellant, against E. F. Milton, defendant and respondent, for advances made, and for damages, under a contract, labeled “Citrus Marketing Agreement’’. The following are the essential parts of said contract, necessary for our consideration here: “This agreement, made this 17 day of August, 1936, and ending the 17 day of August, 1937, between Frank ...
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By this writ of prohibition petitioners seek to restrain the Superior Court of the State of California, in and for the County of Calaveras, from taking any proceedings in an action numbered therein as No. 2826, and now pending in said court. From the pleadings and exhibits before us it appears that in 1939, petitioners herein, with the exception of Bank of *182 America, together with L. A. Mo...
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Petitioner at all of the times herein referred to was a member of the Police Department of the City of Sacramento and in receipt of a salary fixed by an initiative ordinance adopted by the people of that city. In January, 1932, the City of Sacramento found it necessary, due to the financial and business depression, to drastically cut its expenses, and was faced with the problem of either r...
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— This is an action, originally filed through a guardian ad litem, to set aside a deed by which Henry 0. Boyd had conveyed certain property to J. M. Lancaster. The deed recited a consideration of $10. Among other things, the complaint alleged that at the date of the deed Boyd was of unsound mind and physically and men*162tally incapable of handling his business affairs. In his answer the defendant...
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This case involves the validity of a tax deed. Drake (who is not a party to this suit) was the owner of the land involved herein. In order to secure an obligation to Prendergast (appellant), he conveyed said land by warranty deed with an agreement for reconveyance when the debt was paid. Drake and Prendergast will hereafter occasionally be referred to as the owner and mortgagee respectively. In th...
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We are asked to decide whether a county treasurer's failure formally to strike off and declare sold to the state on the fifth day of annual tax sales otherwise regularly held under L. 1934, c. 27, all property on which no acceptable bid has been received denies the state the right to treat such property as sold to it for the purpose of issuing and assigning tax sale certificates thereon and, subse...
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This is an action by O.S. Stapley Company, a corporation, plaintiff, against F.O. Newby, defendant, to recover the amount plaintiff claims to be due it under an agreement for the purchase and sale of a certain harvester thresher and tractor. Defendant answered admitting the agreement to purchase but alleging that he rescinded the contract for the reason that the property purchased was not in condi...
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This is an action by Artina W. Schwartz, hereinafter called plaintiff, to recover $2,500 from Odin B. Dodd, J. Bolivar Sumter, Ben B. Mathews and Ralph W. Bilby, hereinafter called defendants, for money had and received by defendants for the benefit of plaintiff. The case was tried to the court sitting with a jury, and at the end of plaintiff's case the court instructed a verdict in favor of defen...
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This is an action by John C. Lee and wife against Carre Burney to gain possession of Lot 1, Section 19, Township 3 N., Range 3 E., G. S.R.B. M. located in Maricopa County. They allege that they are the owners of this property in fee *Page 43 simple and that defendant has kept them out of possession thereof without compensation since May 24, 1938, to their damage in the sum of $75 per month for ...
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This is an appeal taken from the order denying a motion to vacate, set aside and quash an alleged or pretended service of summons after a default judgment had been entered. The action was brought by the State Tax Commission against Archie L. Larsen and Lee H. Whitlock, a partnership, as indicated by the caption of the complaint. The *Page 105 return shows a summons was served on Archie L. Larsen,...
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This action was brought against the Metropolitan Life Insurance Company, defendant and appellant, upon what is known as "Form A-1 – Standard Accident Policy." Subject to the provisions and limitations in the policy contained, it insured Alexander F. Dunn, plaintiff and respondent, "against the results of bodily injuries sustained * * * caused *Page 112 directly and independently of all other caus...
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Appellant instituted this action in the district court to recover damages for an alleged breach of warranty against liens and encumbrances contained in a deed to certain real property conveyed to him by respondents. From a judgment of no cause of action this appeal was taken. The evidence reveals that in March, 1929, L.H. Beebe and wife entered into an agreement with Tony Paloni whereby the former...
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The plaintiff in this action was the beneficiary under a policy of insurance written by the defendant, an insurance company, on the 25th day of February, 1921, by the terms of which the defendant insured one Zella Andrew, sister of the plaintiff, "against loss resulting directly, exclusively and independently of all other causes from bodily *Page 122 injury sustained during the life of this polic...
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In Banc. Will contest by Arch Demaris, executor of the last will and testament of Amos Demaris, deceased, against Ida Fuller and another, administrator of the estate of George Demaris, deceased. From a decree for proponents, contestant appeals. AFFIRMED. This is an appeal from an order of the circuit court which, after dismissing a contest of an instrument testamentary in form which was presented ...
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Action by Frederick H. Eley against William Dale Miller to recover damages on account of alleged failure of defendant to convey part of land provided for in contract of sale and deed executed by defendant, wherein the defendant, by answer in the nature of a cross-bill in equity, sought reformation of the contract and deed on ground of mutual mistake. From a decree *Page 81 reforming the deed so a...
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Plaintiff Shnier purchased four vacant lots in Oklahoma City at the 1939 tax resale. While the record does not disclose when the property was sold at original sale, the briefs disclose that it was sold for the 1935 delinquent taxes, and we assume it was sold at the November, 1936, delinquent tax sale. The property was not sold at the November delinquent tax sales held in 1937 and in 1938. At the t...
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The parties have filed herein a stipulation to the effect that the same questions are involved here as in cause No. 30000, Shnier v. Vahlberg et al., decided by this court February 18, 1941, 188 Okla. 471, 110 P.2d 593, and that the opinion therein should govern the disposition of this case. Such prior opinion is therefore accepted as controlling herein and the syllabus thereof is adopted as the s...
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Plaintiff in error, a full-blood member of the Osage Tribe of Indians, commenced this action as plaintiff on September 28, 1936, against her former guardian and the surety on said guardian's bond, appearing herein as defendants in error. In her petition she complained of allegedly unlawful disbursements by Duncan, said guardian, of more than $11,000 of her allegedly restricted funds without the au...
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The plaintiff filed an action on an open account for goods sold and delivered to E.A. Reed, defendant. Reed answered and defended on the theory that the promise to pay the account was an oral promise to pay the debt of one Moore for goods sold to Moore. A trial to the court without a jury resulted in a judgment for the plaintiff. Defendant appeals and presents two propositions: (1) Error of the co...
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This is an original proceeding in this court brought by Mason Lumber Company, hereinafter referred to as petitioner, and its insurance carrier, to obtain a review of an award made by the State Industrial Commission in favor of Robert Wesley Andruss, hereinafter referred to as respondent. The essential facts are not in dispute. The petitioner was engaged in the operation of two lumber yards. The re...
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This is an appeal from an order and judgment of the trial court recalling an execution that had been issued and placed in the hands of the sheriff, commanding him to levy upon property of C. L. McMahan, Inc. The purpose of said proceeding was to satisfy a balance due on a judgment in favor of John Richardson and against Frank Marrs et al., including the said C. L. McMahan, Inc., and a number of in...
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This is an action in mandamus commenced in district court by the defendants in error as owners of certain sewer improvement warrants issued by the city of Shawnee, to compel the local county treasurer to deliver to them certain money then in his hands representing the delinquent statutory interest due on said warrants and allegedly collected at a county resale of the particular realty for delinque...
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This action was instituted by plaintiff in error, hereinafter referred to as plaintiff, against the defendant in error, hereinafter referred to as defendant, to recover damages for personal injuries alleged to have been sustained as the result of *Page 451 negligence of the defendant in the operation of an automobile. Trial was had to a jury and resulted in a verdict in favor of the defendant. Mo...
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Plaintiff Starritt brought this action against defendants to recover possession of certain real estate. Defendants answered by general denial, and at the trial contended, and offered evidence tending to prove, that plaintiff held the legal title as trustee for defendants. From a verdict and judgment against them, defendants appeal. 1. The first contention of defendants is that the trial court erre...
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The defendant was charged in the common pleas court of Oklahoma county with the offense of operating a slot machine, jury was waived, the defendant was tried, convicted, and sentenced to pay a fine of $50 and costs, and has appealed to this court. The information, omitting the formal parts, filed against the defendant is as follows: "On the 20th day of June, A.D. 1939, in Oklahoma County, State of...
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Defendant, Beulah Ware, was charged with the crime of murder in Oklahoma county on the 9th day of May, 1938; was tried, convicted of manslaughter in the first degree and sentenced to serve a term of 18 years in the penitentiary, and has appealed. This charge arose from the killing of Elsie Taylor, a negro woman, by the defendant, Beulah Ware, in Oklahoma City, Oklahoma county, on the 9th day of Ma...
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The defendant, J. C. Evans, was charged by information in the county court of McCurtain county, on November 23, 1938, with the unlawful transportation of whisky; was tried, convicted, and sentenced to serve a term of 90 days in the county jail and to pay a fine of $250, from which judgment and sentence he appeals to this court. The only assignment of error made by the defendant is that the evidenc...
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1 Reported in 110 P.2d 625. This action was brought seeking an injunction to prevent the defendant from diverting waters from what is alleged to be a watercourse. To the *Page 558 amended complaint, which will be referred to as the complaint, a demurrer was interposed, based upon a number of grounds, one of which was that the plaintiffs had no capacity to sue. After the action had been instituted...
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1 Reported in 110 P.2d 627. This action was instituted under the declaratory judgment act, Rem. Rev. Stat. (Sup.), §§ 784-1 to 784-17 [P.C. §§ 8108-21 to 8108-37], inclusive (Laws of 1935, chapter 113, p. 305, as amended by Laws of 1937, chapter 14, p. 39), to obtain an adjudication of the validity and effect of Laws of 1921, chapter 50, p. 156, as amended by Laws of 1937, chapter 220, p. 1092 (Re...
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1 Reported in 110 P.2d 636. This action was instituted by the prosecuting attorney of Pierce county to recover upon a bond which had been given pursuant to a judgment obtained in a prior abatement proceeding based upon a violation of the Washington state liquor act. Defendants demurred to the complaint, and, upon the overruling of the demurrer, elected to stand thereon. Judgment was entered for pl...
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1 Reported in 110 P.2d 641. This action was brought to recover for personal injuries sustained by plaintiff while assisting in sawing wood with a buzz saw on the premises of defendants. Trial of the cause to a jury resulted in a verdict *Page 605 in favor of the plaintiff. From the judgment entered, motions for judgment notwithstanding the verdict and for new trial having been denied, the defenda...
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(dissenting) — For the reasons stated in the Departmental opinion heretofore filed in this case, I dissent from the conclusion reached by the majority. In my opinion, the order should be reversed. Millard, Blake, and Driver, JJ., concur with Beals, J. ...
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THE Driscoll Construction Company, defendant in error here, plaintiff below, brought this action to recover from plaintiff in error, defendant below, a refund of tax paid on gasoline used and consumed by it in state highway construction. General and special demurrers to the complaint were interposed, both of which were overruled. Election was made to stand on the demurrers, and judgment was accord...
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THIS is a proceeding under the Workmen's Compensation Act, in which the district court set aside an award of the Industrial Commission in favor of Harry Noble, plaintiff in error, to whom we hereinafter refer as claimant, and entered judgment in favor of The Rocky Mountain Fuel Company, defendant in error, hereinafter designated as employer. Claimant is here on writ of error to review this judgmen...
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This is an appeal by the plaintiff from a judgment entered upon an order sustaining the defendants’ demurrer to the complaint with leave to amend, and the plaintiff’s election to stand upon the complaint as filed. *518 The plaintiff sued to recover the balance due on a promissory note for $7,600, dated January 1, 1931, and due in three years. The note was secured by a deed of trus...
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A petition for hearing in this case was granted to the end that further consideration be given to the contentions of the plaintiffs. On such consideration, we agree with the disposition of the appeal by the District Court of Appeal of the Fourth Appellate District and adopt, with a slight deletion, the opinion of that court, prepared *523 by Presiding Justice Barnard, as the opinio...
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17 Cal.2d 506 (1941) DAVID E. HUME, Petitioner, v. SUPERIOR COURT OF LOS ANGELES COUNTY et al., Respondents. L. A. No. 17610. Supreme Court of California. In Bank. February 27, 1941. David E. Hume, in pro. per., and Wyman G. Reynolds and Bruce W. Teagarden for Petitioner. Earl Warren, Attorney-General, Herbert E. Weinig, Lewis Drucker, Deputies Attorney-General, J. H. O'Connor, County Counse...
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This is a petition to review an award of the Industrial Accident Commission. The facts are brief. Fred Zurbuchen, the applicant, was employed as a laborer on the ranch of John W. Flint. On the day in question Mr. Zurbuchen, who was operating a tractor, went to the ranch house to get some planks to extricate the tractor from some soft ground. He then started back to the tractor, riding in t...
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This is an appeal from a judgment against appellant Southern Counties Thrift Co., a corporation, and in favor of respondent C. W. Rairdon. Respondent Rairdon, on January 10, 1941, filed a motion to dismiss the appeal under rule I, section 4, of the Rules for the Supreme Court and District Courts of Appeal, for the reason that appellant failed to file its opening brief within the time prescribed in...
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Plaintiff sued in equity for a judgment quieting his title to a leasehold interest in certain farming land, and admitting him to possession of the premises. The defendants had judgment. The issue on the appeal is whether the plaintiff is estopped from claiming the right to possession as a tenant because of his representations to defendants that he held as a tenant under an oral lease from the defe...
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The petitioner, insurance carrier for the city of Beverly Hills, seeks to annul an award made by respondent commission on behalf of John W. Ruffner, who had performed services for the city as a bill collector and as an inspector of signs. Ruffner was driving an automobile owned by the city to the city’s garage at approximately 4:45 P. M. on May 3, 1940. His working hours were from 8 A. M. to 5 P. ...
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Appellant, charged by information with ten counts of grand theft, with a prior conviction of grand theft and of issuing checks without sufficient funds, was found guilty on each of the ten counts by separate verdicts of the jury returned after trial. Appellant admitted the prior conviction, but appeals from the present judgments and the order denying his motion for a new trial. The record revea...
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The defendant was convicted of the crime of bigamy upon an information charging a marriage on October 4, 1938, he then “having a wife living”. The state proved, and the defendant admitted, that he had married three separate women—one on July 30, 1936, another on July 16, 1938, and another on October 4, 1938. The first and third marriages were contracted under assumed names. Upon arraignment the d...
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The defendants and eross-complainants have appealed from a judgment quieting title in plaintiff and cross-defendant to all the water flowing from springs located on its property through natural channels on the same land. The defendants were restrained from interfering with the flow of water in those channels and damages in the sum of $150 were assessed against them for diverting the water by me...
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Plaintiff sued for damages for personal injuries and had a verdict for $3,000. Three issues were submitted to the jury—the negligence of defendant, the contributory negligence of plaintiff, and the amount of damage suffered by plaintiff. The defendant concedes that the evidence was conflicting on the first and third issues. Substantial evidence was offered to sustain the verdict upon both of thos...
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This action was instituted to recover damages on account of personal injuries sustained by plaintiff in an automobile accident. At the time of the accident, which occurred between 5:30 and 6 o ’clock on the evening of January 14, 1938, plaintiff, a man 75 years of age, was on his way home from the business section of the city of Alhambra, carrying some purchases. When he arrived at the intersecti...
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This is an action by J. W. Gal-breath and L. J. Wyseur, plaintiffs and appellants, to quiet title to certain real property. The complaint was in the usual form of a quiet title action. The answer and cross-complaint of defendants and respondents denied the allegations of the complaint, alleged that on March 11, 1938, the tax collector of Kern County sold an undivided one-half interest in the real ...
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Plaintiff brought this action to quiet his title to two parcels of land in Tulare County. He had judgment and this appeal followed. Defendants have attempted to appeal from the order denying their motion for new trial which is not an appealable order. (See. 963, Code Civ. Proc.) Plaintiff deraigns his title through tax deeds. No question is raised as to their validity, but only as to the quanti...
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This is an appeal from a decree, entered upon the settling of a final account, by which the probate court distributed to respondent all property remaining in decedent’s estate. It is filed by two brothers, Jacob M. and Edwin M. Frazer, the only heirs at law of the decedent, C. 0. Frazer, also known as Charles 0. Frazer. Two days before his death, Charles had signed his will in the presence of his ...
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Appellant was convicted of a violation of section 501 of the Vehicle Code (driving a vehicle while • under the influence of intoxicating liquor and causing bodily harm to another), and now prosecutes this appeal. The facts are not in dispute. As appellant was driving his automobile around a curve in the highway he crossed the center of the highway, marked by a white line, over on to the left si...
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This action was brought to recover damages for personal injuries received by respondent while in the employ of defendant. A trial was had before the court. Findings were made in favor of respondent, and judgment in the sum of $15,525 was entered. The appeal is from the judgment. The complaint sets forth two causes of action. The first is based upon ordinary negligence, while the second is ...
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This litigation grew out of a collision which occurred about 11 o’clock on the night of May 11, 1939, between a Packard coupe, being driven by plaintiff, in an easterly direction, on the Farmington Road, and a Chevrolet truck, operated by defendant, in a southerly direction, on the Jack Tone Road at the intersection of these two thoroughfares in San Joaquin County. The Farmington Road is a thro...
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Thomas Naughton, a member of the San Francisco Police Department for twenty-nine years, died June 7, 1937. At the time of his death he held the rank of sergeant. He was survived by his wife, Hattie Naughton, to whom he had been married nearly thirty years. She filed application with the Retirement Board of San Francisco, City Employees' Retirement System, for a pension; and after hearing the evide...
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In the case before us, the probate court made an order admitting the will of the deceased to probate, but revoking it as to his surviving spouse, respondent herein. Section 70 of the Probate Code reads as follows: ’“If a person marries after making a will, and the spouse survives the maker, the will is revoked as to the spouse, unless provision has been made for the spouse by marriage contract,...
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An appeal is taken from a decree determining heirship under section 1080 of the Probate Code. Wilma Sarles McCollum died testate February 22, 1939. The portions of her will pertinent to this inquiry read: ‘1 FIRST: Provided JANE SARLES, my Grandmother by reason of the adoption by her and WILLIAM SARLES, her husband, the latter now deceased, of my Mother, MYRTLE SARLES Mc-COLLUM, now deceased, sur...
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43 Cal.App.2d 280 (1941) B. L. BLACKMORE et al., Respondents, v. MERVYN BRENNAN et al., Appellants. Civ. No. 6467. California Court of Appeals. Third Appellate District. March 1, 1941. Honey & Mayall for Appellants. Gumpert & Mazzera and C. H. Hogan for Respondents. THOMPSON, J. The defendants have appealed from a judgment of $3,500 damages for the death of Harold Blackmore, son of...
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This appeal is presented to us upon the judgment roll, without either bill of exceptions or transcript. Hence we cannot consider, in deciding it, the references made by appellant to the testimony or to a “stipulation” of defendant, or to other asserted facts of the case not appearing in the findings or from the admissions of the pleadings. Thus the frequently mentioned fact, if it be a fact, that ...
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The opinion of the court was delivered by This was an action to recover an alleged overpayment of an attorney’s fee. The defendant, prevailed, and the plaintiffs appeal. The case has been here before, on appeal from an order overruling defendant’s demurrer to the petition, the judgment being affirmed. In view of the recital contained in the opinion at that time (Kirwin v. McIntosh, 151 Kan. 289, 9...
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The opinion of the court was delivered by This is an action to abate and enjoin the maintenance of a nuisance under the intoxicating-liquor law. The sole appellant is the owner of the property in question. His contention is that there was no evidence under which a judgment in personam could lawfully be entered against him and made a lien upon the property. On November 3, 1939, a petition was filed...
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From the record now on file and after argument of counsel it is clear that the action sought to be maintained herein by the plaintiff-appellant is essentially one to challenge the validity of the organization of School District No. 97 of Shawnee county, and to question its boundaries, which is the sort of lawsuit which this plaintiff has no right to maintain under many precedents of this court. Se...
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The opinion of the court was delivered by The trial court sustained a motion to strike certain allegations, from the answer of defendants. This appeal is from the order and ruling so made. Lizzie Bockes, a resident of Brown county, died April 19, 1931. She was an incompetent and at the time of her death William Whistler was her guardian. Whistler filed a final settlement as guardian, which was app...
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The opinion of the court was delivered by This was a workmen’s compensation case. The appeal is from the judgment of the district court allowing additional compensation to claimant on his petition for review and modification of an award previously made. Appellant contends the petition for review and modification was not filed or considered within the time authorized by statute. The pertinent fact...
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The opinion of the court was delivered by Appellee, the city of Osawatomie, seeks to recover from appellant, Miami county, for maintenance of streets which it alleges form connecting links in the system of county highways. Recovery is sought under the provisions of G. S. 1935, 68-506e. The case is here on appeal by the county from an order of the district court overruling its demurrer to the petit...
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The opinion of the court was delivered by This is an appeal from a judgment sustaining a demurrer to a petition in which plaintiff sought a recovery of damages for’malpractice. The trial court’s ruling was based on the two years’ limitation allowed by statute within which an action of that character, sounding in tort, can be maintained. (G. S. 1935, 60-306, 3d clause.) In her petition, which was f...
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*338The opinion of the court was delivered by This was a criminal prosecution for the killing of a man and his wife on a public highway a short distance east of Lawrence, and it is the second appearance of the case in this court. Defendant has again been convicted of manslaughter in the fourth degree and sentenced accordingly. The evidence was substantially the same in the second trial as in the f...
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The opinion of the court was delivered by This was a quiet-title suit. Plaintiff prevailed, and one of the defendants appeals. The instant action was filed in Graham county March 28, 1938. Appellant’s principal contention is that a. real-estate foreclosure judgment rendered in 1928 in Saline county, upon which appellee’s title is based, was void for want of jurisdiction. In the Saline county actio...
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The opinion of the court was delivered by This was a motion to vacate and set aside a divorce decree. The motion was overruled and plaintiff appeals. The substance of appellant’s contention is the divorce decree was not obtained in the proper venué, the court was therefore without jurisdiction, and the decree is void. It is conceded, if the judgment *429was void it may be vacated at any time on m...
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The opinion of the court was delivered by This is an appeal from a judgment of the district court which sustained an order of the probate court admitting a will to probate over the objections of the heir at law. The pertinent facts were these: The late Mrs. Olive B. Swisher, of Wichita, a widow whose sole heir was her only brother, William S. McMain, of North Kansas City, Mo., employed the law fi...
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The opinion of the court was delivered by This was an action for damages for personal injuries alleged to have been sustained by the plaintiff when he fell into a hole in the sidewalk in the defendant city. A demurrer to plaintiff’s amended petition was overruled. Defendant appeals. The allegations of the amended petition may be summarized: On the date of plaintiff’s injury there was a hole in th...
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The opinion of the court was delivered by This was an action to specifically enforce a contract for the sale of real estate. The trial court sustained a demurrer to defendant’s answer and cross petition and he appeals. Omitting formal parts and much of the detailed allegations, plaintiff’s petition alleged he was the duly appointed, qualified and acting administrator with the will annexed of Kisar...
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The opinion of the court was delivered by Plaintiff brought this replevin action against the defendants seeking to recover certain property in the hands of defendant J. R. Allen, sheriff of Gray county. The .sheriff held the property under a writ of execution issued on a judgment against defendant R. 0. Allen in favor of The Champlin Refining Company, plaintiff in another action and third defenda...
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The opinion of the court was delivered by This was an action for rents and for forcible de-tainer. Judgment was for plaintiff, and defendants have appealed. On February 28, 1940, plaintiff filed its petition in the county court of Morris county, alleging that in December, 1939, pursuant to G. S. 1935, 79-2701, 79-2702 and 79-2703, plaintiff took possession of three described lots in the city of Co...
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The opinion of the court was delivered by This was an action to recover the purchase price of personal property sold by plaintiff to defendant. The cause was tried by a jury, which found in favor of plaintiff and answered special questions submitted. The trial court rendered judgment in favor of plaintiff and defendant appeals, specifying errors which *311are presented under five general headings ...
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The opinion of the court was delivered by This was an action for damages for injuries alleged to have been incurred when an automobile being driven by plaintiff collided with one being driven by defendant. Judgment was for the plaintiff. Defendant appeals. The automobile accident out of which this action arose occurred October 28, 1936, at about 7:20 p. m. on U. S. highway 160 in Cowley county, a...
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The opinion of the court was delivered by The defendant corporation is in a receivership (State, ex rel., v. Wheat Farming Co., 137 Kan. 697, 22 P. 2d 1093), *283the duration of which has been protracted owing to litigation in the federal courts (Lillard v. Lonergan, 72 F. 2d 865; id., 293 U. S. 615, 79 L. Ed. 704), and by financial difficulties and other complications of its business affairs, an...
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The opinion of the court was delivered by This was an action to recover damages growing out of a breach of a written lease. The plaintiff recovered, and defendant appeals. At the trial the defendant by appropriate demurrers and motions raised the questions now presented: (1) That the lease was void on its face for want of consideration and lack of mutuality. (2) That the lease was void and unenfor...
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The opinion of the court was delivered by Defendant was convicted of the crime of statutory rape, and appeals, the only question presented being whether as the result of his preliminary hearing he was properly bound over for trial in the district court. On December 13, 1939, one llene Smith, a person under eighteen years, made her complaint before Harry E. Kean, a justice of the peace of Greeley c...
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The opinion of the court was delivered by This was an action by the owners of an 80-acre tract of land to recover damages from the defendants, Shell Petroleum Corporation and McPherson Oil & Development Company, for breach of the implied covenant in an oil and gas lease to explore, develop and produce oil from each of two alleged oil-bearing sands between certain dates. A general demurrer to plai...
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Walter F. Iles, about 43 years of age, hereinafter called the workman, was injured on August 16, 1937, while in the employ of Big Horn County, this state, by being struck in the small of the back by a heavy road bulldozer of a caterpillar, weighing from 3000 to 3500 pounds, which dropped some 16 inches while the employee was in a stooped position. He had what Dr. Parisi describes as a comminuted f...
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The prosecuting attorney of Twin Falls county instituted this action against Catherine M. Braun as owner of the premises, and E.L. Rogers as operator, to abate under 1939 Sess. Laws, chap. 222, as a public nuisance a place where alcoholic liquors were illegally kept and sold. Upon respondents' default following due and legal service, overruling of respondents' respective and separate demurrers and...
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This appeal is from a judgment rendered after respondent's general demurrer to appellant's complaint was sustained and appellant refused to plead further. Appellant sought recovery upon policies of fire insurance issued by respondents, in the proportion that the face of the policy of each respondent bore to an entire loss sustained by appellant by reason of the destruction by burning of a quantity...
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1 Reported in 110 P.2d 845. March 15, 1935, F.L. Denman and wife entered into an executory contract with Garner Vaughn, a married man, to sell to the latter real property in Pierce county owned by the former. The purchasers paid fifty dollars at the time of the execution of the contract, on which date they entered into possession of the property, and obligated themselves to pay the remainder of th...
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1 Reported in 110 P.2d 847. In 1925, Emma R. Honn died testate at Redding, California, leaving a considerable estate there. By her will, she made a number of individual bequests, among which was one of three thousand dollars "to my nephew George W. Gregory of Spokane, Washington, . . ." She named her nephew, George W. Gregory ofSeattle, Washington, as executor and residuary legatee of her will. Sh...
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1 Reported in 110 P.2d 851. Two actions were brought in the superior court to determine whether certain personal property owned and held by defendant railroad company should be assessed as "operating property" or as "non-operating property," as those two descriptive terms are defined by chapter 123, Laws of 1935, p. 356 (Rem. Rev. Stat. (Sup.), § 11156-1 [P.C. § 7088-31] et seq.), which provides a...
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1 Reported in 110 P.2d 857. This action was brought by Anderson Buick Company, a corporation, against F. Miller Cook, Arthur M. Hare, Theodore S. Turner and David A. Maurier, doing business as Hare, Turner Maurier, and William B. Severyns, as sheriff of King county, to recover judgment on a note and foreclose a chattel mortgage, which it is claimed was given to secure the note. Defendants Hare, T...
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1 Reported in 110 P.2d 863. Plaintiffs herein, B.M. and Ethyle T. Oyster, sued defendants, Mr. and Mrs. Clifford Dye, for damages suffered by plaintiffs as the result of personal injuries sustained in an automobile collision between plaintiff's car, driven by Mr. Oyster, and a truck owned and operated by defendants, driven by one William Fabey. June 23, 1938, plaintiffs, accompanied by their guest...
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1 Reported in 110 P.2d 867. This is an appeal by Wilmon Tucker, as administrator with the will annexed of the estate of Sarah E. Smith, deceased, from an order of the superior court for Yakima county, Honorable Arthur McGuire, Judge, sitting in probate, authorizing and *Page 719 directing Guaranty Trust Company, as administrator de bonis non with the will annexed of the estate of Reese B. Brown, ...
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1 Reported in 110 P.2d 872. Prior to August 4, 1938, the Federal public works administration authorized a grant of funds to school district No. 118 of Pacific county for a grade school building project. On that date, at a mass meeting called by the directors of the district, a recommendation was made that this project be abandoned and that an application be made for a new Federal grant to aid in t...
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1 Reported in 110 P.2d 877. This case involves unemployment compensation claimed by employees of the St. Paul and Tacoma Lumber Company. The company is engaged in the large scale production of lumber and timber *Page 583 products, with its manufacturing plant located in the city of Tacoma. The plant included a sawmill, a shingle mill, and private booming and sorting grounds. It had two logging ca...
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1 Reported in 110 P.2d 887. Plaintiff brought this action to recover damages for personal injuries sustained while riding in an automobile owned and operated by the defendant. The complaint contained the following allegations relative to joint adventure: "That on or about the 10th day of September, 1936, plaintiff and the defendant entered into an agreement constituting a joint venture whereby the...
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This is an action brought by defendant in error, Hester M. Stark, for specific performance of a contract for separate maintenance against her husband, H.O. Stark, plaintiff in error. This is the second time the contract which is the subject of this controversy has been before this court, the former suit having resulted in the decision of Stark v. Stark,185 Okla. 348, 91 P.2d 1064, and insofar as t...
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Pawnee county, acting by and through the board of county commissioners, instituted this suit in the district court of Osage county against the board of county commissioners of Osage county, wherein plaintiff sought recovery of $28,687.56 from said county, the same being one-half of the cost of construction of a bridge across the Arkansas river, which river constituted the boundary line between sai...
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This is an appeal by the Attorney General from an order of the Oklahoma Tax Commission allowing to E.W. Marland a refund of allegedly excessive income tax payments made by him for the years 1919, 1920, and 1922, under the provisions of article 12, chapter 66, Session Laws 1937 (Senate Bill No. 304), authorizing refunds of income taxes erroneously paid prior to the year 1931. The Tax Commission all...
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In an automobile collision action for personal injuries the plaintiff recovered a verdict and judgment. The defendant appeals. The first contention is that the trial court erred in refusing to declare a mistrial because of questions asked a certain juror on the voir dire examination. It is contended that the questions informed the jury that the defendant carried liability insurance. When the attor...
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On June 27, 1937, the city of Pryor, a municipal corporation, commenced this action to enjoin the defendants from operating certain gasoline pumps in the parkway or parking in front of their place of business on the main street in the city of Pryor, Okla. The case was tried upon an agreed stipulation of facts, and after entering into said stipulation it is stated therein *Page 484 that the allega...
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This is an action in the nature of quo warranto to try title to the office of mayor of the city of Clinton. Plaintiff below was the legally qualified and acting mayor of said city. Under the charter his term would expire April 2, 1942. On July 18, 1940, he submitted his written resignation to the city commissioners conditioned only that it become effective August 15, 1940. The resignation was acce...
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This is an action for damages for alleged breach of contract for failure of the defendant to convey to plaintiffs certain royalty interests. The controversy involves three mineral deeds, the first of which was dated August 12, 1936, conveying to plaintiffs an undivided 3,500 square feet out of the 1/8 royalty interest in the production of oil, gas, and other minerals from certain described lands i...
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This action was brought by the plaintiff, Grace Allen Jones, against the defendants, Jesse Allen and Lizzie Allen, for the recovery of certain land in Creek county allotted to her father, Abraham Allen, for rents, and for the cancellation of certain deeds alleged to have been procured by the defendants, who were the father and mother of Abraham Allen, by fraud and undue influence, and without cons...
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This is an appeal from an order of the superior court of Creek county, Bristow division, approving in all things the final account of defendant, guardian of Wilson Clinton, an incompetent, said order also providing that the county court of Creek county should enter a like order. Defendant was appointed guardian August 3, 1936, and served until January 31, 1938, when his resignation was accepted by...
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The defendant, J. P. Stone, was by information charged on May 7, 1938, in the district court of Oklahoma county, Okla., with the offense of manslaughter in the first degree, was tried, convicted of manslaughter in the second degree, sentenced to serve two years in the State Penitentiary, and has appealed to this court. Judgment and sentence was rendered on April 18, 1939; and on the same day a mot...
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The petitioners, John Clement and; LeRoy Clement, now confined in the State Penitentiary, mailed to the clerk of this court their verified petitions, each alleging that he is unlawfully imprisoned and restrained of his liberty by the warden of the State Penitentiary at McAlester. It appears that the petitions were filed on February 6,1941. The Attorney General has filed a demurrer to each pet...
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Defendant Juanita Dean was charged in the court of common pleas of Oklahoma county with the unlawful possession of intoxicating liquor, was tried before the court and found guilty. Her punishment was assessed at a fine of $50 and imprisonment in the county jail for 30 days, and she has appealed. This charge was filed by reason of a search of defendant's home at 712 West Grand, Oklahoma City, Oklah...
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This is an original proceeding in habeas corpus in which the petitioner seeks his release from the State Reformatory at Granite. The verified petition filed herein alleges in substance: "That on the 15th day of August, 1938, the petitioner stood charged by information in the District Court of Creek County with the offense of second degree burglary in case No. 3963. That the petitioner was seventee...
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The defendant Frank Stout was on the 15th day of April, 1940, convicted in the court of common pleas of Oklahoma county of the crime of illegal *253 possession of intoxicating liquor, and his punishment assessed at a fine of $50 and 30 days’ imprisonment in the county jail, from which judgment and sentence he appealed on the 30th day of August, 1940. Since this appeal was taken, defendant, Fr...
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The defendant, Florence Gill, was by information charged in the county court of Comanche county, Okla., on April 8, 1939, with unlawful possession of intoxicating liquor, waived a jury, was tried, convicted, and sentenced to serve a term of 30 days in the county jail and to pay a fine of $50 and costs, and has appealed to this court. The defendant contends that the search warrant was insufficient ...
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Defendants Wyatt Hagan and Esther Bender were on the 9th day of April, 1940, convicted in the district court of Ellis county of the crime of open and notorious adultery, and their punishment was assessed at *263 a fine of $500 for defendant Wyatt Hagan and a fine of $200 for defendant Esther Bender, from which judgment and sentence they appealed to this court on the 17th day of July, 1940. Si...
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The defendant, Willie Jackson, with one Jack Mann, was jointly charged in the district court of Oklahoma county with the crime of conducting a gambling game, was tried, convicted, his punishment left to the court, who thereupon sentenced him to serve 18 months in the penitentiary, and he has appealed to this court. *Page 259 The defendant makes two assignments of error, to wit: (1) That the court...
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Action by the Equitable Life Assurance Society of the United States against Selina J. Boothe and others to recover on an undertaking the value of the use and occupation of realty. From a judgment in favor of the plaintiff, the defendants appeal. AFFIRMED. REHEARING DENIED. On May 17, 1938, the plaintiff obtained a decree in the Circuit Court for Multnomah County foreclosing a mortgage on real prop...
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Suit by Minor S. Allen and others against the Southern Pacific Company and the Brotherhood of Railroad Trainmen, A.F. Whitney, its President, R.J. Brooks, Chairman General Grievance Committee, *Page 292 and others, for a declaratory decree concerning seniority rights of trainmen employed on the Portland Division and on the Shasta Division of defendant Southern Pacific Company. From a decree for p...
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Proceeding in the matter of the estate of Robert John Vilas, deceased, a resident of the state of Washington at the time of his death, wherein Albert Harala was appointed administrator of the estate of the deceased upon petition by Bonnie Simms in propria persona and by Gerda Gurdane, her guardian ad litem. Charles J. Vilas and Annie E. Vilas filed a petition to have order appointing Albert Harala...
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When the state confers judicial powers upon an individual, it confers them with full immunity from private suits, 2 Cooley on Torts (4th Ed.) 426, § 312. *144In the case of injury to an individual resulting from the exercise of such powers, it is said that the law will rather suffer a private mischief than a public inconvenience. Expounding the doctrine, Judge Cooley says {ibid.): “In effect, the...
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Theodora L. Hayward, a resident of Paonia, Delta County, Colorado, died testate August 14, 1939. Her will was admitted to probate in said Delta County on September 18, 1939, and letters testamentary *Page 53 were issued to J. Harry Newton, the named executor thereof. Thereafter said executor applied to the Superior Court of Mohave County, Arizona, for ancillary letters and in his application repr...
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The state of Arizona, on the relation of D.C. O'Neil, Thad M. Moore and C. Warren Peterson, as members of and constituting the state tax commission of Arizona, hereinafter called petitioners, filed an original proceeding in this court asking for a writ prohibiting the Honorable William G. Hall, as judge of the superior court of Pima county from entertaining or considering a proceeding brought in t...
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The city of East Helena advertised for bids on one unit of fire fighting equipment. Subsequent thereto a bid was accepted *Page 465 and the contract let. Appellant, a taxpayer, averring the city had accepted a bid higher than the lowest responsible one, brought this action to enjoin the city council from proceeding with the execution of the contract. This appeal is from an order of the district c...
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This appeal is from a judgment for plaintiff in an action involving certain claims for wages. In the view we take of the case, no further discussion of the facts out of which the case arose is necessary. After trial, findings of fact and conclusions of law were entered on January 16, 1939. It was not until October 18, 1939, nine months later, that plaintiff presented a proposed judgment. It was pr...
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Defendant was accused by complaint in bastardy filed September 24, 1938, of being the father of a then unborn child which, if born alive, would be a bastard. Before trial and on February 6, 1939, the child was born alive. Trial resulted in a verdict of guilty and the court, by subsequent proceedings, fixed the amount which defendant should be required to pay *Page 461 to the mother toward the mai...
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Relator was convicted of the crime of embezzlement as defined in section 11318, Revised Codes, and sentenced by the respondent court to serve a term of six years in the state penitentiary. He[1] appealed from the judgment. He made application to respondent court for an order requiring Ravalli county to pay the court reporter for a copy of the transcript of the evidence estimated to cost $250. His...
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This is an action wherein plaintiff seeks to recover from the defendant one-fourth of the wheat raised on certain state lands during the year 1938, or the value thereof. Trial was had before the court sitting without a jury, and judgment was entered for the defendant. The facts are as follows: *Page 379 In 1926 the plaintiff entered into a contract with the State Board of Land Commissioners for t...
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delivered the opinion of the court. Reversal is herein sought of a district court judgment for damages based upon a subcontractor’s alleged violation of its contract to supply cast stone of given specifications to Teats, the principal contractor, plaintiff below and defendant in error here. Teats sued the subcontractor, the plaintiff in error Hosek Manufacturing-. Overland Foundry Company. The ...
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PLAINTIFF in error, defendant below, was found guilty of assault for shooting a fifteen year old boy and sentenced to six months in jail. Reversal is sought on a writ of error. Upon our own motion we dismissed the case for failure to prosecute, but subsequently, on motion of plaintiff in error, it was reinstated and and we now elect to determine the matter as submitted on typewritten briefs, witho...
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THIS controversy relates to the validity of an assumption clause contained in a deed of conveyance of real property, reading as follows: "One certain deed of trust dated June 25, 1926, to secure to the Denver Joint Stock Land Bank, the payment of a promissory note, in the sum of $8,000 bearing even date therewith, the balance on which note the party of the second part [plaintiff in error] hereby a...
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This is an action for injunction and damages based on the defendant’s alleged past and threatened future invasion of certain easements owned by the plaintiff. The case was tried by the court sitting without a jury, and from a judgment entered for the defendant the plaintiff prosecutes this appeal. The parties are competing vendors of water service in an unincorporated area situated between the cit...
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17 Cal.2d 534 (1941) WILLIAM L. WEBSTER, Appellant, v. BOARD OF DENTAL EXAMINERS OF CALIFORNIA, Respondent. L. A. No. 17634. Supreme Court of California. In Bank. March 6, 1941. Charles E. Burch, Jr., and Irwin R. Hazen for Appellant. Robert W. Kenny and Morris E. Cohn, as Amici Curiae, on behalf of Appellant. *536 H. E. Lindersmith for Respondent. Anthony J. Kennedy, as Amicus Curiae, on ...
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Appellants herein appeal from an order denying their motion for a new trial made after a jury had found each of them guilty of a criminal conspiracy to commit petty thefts as charged in an indictment accusing appellants and other named defendants of the crime. After the verdict ap *390 pellants applied for probation and the court ordered that proceedings in the case be suspended and granted app...
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The plaintiff has appealed from a judgment awarding the corporate defendant and cross-complainant, which will be referred to as the respondent, the right to its proportionate share of the water distributed by the plaintiff. The appellant was organized under the laws of this state in 1885. Its purposes, as set forth in its articles, are to construct and operate canals; to acquire water rights; and ...
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This is an appeal by the People of the State of California from a judgment under proceedings provided for in Division X, Chapter 7, Article 1 of the Health and Safety Code (Chapter 60, Statutes 1939), in which it was held that the 1939 Buick here involved had been unlawfully used for the purpose of concealing and transporting opium, but the forfeiture of the Buick automobile was denied and releas...
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This is an appeal from an order settling the fourth annual account of the executrix of the estate of the decedent. The decedent left an holographic will. It is very long and need not be set forth at length. Among other provisions it contained the following: “I give, devise and bequeath, to my sister Mrs. Nellie. Kelleher. my House, and Lot. and all improvements, there on. Lot two. Block 4088 on ha...
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From an order directing the receiver to deliver the possession of property, both real and personal, and from an order refusing to vacate the former order, the defendant Perry has appealed. Heretofore H. 0. Harrison and Daisy Harrison, his wife, were the owners of lot 23 of tract 2289 in the city and county of Los Angeles, together with the building standing thereon occupied as a hotel and for cert...
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This is a motion to dismiss the appeal on the ground that a transcript was not filed within the time allowed by law and on the further ground that the transcript which is now on file was not certified and settled as required by law, with the result that there is no record on which any issue presented by the appeal may be determined. The action was one for declaratory relief. Judgment was entered i...
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This is an appeal from an order appointing Georgina E. Forrest executrix of the will of Francis G. Forrest, deceased. The decedent and Georgina E. Forrest intermarried on June 29, 1915. They lived together until April, 1922, at which time Mrs. Forrest filed a suit for divorce. Later both an interlocutory decree of divorce and a final decree were entered in favor of Mrs. Forrest. On December 31, 1...
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This is an appeal from a judgment which was rendered in favor of the defendant Charles Niemann, Jr., individually, and doing business as Hillside Motor Company, in an action which was brought by the plaintiff, Mrs. Hazel Sanderson, to recover damages for injuries to her person. The damages were allegedly sustained as the result of an accident in which were involved an automobile owned' as commu...
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The appellant, charged with murder, pleaded guilty but later moved the court for leave to withdraw that plea. This motion was denied and he was sentenced to death. The sole ground upon which he relies for a reversal of the judgment is that, under the particular circumstances shown, it was an abuse of discretion for the trial judge to deny his motion. The ease is an unusual one. When the appella...
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The appellants, testamentary trustees of the Estate of Mary Belle McLellan, are resisting a judgment entered against them in an action brought by the special administrator of the Estate of Mary Bates McLellan, who was a beneficiary of one of the trusts created by Mrs; McLellan’s will. They were also named as executors and residuary legatees of this will. The controversy concerns the right of th...
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This is an original proceeding for a writ of mandate whereby petitioners seek to compel the respondent to certify to the petitioners that"there is a sufficient unencumbered balance in a fund that may legally be used for the proposed expenditure of the sum of $100,000 for the services of one Purcell, a civil engineer. The municipality seeks by a contract to procure the services of Purcell for a ...
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Plaintiff, afifteen year old girl, was enrolled in the Castlemont High School in Oakland where she took the required course in physical education. On September 29, 1936, she and other members of the class assembled in the gymnasium, changed from street to gymnasium clothes, and received instructions from the teacher to go outdoors into the athletic field to play volley ball. As was their custom...
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Four actions were brought by different plaintiffs to recover income taxes paid under protest. In each action an appeal was taken from the judgment entered for the defendant. These appeals are presented in one record and each involves the question of the constitutionality of section 34 of the California Personal Income Tax Act of 1935 (Stats. 1935, p. 1090 [Deering’s Gen. Laws, 1935 Supp., Act 8...
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In a suit for unlawful detention of real property under section 1161 of the Code of Civil Procedure, the plaintiff recovered judgment against the defendant and cross-complainant for unpaid rent in the sum of $111.80, and for restitution of the property in the event that sum was not paid within five days after notice of the entry of judgment. The rent was not paid. In his cross-complaint the def...
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Appellant, Kenneth H. Brown, and his brother, Dwight W. Brown, were jointly charged with first degree robbery and assault with intent to commit murder. Kenneth was also charged with two prior convictions, which he admitted. Both defendants pleaded not guilty, and, in addition, Kenneth pleaded not guilty by reason of insanity. The jury acquitted Dwight Brown and convicted Kenneth of both offenses ...
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Plaintiffs are the widow and parents of Joseph J. Gallo deceased. They brought this action seeking *341damages for the death of said deceased, which death was alleged to have been caused by the negligence of the defendants. Upon a trial by a jury, plaintiffs recovered judgment in the sum of $10,000. Defendants appeal from said judgment. The death of said deceased occurred on the morning of Decembe...
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In a proceeding to determine heirship, the trial court directed a verdict against appellants and in favor *386of respondents and judgment was entered accordingly. Appellants appeal from said judgment. The deceased was a former lieutenant on the San Francisco police force. He died in 1937 leaving neither wife nor issue. He was originally known as Harry Peter Breig and later changed the spelling of ...
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There are two appeals in this case. Defendants appeal from the judgment entered on the verdict of the jury and plaintiff appeals from an order granting defendants a new trial. Since each side is thus appealing, we will refer throughout this opinion to plaintiff and defendants in order to avoid confusion. The appeal from the order granting a new trial must be first considered, and the appeal fro...
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This is an appeal by defendant Pacific Telephone and Telegraph Company from a judgment in a personal injury action in favor of plaintiff. On the day of the injury, October 29, 1937, appellant, for the purpose of carrying on its business, maintained cables, wires and poles in the city of Lodi. The city of Lodi, a municipal corporation, was then engaged in the business of distributing electr...
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Defendants have appealed from judgments rendered against them in these two actions, consolidated for trial and now considered together on appeal as they present identical issues. Both actions arise out of a collision between a Ford sedan driven by William Cusack and owned by F. C. Ferguson who was riding therein at the time, and a GMC truck driven by-George Nakahara and owned by Harry Naga...
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Plaintiff and appellant filed suit against defendant for damages alleged to have been sustained by plaintiff as a result of the negligent operation by defendant of an automobile which he was driving. As counsel for respondent correctly states: “The sole question before this court is whether or not service can be effected under Sec. 404 of the California Vehicle Code, St. 1935, p. 154, where the de...
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This is an action in equity for the primary purpose of establishing a trust and for an accounting. Plaintiff appeals from a judgment of dismissal entered on sustaining demurrer to the petition. The demurrer was sustained for failure of the petition to state a cause of action, and for the further reason that the cause, if any, was barred by the five-year statute of limitations (subd. 1, § 101, O. S...
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February 20, 1940, an election was held in Oklahoma City for the purpose of deciding whether said city should issue $6,911,000 negotiable coupon bonds for the purpose of providing funds for proposed water supply improvements. Admittedly the election was held in pursuance of the authority of art. 10, secs. 26 and 27, Constitution of Oklahoma, Okla. St. Ann., and is wholly *Page 467 governed by sai...
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On September 8, 1938, the trial court issued a temporary restraining order enjoining the tearing down and removal of a frame building located on certain lots in Haskell, Okla., pursuant to the verified petition of the board of county commissioners of Muskogee county, alleging in substance that several hundred dollars in taxes had accrued on said property and that said county's lien on same for sai...
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The plaintiffs in error instituted this action, as plaintiffs, in the district court. Demurrers to their petition, amended petition, and second amended petition were sustained in regular order. One Charles G. Shull, a former Bank Commissioner for the State of Oklahoma, was designated a defendant in the amended petitions, in addition to American Surety Company of New York, who was surety on his off...
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This is an original proceeding in this court brought by Anthony Motor Company, hereinafter referred to as petitioner, and its insurance carrier, to obtain a review of an award which was made by the State Industrial Commission in favor of Walter Scott Ferguson, hereinafter referred to as respondent. There is no serious dispute over the facts. On January 21, 1940, the respondent, while in the employ...
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delivered the opinion of the court. Defendant in error Gifford, nee Wilcox, who was plaintiff below, had judgment for $926.48, being the unliquidated balance due under the terms of a contract between said Gifford and Charles J. Rice and Company, plaintiff in error, plus interest, and costs of suit. Super *245 sedeas was granted. Reversal is sought principally on the ground tha...
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THIS matter was before us on a previous occasion.Clark v. Pueblo Quarries, Inc., 103 Colo. 402, 86 P.2d 602. Pursuant to the order remanding the case, trial was had on the merits, which resulted in a judgment of possession for the defendants, who were plaintiffs in error on the former, review, but who are now here as defendants, in error. Reversal is sought on a writ of error. Reference will be ma...
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DEFENDANT in error, plaintiff below, sued plaintiff in error (defendant) for $5,150 actual, and $2,500 exemplary, damages allegedly arising from his assault and battery upon her. Defendant pleaded a general denial and as special defenses alleged: (1) That at the time involved plaintiff was trespassing on his land and that he merely ejected her therefrom, using no more force than was necessary so t...
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