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All Reporters → p2d → Volume 117

Opinions in p2d Volume 117

This appeal is from an order admitting to probate an instrument which purports to be the last will and testament of Orrie Emma Krause, deceased. On the hearing of the cause the testimony of a subscribing witness, Mrs. Frizelle, furnished practically the only evidence showing the circumstances surrounding execution of the instrument. This testimony, in substance, was embodied in findings of the ...
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This appeal was taken by plaintiff from a judgment entered in favor of defendant, after a directed verdict. On April 25, 1935, Archibald Reid Van Antwerp took out a five-year, convertible, non-participating, term policy of insurance with defendant, for the sum of $5000, payable to his wife, if living, otherwise to his son. The policy provided for quarterly premiums of $21.50, and for a period o...
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46 Cal.App.2d 855 (1941) RAY PECK, as Administrator, etc., Appellant, v. BARBARA MARTINEZ et al., Defendants; JOE ANDERSON, Respondent. Civ. No. 12599. California Court of Appeals. Second Dist., Div. One. Sept. 26, 1941. Barry Sullivan for Appellant. David E. Hinckle for Respondent. WHITE, J. This action was brought to quiet title to certain real property. The first cause of action alleged...
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Respondents as owners of certain real property situate in Santa Barbara County, on June 1, 1936, entered into an oil and gas lease with appellant Olympic Refining Company, as lessee, which provided in part as follows: “3. The Lessee agrees to start the drilling of a well for oil within six months from the date of this agreement, and to continue the work of drilling such well, after commencing t...
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46 Cal.App.2d 857 (1941) THE PEOPLE, Respondent, v. VIRGINIA LOPEZ, Appellant. Crim. No. 3481. California Court of Appeals. Second Dist., Div. One. Sept. 26, 1941. Donald MacKay and Prentiss Moore for Appellant. Earl Warren, Attorney General, and Gilbert F. Nelson, Deputy Attorney General, for Respondent. YORK, P. J. Appellant Virginia Lopez was charged in an information filed by the distr...
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Plaintiff commenced this action to recover damages for injuries which he suffered on December 20, 1939, when he was struck by an automobile driven by defendant Mary D. Irvine. When the evidence had been received the trial court instructed the jury to return a verdict for defendants, stating that plaintiff had failed to prove negligence on the part of defendants and also that plaintiff was guilty o...
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This action was filed June 28, 1938, for the foreclosure of a mortgage given by Hollywood Improvement Co., a corporation, to secure a promissory note dated May 1, 1929, in the sum of $25,000, payable on or before one year after date, and made payable to George L. and Pauline A. Eastman, who subsequently became endorsers of the note. The complaint sets forth fully the various endorsements and de...
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This appeal is from the judgments of conviction and from the order denying defendant’s motion for a new trial. Defendant was accused by information charging him in four counts with violating section 288 of the Penal Code, which makes it a felony for a person wilfully to commit a lewd and lascivious act upon the body of a child under the age of 14 years with the intent of arousing or gratifying th...
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pro tern— This is an appeal from a judgment of dismissal entered upon the court’s sustaining, without leave to amend, a demurrer to a complaint in which ap *763 pellant sought to recover damages for an alleged breach of contract. The written agreement between the parties, dated March 28, 1939, is set out in the complaint. In the preamble respondent is described as first...
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The petition for writ of habeas corpus is denied. There is no showing that any evidence of former jeopardy was introduced before the trial court; in fact, the record of the superior court which is before this court fails to show any such evidence. The date referred to in the petition upon which it is alleged the former jeopardy attached is on or about the date of the preliminary hearing had by pet...
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pro tern. — This is an action to quiet title to undivided interests in real property together with damages for ouster. By virtue of a three-year lease signed by the administratrix of the mother’s estate and expiring October 31, 1936, appellant entered into and held exclusive possession of the Isom Ranch. The parties to this action are brothers and sisters, and through the probate proceedings of th...
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An information filed by the district attorney of Los Angeles County charged the defendant with the crime of burglary and alleged his prior conviction of a felony. The prior felony conviction was admitted by the defendant, and following his plea of not guilty to the burglary charge a trial by jury resulted in his conviction of the offense of burglary of the second degree. A motion for a new trial ...
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July 29, 1941, the transcripts on appeal were filed in this court. Thereafter, the time for filing briefs having elapsed, an order to show cause why the appeal should not be dismissed was issued, returnable September 24, 1941. On the latter date there was no appearance on behalf of appellant, either by brief or .otherwise. Therefore, pursuant to the provisions of section 1253 of the Penal Code, th...
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May 12, 1941, the transcripts on appeal were filed in this court. Thereafter, the time for filing of briefs having elapsed, an order to show cause why the appeal should not be dismissed was issued, returnable September 24, 1941. On the latter date there was no appearance on behalf of appellant, either by brief or otherwise. Therefore, pursuant to the provisions of section 1253 of the Penal Code, t...
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May 22, 1941, the transcripts on appeal were filed in this court. Thereafter, the time for filing briefs having elapsed, an order to show cause why the appeal should not be dismissed was issued, returnable September 24, 1941. On the latter date there was no appearance on behalf of appellant, either by brief or otherwise. *875Therefore, pursuant to the provisions of section 1253 of the Penal Code, ...
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First Dist., Div. One....
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July 31, 1941, the transcripts on appeal were filed in this court. Thereafter, the time for filing briefs having elapsed, an order to show cause why the appeal should not be dismissed was issued, returnable September 24, 1941. On the latter date there was no appearance on behalf of appellant, either by brief or otherwise. Therefore, pursuant to the provisions of section 1253 of the Penal Code, the...
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Petitioner herein, self insured employer of respondent Eddie Huffman, sought a writ of review from the order of the Industrial Accident Commission amending a decision after a rehearing, which amendment increased the percentage of permanent disability as a result of which petitioner was required to pay Huffman $13.58 a week for 240 weeks and thereafter as compensation for permanent disability $3.34...
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This action was brought to recover for personal injuries, medical expenses, and damages to the automobile of plaintiff. After trial by the court, findings were entered in favor of respondent, and judgment for $1276.40 entered against defendant, who now appeals therefrom. There are, in reality, only two grounds urged for reversal, although they have been subdivided into six by appellant. The first ...
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April 25, 1941, the transcript on appeal was filed in this court. Thereafter, the time for filing of briefs having elapsed, an order to show cause why the appeal should not be dismissed for want of prosecution was issued, returnable September 24, 1941. On the latter date there was no appearance for appellants, either by brief or otherwise. Therefore, pursuant to the provisions of rule V, sec. 3, R...
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By his complaint plaintiff alleged that he was a licensed real estate broker; that as broker for one Walter Gage, and with the latter’s written authority, he offered to sell to defendant certain real property for $47,500; that defendant informed plaintiff that he desired to purchase the property provided Gage would accept certain real property of defendant as part of the purchase price and provid...
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46 Cal.App.2d 859 (1941) THE PEOPLE, Respondent, v. JOE ALBA et al. Appellants. Crim No. 1775. California Court of Appeals. Third Dist. Sept. 26, 1941. Percy Napton for Appellants. Earl Warren, Attorney General, J. Q. Brown, Deputy Attorney General, and Thos. J. McBride for Respondent. THOMPSON, J. The defendants were convicted of the crime of grand theft accomplished by means of fraud as ...
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Plaintiff appeals from a judgment of nonsuit. Plaintiff and defendants are insurance brokers operating in the San Francisco area. The present action was brought to recover brokers’ commissions on certain fire insurance policies on the public school properties of San Francisco. The commissions on such policies, with the exception of $815, were paid to defendants. Plaintiff contends that he, rath...
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The plaintiffs sued to recover a sum of money claimed to be due from the defendant as surety on a bond. Judgment was given for plaintiffs, and defendant appeals. Defendant does not deny liability on the bond, but contends that the judgment was awarded for an amount in excess of its liability, and that as against the correct amount it was entitled to have credited the sum of $1200 theretofore paid ...
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On July 17,1941, the transcripts on appeal were filed in this court. Thereafter, the time for filing briefs having elapsed, an order to show cause why the appeal should not be dismissed was issued, returnable September 24, 1941. On the latter date there was no appearance on behalf of appellant, either by brief or otherwise. Therefore, pursuant to the provisions of section 1253 of the Penal Code, t...
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ON MOTION FOR ALLOWANCES. *Page 322 [EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 323 OPINION Appellant asks this Court to make certain allowances to permit her to prosecute an appeal from a judgment rendered in the First Judicial District Court, in and for Ormsby County...
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This is an appeal by the City of Phoenix, called defendant, from a judgment of the superior court in favor of the State of Arizona, called plaintiff, holding that ordinance No. 3081 of said city declaring certain lands annexed to the city is void and *Page 10 of no effect. The facts are not in dispute and may be stated as follows: In the spring of 1940, a petition, signed by the Phoenix Union Hig...
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This is an appeal by Paramount Pictures, Inc., appellant, and another, from an award of the Industrial Commission of Arizona, made in favor of George C. Edwards as administrator of the estate of James L. Edwards, deceased. Appellee urges that the award should be affirmed for the reason that the case has previously been before us in Paramount Pictures, Inc., et al. v.Industrial Commission et al., 5...
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This in an appeal by Howard Rives from an order denying his petition for a partial distribution *Page 18 to him as a legatee under the will of Mary H. Baxter, deceased. The will, under which appellant claims a portion of the decedent's estate, was made August 13, 1927. The maker thereof was a resident of Yuma County. She died December 20, 1928. In her will she nominated Hugo B. Farmer as executor...
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This is an appeal by Joseph Ahira Sorrells, hereinafter called the minor, from certain parts of an order and judgment settling the final account of Laura S. Bergier, hereinafter called the guardian, and a cross-appeal by the guardian from certain other portions of said order. A motion to dismiss the appeal was filed by the guardian on the ground that it was not taken within the sixty days permitte...
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— This comes before us on certiorari from an award of the Industrial Commission, called the commission, against E. J. Preach, doing business as United Service Station, and in favor of Edgar E. Hart, called petitioner. There is no dispute that Hart suffered a compensable injury as the result of an accident arising out of and in the course of his employment and is entitled to an award of compen...
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Plaintiff recovered a default money judgment against the defendant five days after the time for answer had expired. At the same term of court defendant filed a motion to vacate the judgment, stating in the motion that it had a good defense and offered to file its answer stating such defense, and that prior to the answer day it had prepared a motion in the cause, but through inadvertence and mistak...
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This is an appeal from the district court of Comanche county involving an order approving the final account of a receiver and allowing compensation, and directing the payment thereof from the property in the hands of the receiver belonging to the defendant. From the briefs and the record, we gather this general history of the litigation. Mrs. Thurman traded real and personal property in Comanche c...
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This appeal presents the identical question decided in Excise Board of Washita County v. Lowden et al., 189 Okla. 286,116 P.2d 700. The population of Beckham county, according to the federal census of 1930, was 28,991, and according to the 1940 federal census it decreased to 22,163. The excise board of Beckham county made appropriation and levy for salaries of county officers, for the fiscal year ...
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On April 13, 1940, the defendant in error, hereinafter referred to as plaintiff, instituted this action against the plaintiff in error, hereinafter referred to as defendant, to obtain a divorce, custody of two minor children, money judgment for their support, attorney fees, division of property and to restrain the defendant from disposing of any of the property during the pendency of the litigatio...
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The firemen's relief and pension board of the city of Holdenville, Okla., appeals from an order *Page 329 and judgment of the district court of Hughes county reversing an order of said board denying John J. Lucas a pension. February 5, 1934, Lucas filed with said board an application for a pension, and among other things alleged: "That said applicant has fulfilled all the requirements as provided...
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The defendant in error is one of the parties designated as a defendant in a petition filed by the plaintiff in error, as plaintiff, in an action to recover damages for alleged slander. The parties will hereinafter be referred to as designated in said petition. Plaintiff's final attempt to obtain service upon said defendant for the purpose of said action was by causing a copy of an alias summons is...
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Fred E. Acre appeals from a judgment of the district court of Garfield county, based on the verdict of a jury, in favor of Chappell Oil Company, substituted as defendant in the trial court. Chappell Oil Company obtained a judgment against H.M. Acre in the district court of Garfield county and caused an execution to issue to the sheriff of the county to be levied upon the property of H.M. Acre. The...
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J.T. Moreland and W.A. Moreland, hereinafter referred to as plaintiffs, instituted this action in the district court of McCurtain county against Cleo C. Shaffer and Florence Shaffer, hereinafter referred to as defendants, wherein it was sought to obtain possession of a tract of land consisting of 8.92 acres and to quiet title thereto. Defendants by their pleadings conceded that plaintiffs' title w...
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The record discloses that negotiations were begun between the plaintiff, Joe T. Williamson, and the defendant, the board of education of the city of Woodward, Okla., prior to July 1, 1936, for the employment of the plaintiff as superintendent of schools of the city of Woodward for the fiscal year beginning July 1, 1936. On July 1, 1936, at a regular meeting of the school board with all members pre...
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This action originated in the common pleas court of Tulsa county. Plaintiff, Mrs. S.B. Ware, defendant in error, sued defendant, the Kansas City Southern Railway Company, plaintiff in error, for personal injuries allegedly resulting from being thrown through an automobile windshield when she was traversing defendant's railroad crossing in Decatur, Ark. Plaintiff, W.H. McKissick, defendant in error...
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Lucinda Cully, hereinafter referred to as plaintiff, filed a petition in the county court of Seminole county to determine the heirs of Wallace Cully, deceased. She alleged that she was the wife of Wallace Cully on January 8, 1937, the date of his death. She alleged that there was one child born to the marriage, which child died without issue, and that Wallace Cully left no other children, and that...
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Lucinda Cully, hereinafter referred to as plaintiff, filed a petition in the county court of Seminole county to determine the heirs of Wallace Cully, deceased. She alleged that she was the wife of Wallace Cully on January 8, 1937, the date of his death. She alleged that there was one child born to the marriage, which child died without issue, and that Wallace Cully left no other children, and that...
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The board of county commissioners of Tulsa county, hereinafter referred to as plaintiff, instituted this action in the district court of Tulsa county against A. Garland Mars, sheriff of Tulsa county, hereinafter referred to as defendant, as an action in mandamus to compel defendant to account to the county for certain funds received by him by way of profits for the feeding of federal prisoners con...
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This is an action by C.E. Dobbins and others to quiet the title to, and for possession of lot 5, block 64, of the original townsite of Oklahoma City, which lot is 25 feet wide and 140 feet long. The judgment of the trial court gave plaintiffs the south 100 feet of the lot, and Oklahoma City the north 40 feet. On appeal this court, in Oklahoma City v. Dobbins, 172 Okla. 195, 44 P.2d 148, reversed t...
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Vinnie McCracken, a widow representing herself and her children, appeals from the judgment of the district court of Oklahoma county sustaining the demurrer to her evidence of Franco-Dominion Development Corporation, a corporation. R.C. McCracken was killed while in the course of his employment by the company. A crew of which he was a member was engaged in pulling the rods from a well belonging to ...
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Defendants, Peter Joseph O'Donnell and Florence Nightengale O'Donnell, were jointly charged in the district court of Oklahoma county with the crime of robbery with firearms; were tried, convicted, and the defendant Peter Joseph O'Donnell was sentenced by the court to serve a term of 35 years in the penitentiary and defendant Florence Nightengale O'Donnell was sentenced to serve 20 years in the pen...
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The defendant, Bryan B. Burns, was charged by indictment presented by a grand jury of Kiowa county with the crime of uttering a forged instrument, was tried, found guilty, but the punishment was left to the court, who thereupon sentenced the defendant to two years in the State Penitentiary, from which judgment and sentence thus pronounced the defendant has appealed to this court. The defendant mak...
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DeRoy Burns, Bryan B. Burns, and Charles Merchant were charged by an indictment presented and filed by a grand jury of Kiowa county with the crime of conspiracy to defraud the state; a severance was granted; the defendant, DeRoy Burns, was tried, convicted and sentenced to serve two years in the State Penitentiary and to pay a $3,500 fine, from which judgment and sentence an appeal has been taken ...
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Defendant, Bill Wagner, was charged in the county court of Carter county with the crime of unlawful possession of intoxicating liquor, to wit: 3 3/4 pints of whisky, was tried, convicted and sentenced to pay a fine of $50 and serve 30 days in the county jail, and has appealed. The error alleged for the reversal of this case is based upon the contention of the illegality of the search warrant and t...
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The defendant, Robert Todd, was charged in the district court of Oklahoma county with the crime of burglary in the second degree; was tried, convicted and sentenced to serve two years in the State Penitentiary, and has. appealed. The only contention presented by the defendant is that the evidence of the state is insufficient to support the verdict. The proof on behalf of the state sho...
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This is an original application for writ of habeas corpus wherein the petitioner, Glen Wilkerson, alleges that he is unlawfully restrained of his liberty in the county jail of Comanche county at Lawton, Okla. It has been stipulated between counsel for petitioner and respondent that this case should be governed by the opinion of this court in the case of Ex parte Meadows, 71 Okla. Cr. 353,112 P.2d ...
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After receiving permission from the court, a second petition for rehearing has been filed and this matter further presented and argued to the court. We have again carefully reviewed the record in this case and are unable to find any evidence which is sufficient in our opinion to show that the trial court abused *Page 393 its discretion in refusing the request of the defendant to withdraw his plea...
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Defendant, Ed Baker, was charged by information filed in the district court of Muskogee county with the crime of "larceny from a boxcar"; was tried, convicted and sentenced to serve a term of six months in the penitentiary, and has appealed. The only contention of defendant for reversal of this case is that he was not guilty of any criminal intent, and that therefore the verdict and judgment and s...
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Petitioners, Grover Harrison, Frank Loftis, Innis Clinton Woodard, and Dan Fry, filed in this court on the 8th day of August, 1941, their petition for writ of habeas corpus alleging that they were unlawfully imprisoned in the county jail of Okfuskee county by J. W. Kennedy, sheriff of said county; that the cause of said restraint was that they had been charged by complaint filed before a justice o...
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1 Reported in 117 P.2d 179. Plaintiff, as guardian ad litem for Wilmer Bunney, a boy thirteen years of age, brought suit against defendants, a corporation and two individuals composing a partnership, to recover damages for personal injuries sustained by the minor. The boy's injuries were caused by fire, resulting from an explosion on a truck which was owned by defendant Pound Motor Company and was...
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1 Reported in 117 P.2d 187. Plaintiff filed his complaint on November 16, 1939. The defendant was erroneously designated therein as "L.L. Longmire," instead of "E.E. Longmire," and, in order to correct the mistake, the plaintiff filed an amended complaint on the following day. With the exception of the defendant's initials and the date of verification, the two pleadings were identical. In his amen...
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1 Reported in 117 P.2d 189. Plaintiff Commercial Waterway District No. 1 of King county, which was organized many years ago under the provisions of Rem. Rev. Stat., § 9724 [P.C. § 1366] et seq., extensively improved the Duwamish river in King county, and the maximum benefits were duly assessed against adjacent real estate. Negotiable bonds and a considerable amount of construction *Page 476 warra...
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1 Reported in 117 P.2d 197. Relator, a police officer of the city of Seattle, sought a writ of mandate to compel the civil *Page 534 service commission of that city to place him in position No. 3 on an eligible list based upon a promotional examination held on April 10, 1939, for the position of police sergeant, and to require the commission to give him the preference as to appointment over any p...
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1 Reported in 117 P.2d 201. The relator, Electrical Products Consolidated, is a corporation organized under the laws of this state, with its principal place of business in the city of Seattle, and will be referred to as the electrical company. Edward Williams and Esther Williams, his wife, are residents of the city of Spokane. May 2, 1938, Mr. Williams contracted to purchase certain electrical sup...
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1 Reported in 117 P.2d 202. The present proceeding was initiated in this court by the adoptive mother of a minor child to review, by writ of certiorari, an order wherein the superior court for Kitsap county, exercising its jurisdiction in juvenile cases, found the minor to be a dependent *Page 544 child within the meaning of the juvenile court law and expressed the intention of taking her from he...
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1 Reported in 117 P.2d 207. Plaintiff brought this action to recover for damage to his automobile, resulting from a collision with an automobile owned by the defendants Curtis Smith and wife. The defendants sought, by cross-complaint, to recover for damage to their own vehicle. After a trial without a jury, the court found that both parties had been guilty of negligence, which proximately caused t...
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1 Reported in 117 P.2d 210. This action was instituted to recover against Dean Witter and others, doing business under the partnership name of Dean Witter Company, and John Brazier for damages alleged to have been sustained by reason of the failure of the defendants to execute plaintiff's order to cover her short sales in the grain market. Defendants denied that plaintiff ever ordered her short sa...
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1 Reported in 117 P.2d 215. The relator, a school teacher, brought this action in the superior court for Thurston county, seeking a writ of mandate to compel the board of regents of the state college of Washington to grant to him, and to compel the state superintendent of public instruction to countersign, a life diploma. A trial to the court resulted in the entry of a judgment denying the perempt...
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1 Reported in 117 P.2d 217. This action was brought by the plaintiff to recover for damage to his automobile resulting from a collision with an automobile of the defendants, who cross-complained for damage to their own car. The court, after a trial without a jury, found that the collision had been proximately caused by the negligence of both parties and entered judgment denying recovery to either ...
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1 Reported in 117 P.2d 221. This is an appeal from a judgment dismissing the action, after the entry of orders sustaining demurrers to the complaint. In a single cause of action, plaintiffs seek to recover from the city of Goldendale, its mayor and councilmen, and from the defendants Klein, doing business as Goldendale Meat Company, damages resulting from the pollution of the waters of the Little ...
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1 Reported in 117 P.2d 224. ON REHEARING. After the Departmental opinion in this case was filed (8 Wash. 2d 18, 111 P.2d 218), the appellants presented a petition for rehearing, which was granted, and the matter came on for rehearing before the court sitting En Banc. Upon this hearing, the appellants asked that a certain sentence in the opinion be stricken. The respo...
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1 Reported in 117 P.2d 225. The plaintiff brought this action seeking injunctive relief. The trial to the court without a jury resulted in a decree permanently enjoining the defendants from doing the thing of which the plaintiff complained. From this decree the defendants appeal. The respondent is a corporation organized under the laws of this state. The appellants are husband and wife, and reside...
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1 Reported in 117 P.2d 228. This action was instituted by the state of Washington against Kitsap County Bank, a corporation, as defendant. The complaint alleged that the commissioner of unemployment compensation and placement of the state of Washington had, prior to the institution of the action, demanded from defendant payment of contributions to the unemployment compensation fund, and the defend...
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William Ede was convicted of the crime of larceny of a cow, and he appeals. AFFIRMED. REHEARING DENIED. William Ede was tried and convicted of the crime of larceny of a cow, the property of one Ellis S. Dement, and was sentenced to imprisonment in the Oregon state penitentiary for the term of four years. From this judgment and sentence, he has appealed. At the opening of the trial, defendant's cou...
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Proceeding in the matter of the estate of Fritz Braun, sometimes known as Fred Braun, deceased, wherein the State Land Board of Oregon filed objection to the final account of the Portland Trust Savings Bank, as administrator of the estate of Fritz Braun, deceased, opposed by Sophie Braun, Anna Barbara Bingemer, nee Braun, Karl August Braun, and Ernst Braun, claiming as heirs of Fritz Braun. From ...
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Appellant sued appellee Ramsey to quiet title to 2,127.4 acres of land situated in Rio Arriba County, New Mexico, and the State Tax Commission of New Mexico intervened, claiming title in the State through sale of said property to the State under proceedings to collect taxes. The district court held that neither plaintiff nor defendant had title to the property, but that title was in the State of N...
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[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 493 This is an appeal from a judgment in favor of the defendant. The action was forcible entry and detainer. The parties will be treated in this opinion as they were below. The case was tried de novo in the District Court on appeal from a Justice of the Peace...
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[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 498 [EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 499 This action was brought by the Home Insurance Company, a corporation (plaintiff in the district court), under ...
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This appeal is from a judgment of the district court of Lake county for the defendants dismissing plaintiffs' complaint, seeking to restrain the defendant city from spreading or collecting municipal taxes on the land of the plaintiffs, and for costs. The facts are that plaintiffs are the owners of a forty-acre tract included in the town of Ronan. The forty acres in question in 1905 were allotted t...
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This is a proceeding in mandamus to compel defendants to apportion a $250,000 appropriation. It calls for an interpretation of House Bill No. 366, found on pages 391 et seq. of the Laws of 1941. That Act carries appropriations in definite amounts for each of the following purposes: Old age assistance, aid to needy dependent children, aid to the needy blind, child welfare services, grants to counti...
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This is an action in the nature of an action to quiet title. The purpose of the plaintiff is to have a certain drilling agreement declared null and void, and cancelled on the records of Fallon county, in order to remove a cloud from plaintiff's title to an oil and gas lease. *Page 479 The lease was entered into January 12, 1929, between the plaintiff and the then owner of the leased land, George ...
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This is an appeal from a judgment for defendants in an action to set aside a tax deed to certain property in the city of Helena. The property in question prior to the plaintiff's ownership was owned one-fifth interest by Pierce and a four-fifths interest by Nielson. The plaintiff became the owner of the Nielson interest on the 12th day of November, 1937, and the deed was recorded on the 15th day o...
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Plaintiffs recovered a judgment in the sum of $260 in an action on an account stated and defendant appealed. The case by agreement was tried to the court without a jury. The alleged indebtedness arose by virtue of purchases made by the defendant at the plaintiffs' hardware store. The plaintiffs' accounts had been destroyed by fire in December, 1936, before the action was instituted. Plaintiffs all...
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Plaintiff was a mere licensee as a matter of law and, as such, failed to show the breach by defendant of any duty of care owed to her. The general law is well summarized in 89 A.L.R. 757, where the following statement occurs on page 758: "Generally speaking, persons who enter the premises of an employer merely for the purpose of seeing an employee on business unconnected with that of the employer,...
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On his appeal from conviction of the grand larceny of an automobile and being a persistent violator appellant assigns two errors. The first one is that prior to the present prosecution he had been convicted of a felony three times, this would therefore be his fourth conviction, and he could not be a persistent violator because section 19-2414 I. C. A. provides that upon conviction for the third ti...
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Walter Barr was charged, tried and convicted in the Jusice Court of Pocatello precinct, Bannock County, Idaho, of the crime of obtaining money under false pretenses and sentenced to imprisonment in the Bannock County jail for fifteen days and to pay a fine of $25.00 and costs. Upon appeal to the District Court for Bannock County he was again tried upon the same charge and convicted and sentenced t...
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This is an original action by which the plaintiff seeks a peremptory writ of mandate to compel the defendant as Recorder of Murray City to acknowledge the filing of a petition for referendum and to perform the duties enjoined upon him by law so as to submit by referendum a designated ordinance to the voters of Murray City. On June 18, 1941, the Board of Commissioners of Murray City adopted the ord...
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This is a motion to dismiss the appeal on the grounds, among others, that the appeal was not taken within the time required by law. The judgment roll shows the following events, after judgment: October 11, 1940, a notice of motion for new trial *Page 44 was filed; October 18, 1940 (shown by minute entry), motion for new trial taken under advisement; November 16, 1940 (shown by minute entry), moti...
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This is an appeal upon the judgment roll. From the record before us, including statements in the briefs, the history of the case seems to be this: L.H. Jones and his wife, two of the defendants were on a mortgage of the premises involved in this action, which mortgage ran to plaintiff American Mutual Building and Loan Company. The mortgage was foreclosed and the property purchased by plaintiff. L....
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A statutory proceeding for review by this court of the proceedings and orders of the Public Service Commission of Utah granting to the Fuller-Toponce Truck Company a certificate of convenience and necessity to operate as a common motor carrier of property between Salt Lake City and Logan, Utah. The plaintiffs, railroad corporations, operating through the same territory protested the application of...
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[1, 2] AN action on account for goods, wares and merchandise, sold and delivered, as alleged, by plaintiff's assignor to defendant. Making avail of section 69 of the Code of Civil Procedure, plaintiff did not set forth the items of the account in his complaint. Defendant, invoking the same section, moved that plaintiff be required to furnish a copy of the account, which motion was granted. Respond...
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On Petition for Rehearing. Plaintiff in error cited in its brief, and in its petition for rehearing again calls to our attention, the case ofRambo v. Armstrong, 45 Colo. 124, 100 P. 586, as being direct authority supporting its position. In that case the grantee did pay the taxes, and recovered a judgment against the grantor for the amount so paid. Under the facts of that case the court was correc...
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THIS action was brought by Joseph Tureck, plaintiff in error, against the Board of County Commissioners of Las Animas county, Colorado, to recover salary in the sum of $962.50 which he alleged was due him as deputy county treasurer. A statement of the undisputed facts is as follows: Tureck had been deputy treasurer for a number of years and, after reelection of the county treasurer for a two-year ...
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The question before us is whether the Denver district court committed prejudicial error by adjudging insufficient, on demurrer, a certain petition filed on February 21, 1941, by the defendant in a criminal case then pending in that court. The facts set forth in the petition are the following: Thomas W. Parker, the plaintiff in error, was convicted of assault with intent to commit murder; during pr...
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delivered the opinion of the court. Gladys M. Youll, defendant in error, recovered a judgment against the International Distilleries Corporation, plaintiff in error, on a promissory note admitted to have been made, executed and delivered by the corporation for a valid consideration on July 30, 1937. It is for $1,800, and expressly made payable one year after date to the defendant in error, wife...
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THE Industrial Commission, vacating a previous determination of contrary effect by one of its referees, found that defendant in error Cary, the claimant, had sustained a hernia as the result of an industrial accident occurring in the course of his employment by plaintiff in error Barker. It awarded compensation for temporary disability of about four weeks; ordered (pursuant to section 359, chapter...
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The defendant was charged in two counts with statutory rape (Penal Code, section 261), and in two additional counts with violation of section 288 of the Penal Code. A jury found him guilty on the first two charges, recommending imprisonment in the county jail, and not guilty on the other charges. He has appealed from the judgment of conviction and from the order denying his motion for a new trial...
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Although the plaintiff was awarded an interlocutory decree of divorce upon a complaint charging his wife with extreme cruelty, the court ordered him to pay her $840. His appeal, which is upon the judgment roll alone, concerns only this portion of the decree. In the cross-complaint the wife alleged that her husband had committed acts constituting cruelty. By other allegations, she asserted that ...
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In October, 1940, the petitioner, an attorney at law admitted to practice in this state, was charged with misconduct involving moral turpitude and dishonesty (sec. 6106, art. 6, State Bar Act), in that he retained and converted to his own use moneys of his client deposited with him for disbursement. The petitioner was born in San Francisco in April, 1894. He became an electrician by trade and was ...
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18 Cal.2d 667 (1941) PAUL H. BRUNS, Petitioner, v. THE STATE BAR OF CALIFORNIA, Respondent. L. A. No. 17850. Supreme Court of California. In Bank. Oct. 1, 1941. Paul H. Bruns in pro. per., L. J. Styskal and M. E. Barth for Petitioner. W. Eugene Craven and Joe Crider, Jr., for Respondent. *668 THE COURT. In two separate proceedings instituted before a local administrative committee of The S...
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Plaintiffs owned a furnished apartment house in Los Angeles. In March, 1939, they listed the house and furniture with defendant, a licensed real estate broker, the house to be leased at $250 per month, the furniture to be sold for $3,000 cash, such amounts to be net to plaintiffs. A listing card setting forth these terms was signed by plaintiffs and left in the possession of defendan...
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In this proceeding in mandamus the trial court entered a judgment which reinstates plaintiffs in the positions of policewomen of the city of San Diego, and directs payment of their salaries at the rate of $157 per month from date of commencement of the action. Defendants, the city, its officers and agents, have appealed. Prior to 1939, plaintiffs reached the status of classified employees of th...
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Petitioner was cited to appear before a local administrative committee of The State Bar and to show cause why he should not be disciplined for professional misconduct growing out of the alleged violation of his oath and duties as an attorney and the commission of acts involving moral turpitude within the meaning of sections 6103 and 6106 of the State Bar Act. At the conclusion of its hearing, the ...
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The appeal in this case was originally heard by the First District Court of Appeal, Division One. Following a decision by that court, a petition for hearing by this court was granted. Consideration of the cause leads us to the conclusion that the appeal was correctly decided by the District Court of Appeal. Its opinion rendered therein, which was prepared by Mr. Presiding Justice Peters, is there...
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The appeal in this case was originally heard by the First District Court of Appeal, Division One. Following a decision by that court, a petition for hearing by this court was granted. Consideration of the cause leads us to the conclusion that the appeal was correctly decided by the District Court of Appeal. Its opinion rendered therein, which was prepared by Mr. Presiding Justice Peters, is there...
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The petitioner, the county of San Bernardino, filed in this court its petition for a writ of mandamus to compel the respondent county surveyor to prepare a diagram of the property included within Boad Improvement District No. 38 of the County of San Bernardino, and to make an assessment, both as provided by the Befunding Assessment Bond Act of 1935. (Stats. 1935, p. 2023, as amended Stats. 1937, p...
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The plaintiffs sued for declaratory relief and had judgment on the pleadings after an order striking out the answer of the defendant Rosenberg on the ground that it tendered no triable issue of fact. Her appeal from the judgment presents a question of law alone—whether the complaint pleaded a cause of action for declaratory relief. Plaintiff Cecil Cooke Caldwell and defendant Rosenberg are...
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Petitioners appeal from: (1) An order of the trial court denying their application for a writ of mandate to compel respondent board of civil service commissioners to certify the names of petitioners as eligible from existing registers of the civil service commission to fill the positions of captain, lieutenant, and sergeant of police respectively in the police department of the city of Los Angeles...
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This action was commenced on February 26, 1940, for the recovery of a sum alleged to be due plaintiff under the terms of an oral contract by which defendant agreed to pay plaintiff the sum of $100 in addition to hourly wages for each house painted by plaintiff. Defendant has appealed from a judgment in plaintiff’s favor in the sum of $4200. Plaintiff is the father of defendant. In December...
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This is an action for personal injuries alleged to have been sustained as the result of an automobile collision. Upon the conclusion of the introduction of evidence on the question of liability, a motion for a directed verdict by defendants was granted. This appeal is from the judgment accordingly entered. It is contended by appellants that the evidence fails to sustain the trial court in the acti...
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In this action for personal injuries, the jury returned a verdict for defendants and plaintiff appeals. Respondent Jackson, a messenger in the employ of respondent corporation, was riding a bicycle south on Broadway between Third and Fourth Streets in the city of Los Angeles. As he approached Fourth Street the traffic signal displayed the “stop” semaphore and a line of automobiles travelling south...
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This is an appeal by defendant, State of California, from a judgment for $2,131.54 with interest thereon at 7% from the date of entry of judgment and $15.50 costs. The judgment was entered after the overruling of defendants’ general demurrer to the complaint and its failure to answer within the time allowed. The complaint alleges that plaintiff recovered three judgments against the Treasur...
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The petitioner was committed to the Patton State Hospital at Patton, California, by an order of the Superior Court of San Bernardino County, dated June 5, 1941. Her application for a writ of habeas corpus was denied by the Superior Court of San Bernardino County on August 15, 1941. In a similar proceeding filed in this court she now seeks to be released from restraint under said order of commitmen...
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Plaintiff recovered judgment against defendants in this suit to foreclose a mechanic’s lien. Defendants moved for a new trial, which was denied. Plaintiff filed a “supplemental memorandum of costs” for $15.50, covering items incidental to the hearing on the motion for new trial, including a per diem of $12.50 for the court reporter who had reported during the trial, $2 notary’s fees ...
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Defendant appeals from an order entered on April 6, 1939, modifying the terms of the interlocutory and final decrees of divorce theretofore entered on September 2, 1937, and November 10, 1938, respectively. The main contention of appellant is that the court below did not have jurisdiction to make the order. The record discloses that the decree was awarded to the wife, respondent here, with a pr...
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From a judgment of guilty on fourteen counts of violating section 504 of the Penal Code after trial by jury, defendant appeals. There is also an appeal from an order denying her motion for a new trial. Viewing the evidence in the light most favorable to the people (respondent), the essential facts are: *137Prom August, 1935, to January 1, 1940, defendant was employed as a clerk, stenographer, and ...
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From a judgment in favor of defendant after trial before the court without a jury in an action to recover damages for alleged malpractice, plaintiffs appeal. *118 Viewing the evidence in the light most favorable to defendant (respondent), the essential facts are: On December 19, 1938, plaintiff Ruth Ries consulted defendant, a physician and surgeon, relative to an itching in the region of h...
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The primary question presented by this appeal is whether a conveyance by one joint tenant to the other was fraudulent as to a creditor of both, and if so, whether a declaration of homestead filed by the grantee joint tenant prior to the lien of the creditor’s judgment is effective partially or completely to bar that lien. The creditor—predecessor in interest of appellant—on May 1, 1935, instituted...
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Defendant has presented a motion to recall the remittitur in the above entitled action, heretofore decided adversely to it by this court on June 13, 1941, the decision being reported in 45 Cal. App. (2d) 334 [114 Pac. (2d) 65], In support of its motion defendant contends that the judgment of June 13 was induced by “fraud or imposition *97practiced upon the court by a false suggestion as to the fac...
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Plaintiff recovered a judgment in the sum of $3750 as damages for injuries suffered by her when she fell upon a cement walk along the west side of the Castle Arms Apartments. Although the judgment is against both Ruby Rowland and Mrs. G. Buyers, the last named defendant alone has perfected an appeal. Defendant Rowland was the owner of the leasehold of the apartment house in question and appellant,...
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47 Cal.App.2d 132 (1941) THE PEOPLE, Respondent, v. ERNEST HERNANDEZ et al., Defendants; RAY HOLGUIN, Appellant. Crim. No. 3470. California Court of Appeals. Second Dist., Div. Two. Oct. 2, 1941. John P. Tobin for Appellant. Earl Warren, Attorney General, and Lewis Drucker, Deputy Attorney General, for Respondent. McCOMB, J. From three judgments of guilty of robbery in the first degree aft...
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Plaintiff commenced this action to recover damages for injuries suffered when he fell through a window of an apartment in defendant’s apartment house which had been rented by his parents. It is alleged in the complaint *165 that a screen in the window had been placed in a defective frame and that it was negligently attached to the window sill. A jury returned a verdict in favor of defendant but...
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Appeals are prosecuted from orders purporting to release “the levy and attachment of real property standing in the record and name of Yana Kai.” The Yokohama Specie Bank on September 11, 1930, recovered a judgment in the sum of $8000.25 against M. Kai and others. This judgment was assigned to Masami Sasaki in July, 1940. Yana Kai was not a party to the action. On July 26, 1940, Masami Sasaki ca...
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Defendant, a physician, appeals from a judgment upon a verdict in favor of plaintiffs in the sum of $7500 in an action against him for malpractice. On May 26, 1934, plaintiff, Angelina Sales, a 26 year old woman, was in her seventh month of pregnancy; during that day a nail in her shoe pierced the sole of her foot so that it pained her when she walked. Plaintiff removed her shoe and stocking, f...
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Appellant was convicted after trial by jury of violation of section 270 of the Penal Code, which provides that a father who wilfully omits without lawful excuse to provide the necessary food, clothing and medical care for his minor child is guilty of a misdemeanor. The appellant was placed on probation for a period of two years on condition that he pay the amount of $15 per month for the support a...
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This is an appeal from an order of the superior court granting the motion of defendant Duer to recall *101 a writ of execution levied upon her real estate and to satisfy the judgment against her. A judgment was obtained on July 7, 1939, by Bank of America National Trust and Savings Association against defendants Duer and Woosley in the total sum of $8,678.87. The judgment was based upon a def...
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The respondent moves for an order to have incorporated in and made a part of the record on appeal four designated notices of preferred labor claims; objections to preferred labor claims; and order for payment of certain labor claims made prior to the entry of the judgment which is the subject of the appeal. His affidavit states ‘1 that other and separate claims for labor were filed in said action ...
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Defendant, executrix of the last will of Gustave Weissbaum, deceased, appeals from a judgment for $67,346.84. The action was tried before a jury and represented a balance of principal and accumulated interest found to be due upon two promissory notes, executed and delivered to Anglo and London Paris National Bank as payee by G. Weissbaum & Co., a copartnership, in which decedent Weissbaum was o...
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From judgment for defendant in a suit involving money paid for a share in a gold mine plaintiff appeals. In March, 1937, plaintiff entered into an agreement with defendant Coppage, William A. Martin, Jr., and Elbert Whitney by which plaintiff paid in $4000 and was to receive a four per cent interest in the mine. The agreement provided as follows: “That for and in consideration of the ...
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This cause was submitted upon an agreed statement of facts. So far as those facts are material to the questions here involved, they may be thus summarized: M. J. Nolder Distilleries, Inc., owned certain real property upon which Fox-Woodsum Lumber Company placed a mechanic’s lien, and suit was started to foreclose. Ten months and eighteen months thereafter respectively, two purported trust deeds...
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The plaintiffs in three separate actions sued to recover the balances due on three promissory notes. The actions were consolidated. A separate set of findings was made in each action and a separate judgment was entered. From each judgment the defendant has appealed. The controversy arose out of the following facts: Carrie M. Botts, deceased, the maker of the three promissory notes upon which these...
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Appellant was accused by information of three counts of armed robbery and with three prior felony convictions of larceny and burglary. The three felony convictions were admitted by the defendant before trial. The jury adjudged defendant guilty of the three offenses as alleged and judgment was entered accordingly. The appeal is from the judgment and an order denying defendant’s motion for a new tri...
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Defendant was accused by information of the crime of murder. A jury returned a verdict finding him guilty of manslaughter and he has appealed from the judgment of conviction and from the order denying his motion for a new trial. At about one o’clock in the morning of December 21, 1940, Howard Perks, who had been working on the afternoon shift at an airplane factory, entered Curley’s Café on Sou...
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Plaintiff made a motion for change of venue from Santa Clara County to the city and county of San Francisco upon the ground that the convenience of witnesses and the ends of justice would be promoted by such *80 change (Code of Civil Procedure, section 397, subd. 3). From the order granting said motion, defendants appeal. This litigation involved the alleged procurement by Elizabeth A. Nelson...
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The defendant was tried, convicted, and sentenced on three different felonies. Thereafter the district attorney in San Francisco filed an information against him charging the crime of robbery. The defendant entered a plea of guilty. After numerous proceedings had in the municipal court and in the superior court, acting on and ac *149 cepting the plea of guilty, the latter court entered a judgme...
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From an order granting a preliminary injunction upon a complaint asking for the appointment of a receiver and other equitable relief, in which order the trial court also denied without prejudice the application for the appointment of a receiver, the defendants appeal upon a typewritten transcript. The grounds of appeal are: (1) that as to two of the five named- defendants, the court had not acq...
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Plaintiff, respondent herein, was injured while standing on the sidewalk opposite a forty foot red zone marked on the curb, and about twenty inches back from the curb, in downtown Los Angeles, when he was struck by the right rear end of defendants’ truck as it was backing up to the curb on an angle that brought the right rear wheel in contact with the curb some distance ahead of the left wheel. T...
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Both appellants herein, together with others named, were charged by an indictment with one count of conspiracy to commit pandering, a felony, (Stats. 1911, p. 9; Act 1906, p. 970, Deering’s General Laws 1937) with four counts of pandering and two counts of attempted pandering. Appellant Montgomery was convicted on all counts and appellant Forrester was convicted on three counts of pandering. *8 ...
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Quo warranto to oust T.E. Burke from the office of Justice of the Peace for the 4th Precinct of Magna, Salt Lake County, Utah, on the ground that said Burke was wrongfully holding possession of said office after the same was by law forfeited. On January 2, 1939, having been elected Justice of the Peace, Burke qualified for office and entered on the duties thereof. On April 8, 1941, Burke was found...
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An appeal from a verdict of guilty and judgment thereon in the District Court of Salt Lake County. The information accused the defendant "of the crime of Perjury, committed as follows, to wit: That the said Sid K. Spencer, on the 31st day of May, A.D., 1939, at the County of Salt Lake, State of Utah, committed perjury, by testifying as follows: "`I have not driven a car at any time since my licens...
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[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 92 Respondent, a municipal corporation, is a city of the second class. About August 18, 1928, Ordinance No. 431 was enacted by the mayor and city council, by the terms of which the city was divided into five zoning districts as follows: "A" residence zone; "B...
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This is an action to quiet title. The material facts are substantially as follows. On or about March 19, 1933, John Beck, Jr., became the owner in fee of the property involved, situated in Rexburg, Madison County. William Foell, and C.H. Higby and wife, are in possession of the property as tenants of Beck, Jr. No further mention of Higby and wife is necessary; both were made parties but defaulted....
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Respondent was charged and convicted of the crime of "willfully, unlawfully and knowingly *Page 102 permit [permitting] to be played and conducted in a house owned by him, the said James E. McNichols, to-wit: a place known as the Shamrock Club, a game of chance, to-wit: cards, dice, slot machines and roulette, for money, checks and credit * * *." The devices were duly seized under a search warran...
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[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 110 In appellant's third amended petition is alleged that on and immediately before December 20, 1926, Louis T. Miller Sons, hereafter called Miller *Page 112 Sons, owned the Northeast Quarter of Section 12, in Township 3 North, Range 26, and Lots 1 and 2 ...
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Respondent brought suit to quiet title to two patented sulphur mining claims variously and ununiformly described in the filings on, and locations and transfers thereof, but now sufficiently known and described as Lot 38 and Lot 1351 with their respective descriptions by metes and bounds, in the Southwest quarter and the Southeast quarter of Section 2, Township 9 South, Range 42 E. B. M., in the So...
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SUIT by a mother against her daughter to rescind a contract for support, and to compel reconveyance of real property. The daughter, while admitting she received from her mother conveyance of the property involved, alleged that the transaction was a voluntary gift, with no conditions attaching. Further, although denying any contractual obligation to that end, she alleged that she provided her mothe...
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A PROCEEDING on a death claim under the Workmen's Compensation Act. Agnes J. Warner, widow of Julius H. Warner, deceased, in behalf of herself and three minor children, as claimant; G. R. Messick, C. S. Hawn and K. A. Overan, as employers; State Compensation Insurance Fund, as insurer; and the Industrial Commission, were the parties. The commission in the first instance, and the district court in ...
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This is an appeal by the Tom Reed Gold Mines Company, defendant, from a judgment for conversion in favor of P.H. Brady, plaintiff, and from an order overruling its motion for a new trial. The claim of right to recover against defendant, as set out in the complaint, is that plaintiff, as the lessee of a portion of the Aztec Center lode mining claim, situate in the San Francisco Mining District, Moh...
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Pauline Scarborough, called plaintiff, and D.C. Scarborough, her husband, brought suit against Central Arizona Light and Power Company, a corporation, called defendant, and John Doe, to recover damages which plaintiff alleged she had incurred through the negligence of defendant. The case came on for trial before a jury, and after plaintiff had made her opening statement, defendant moved that the j...
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A.J. Bayless Markets, Inc., a corporation, called the company, brought suit against C.F. Hammond to recover attorney's fees incurred by it in defending a certain action in a previous suit in which the position of the parties as plaintiff and defendant was reversed. Reference to this previous suit will be made from time to time as is necessary. The facts leading up to the present action are not in ...
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This is an original proceeding for an appropriate writ seeking to set aside an order of the respondent court setting case No. 15,862 in the respondent court for trial as an equity case and prohibiting the respondent court from proceeding with the trial thereof without a jury. Case No. 15,862 has heretofore been before this court, and it was held by this court that the complaint was good as against...
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This is an appeal from an order of commitment of the county court of Kingfisher county providing for the care and custody of an alleged dependent and neglected child. The complainant, the defendant in error herein, filed his petition in county court pursuant to sections 1729-1738, O. S. 1931, 10 Okla. Stat. Ann. §§ 101-110, alleging in substance that Barbara Rae Reed was a dependent and neglected ...
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This is an appeal from an order of commitment of the county court of Kingfisher county providing for the care and custody of an alleged dependent and neglected child. The complainant, the defendant in error herein, filed his petition in county court pursuant to sections 1729-1738, O. S. 1931, 10 Okla. Stat. Ann. §§ 101-110, alleging in substance that Barbara Rae Reed was a dependent and neglected ...
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I.D. Moseley, receiver for Century Petroleum Company and Century Petroleum Corporation, under appointment by the district court of Tulsa county, filed an application for an allowance of additional compensation for services rendered in 1938 and 1939, and F.D. Bearly, trustee for all unitholders in the oil and gas wells of the two corporations, appeals from the order of the court making an additiona...
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On the 31st day of July, 1940, a petition to alter school district boundaries was filed with the superintendents of Roger Mills and Custer counties. It was requested therein that an election be called for the purpose of detaching a certain territory described therein from Pie Flat consolidated school district No. 41 and attaching the same to independent school district No. 66. The petition was sig...
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Plaintiff below appeals from the judgment of the district court rendered on a directed verdict for defendant in an action for slander. The defense was that the alleged defamatory utterance was made by defendant while testifying in his own behalf in a judicial proceeding had subsequent to judgment in a divorce action wherein he was defendant, and was made not only in response to a question by couns...
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This is an appeal from the district court of Tulsa county. On the 23rd day of May, 1928, the defendants, Maude E. Graff and Bennett Graff, executed a note in the sum of $11,000, bearing interest at the rate of 7.8 per cent per annum, in favor of the Ponca City Building Loan Association. On the same date the defendants executed and delivered to plaintiff a real estate mortgage covering the propert...
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This proceeding is brought by the Eagle Picher Mining Smelting Company, petitioner, to review an award in favor of Frank Lamkin, respondent. On August 2, 1938, the respondent claimant was painting stacks for the petitioner and fell, sustaining an accidental injury, by reason of which he is now permanently and totally disabled. An award was made for the maximum of 500 weeks at the maximum weekly c...
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This is an action by Glen Pursley against defendant E.E. Aust and others for damages for conversion of an automobile. From a verdict and judgment for plaintiff, Aust appeals. The sole question for determination is the sufficiency of the evidence to support the charge of conversion, and to justify the denial of defendant's motion for a directed verdict. From the evidence it appears that plaintiff p...
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This is an original proceeding in this court brought by C. K. Howard Company, hereinafter referred to as petitioner, and its insurance carrier to obtain a review of a decision rendered by the State Industrial Commission on April 26, 1941, which affirmed an award previously made by a trial commissioner on September 24, 1940, in favor of William S. McKay, hereinafter referred to as respondent. The ...
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This is an appeal from an order granting a divorce on the cross-petition of the defendant below. The parties will be referred to as they appeared in the trial court. The trial court held that a prior proceeding commenced and prosecuted in the superior court of Seminole county was final as to the property rights and refused to consider or adjudicate the property rights as between the plaintiff and ...
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Plaintiff in error, hereinafter referred to as plaintiff, commenced this action to recover damages of the defendants in error, hereinafter referred to as defendants, on account of the latter's alleged conversion of certain *Page 395 steel pipe upon which he claimed mortgage liens. The trial court sustained motions interposed by the defendants for judgment in their favor on the pleadings, and from...
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Frank O. Lowden et al., Trustees of the Estate of the Chicago, Rock Island, Pacific Railway Company, appeal from a judgment of the superior court of Seminole county, based on the verdict of a jury, in favor of Iza Friddle. Iza Friddle, as plaintiff, representing herself and children, the survivors of Garrett Friddle, deceased, brought an action against appellants, hereafter called company, to rec...
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This is an appeal from the order of the Corporation Commission amending certificate of public convenience and necessity, No. 1851, in favor of Yellow Cab Transit Company. The order was entered on June 7, 1939, and no notice of intention to appeal was given at that time. On August 2, 1939, certain proceedings in the nature of a rehearing were considered, at which time oral arguments were submitted ...
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This action was commenced in the district court of Tulsa county by the state on relation of the Board of Barber Examiners to enjoin the defendant from violating an order, promulgated pursuant to section 12, art. 2, ch. 24, S. L. 1937, 59 Okla. St. Ann. § 102, of the board fixing minimum prices for barber services in the city of Tulsa. Defendant filed his answer and cross-petition, admitting violat...
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This is an action by the plaintiff, C.E. Thomas, to recover from the defendant, Venmex Oil Company, damages to his livestock and pasturage caused by salt water and refuse oil flowing over land he occupied as a tenant from defendant's producing oil and gas lease. From a judgment rendered on a verdict for the plaintiff for $650 actual damages and $100 exemplary damages, the defendant appeals. 1. In ...
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On October 4, 1939, C.G. Drawver and Mrs. C.G. Drawver, as plaintiffs, instituted this action against Eleanor Glaze, as defendant, to enjoin the threatened violation of covenants in a restrictive contract which had been entered into in the spring of 1926 by the above-named parties and the owners of other lots in block 12 of Oak Park addition to Oklahoma City. The plaintiffs alleged in their petiti...
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The petitioner, Carl A. Doll, has filed his petition in this court for a writ of habeas corpus, alleging that he is now confined in the State Penitentiary at McAlester; that said confinement is by reason of two commitments issued out of the district court of Muskogee county and two commitments issued out of the district court of Wagoner county. Petitioner first complains that he was brought from t...
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The petitioner, J. H. Tollison, is incarcerated in the penitentiary upon conviction in the district court of Pontotoc county upon four felony charges. The convictions were obtained in trials before the court sitting without a jury, and in the judgments it is provided that the sentences against the petitioner shall each run concurrently with the sentence pronounced in case No. 3288. The petitioner ...
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This is an original proceeding in habeas corpus, wherein the petitioner, Woody Vanderburg, seeks his release from imprisonment in the State Penitentiary. The verified petition filed herein alleges in substance that the petitioner has been committed to the State Penitentiary by reason of a certain judgment and sentence pronounced by the district court of Oklahoma county, in case No. 13136. That sai...
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The defendant, A. C. Donaldson, was charged in the district court of McCurtain county with the crime of rape in the first degree; was tried, found guilty, and sentenced to serve 15 years in the State Penitentiary, and has appealed. The defendant in his brief presents four assignments of error as follows: (1) Error of the court in overruling defendant's motion for a continuance. (2) Error of the co...
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*176The opinion of the court was delivered by This appeal is from a judgment sustaining a demurrer to plaintiff’s amended petition. On December 31, 1920, in the district court of Montgomery county, Mazel L. Sharp secured a decree of divorce against W. H. Sharp. The care, custody and control of the two minor children— a girl aged nine and a boy aged seven — were awarded the plaintiff. It was adjud...
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The opinion of the court was delivered by This petitioner presents an application for a writ of habeas corpus, seeking to be released from the state penitentiary where he is serving a term of imprisonment for the felonious crime of receiving and having in his possession stolen automobile tires of the value of more than $20, for which crime he was prosecuted, tried, convicted and sentenced in the d...
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*188The opinion of the court was delivered by In view of the public interest involved, this case was considered, decided, and the decision announced soon after it was heard at the July session. It was then stated that the opinion would follow at a later date. The action is an original proceeding in quo warranto, in which the plaintiff seeks to oust the defendant from the office of probate judge. T...
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*213The opinion of the court was delivered by This action purports to have been commenced pursuant to our declaratory judgment law (Laws 1921, ch. 168) to obtain an adjudication of the question whether a certain automatically operated pin ball marble amusement table constituted a gambling device under the laws of this state and the ordinances of the city of Atchison. The action was instituted by t...
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The opinion of the court was delivered by This is an appeal from a conviction for unlawful transportation of intoxicating liquor. Appellant contends that the verdict is not supported by substantial, competent evidence. On the morning of September 12, 1940, at about eight or nine o’clock, an auto was found wrecked in a ditch a few miles west of DeGraff in Butler county. It contained about 450 pints...
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The opinion of the court was delivered by This was an action by a member of a labor union against his employer for damages for alleged breach of a labor contract between the employer and a labor union of which the plaintiff was a member. The action originated in the city court of Wichita. The pleadings were plaintiff’s bill of particulars, to which was attached a copy of the contract between the ...
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*220The opinion of the court was delivered by Edgar Marden was sent to jail in Sedgwick county for contempt of court, and seeks his liberty through our writ of habeas corpus. . The cause was argued orally before this court in July and was submitted on the pleadings without briefs. The first of these pleadings is a petition to which are appended certain files and orders of the district court of Sed...
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The opinion of the court was delivered by This is a petition for a writ of habeas corpus by an inmate of the state penitentiary who seeks to be released from imprisonment. The petitioner was tried in the district court of Shawnee county in January, 1940, on an information charging him with selling unregistered securities, and containing six counts. Petitioner was found guilty on five of the counts...
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The opinion of the court was delivered by This is an appeal from the order of the district court of Leavenworth county denying application for a writ of habeas corpus to a petitioner, a prisoner in the state penitentiary. The sole basis of appeal is that a sentence for life in case No. 12,629 tried in the district court of Wyandotte county was excessive and the court was without jurisdiction to pr...
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The opinion of the court, was delivered by This is an original proceeding in mandamus to compel an apportionment of school moneys raised in Neosho county-under the so-called Barnes law, being chapter 397 of the Laws of 1905, as amended and now appearing as G. S. 1935, ch. 72, art. 30, and G. S. 1939 Supp. ch. 72, art. 30, in such manner that the plaintiff may participate therein. There is no dispu...
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*169The opinion of the court was delivered by This is a habeas corpus proceeding. The petitioner, an inmate of the state penitentiary at Lansing, filed his application for a writ of habeas corpus in the district court of Leavenworth county, where a hearing was had January 17, 1941, and the petition denied. The petitioner promptly appealed from that order, which appeal was filed in this court on Ja...
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The opinion of the court was delivered by This is an original action in quo warranto wherein the state, on the relation of the county attorney of Wyandotte county, asks that the county commissioners of Wyandotte county be ousted from exercising the power conferred upon them by chapter 375 of the Laws of 1941 to direct the county attorney of Wyandotte county to proceed to foreclose delinquent tax l...
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The opinion of the court was delivered by As authorized by G. S. 1939 Supp. 65-1010, the actions were brought to oust the defendants from the unlawful practice of medicine and surgery. The appeal in the Moore case No. 35,230 *194is from Barber county; in the Muecke case No. 35,252 is from Pratt county. The issues raised are similar and the cases were argued together at the bar of this court. It w...
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The opinion of the court was delivered by This is an original proceeding for a writ of habeas corpus by a prisoner in the state penitentiary. Attached to his application for the writ is a copy of the journal entry in the trial court showing that on a day named the applicant, as defendant, appeared in person and by two attorneys and upon formal arraignment entered a plea of guilty to the charge of ...
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Suit by Etta Deuchar against William R. Deuchar for divorce. From a decree for plaintiff, the defendant appeals. AFFIRMED. REHEARING DENIED. Suit for divorce. From a decree of divorce, an award of an undivided one-third interest in defendant's real property, an allowance of alimony in the sum of $1,500, together with $175 attorney's fees, and a judgment for costs and disbursements in favor of plai...
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Proceeding under the workmen's compensation act by Winona House, claimant, for the death of Marion N. House, her husband, who was employed by the Turner Chevrolet Company. From a judgment of the circuit court granting compensation, the state industrial accident commission appeals. REVERSED. Marion N. House, while on his way from Tulelake, California, to Portland, Oregon, to *Page 259 attend a zon...
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1 Reported in 117 P.2d 624. Plaintiffs, Cowiche Growers, Inc., and Yakima County Horticultural Union, co-operative corporations, and sixteen other corporations and firms, filed in the superior court for Thurston county a complaint and amended complaint, for the purpose of obtaining a declaratory judgment defining their rights, duties, privileges, and liabilities under the unemployment compensation...
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1 Reported in 117 P.2d 640. This is an appeal from the judgment of the superior court, setting aside an order of the department of labor and industries refusing to reopen a claim on the ground of aggravation of injuries. October 11, 1933, Clinton Calkins, while in the employment of the Wilson Bros. Company, a corporation, sustained an injury, consisting of a comminuted transverse fracture of the ...
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1 Reported in 117 P.2d 644. Under date of May 22, 1936, defendant, a foreign corporation, entered into a contract of insurance with plaintiff, under the terms of which defendant obligated itself to assume all liability not exceeding five thousand dollars for personal injuries to one person by reason of the ownership and/or use of a Dodge sedan owned by plaintiff. The insurer further agreed to inve...
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1 Reported in 117 P.2d 651. The plaintiffs, Kenneth Griffin and Vilma Griffin, husband and wife, instituted this action against the Evergreen State Amusement Corporation to recover for personal injuries which Mrs. Griffin sustained when she tripped upon an advertising sign in the lobby of a motion picture theater. By order of court, the Cascade Theatres Corporation was substituted as party defenda...
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The plaintiff, a tax-payer of the city and county of San Francisco, sought an injunction against the city, its board of supervisors, the housing authority of the city and its members, to prevent the performance of the provisions of certain contracts entered into pursuant to the Housing Authorities Law, and to have such contracts declared void. The court found for the defendants and entered judgme...
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This action was brought to recover a loss suffered by plaintiff by reason of damage to a ten-ton truck, which it had sold under a conditional sales contract to one Thomas on November 28, 1932. From a judgment *735 against both defendants and their two separate policies, both defendants appealed on separate records. At all times herein mentioned plaintiff will be referred to as...
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This appeal by Pacific Indemnity Company is from the same judgment as that affirmed by our decision this day filed (No. 16600, ante, p. 731 [117 Pac. (2d) 661]). Other points, however, raised by this appeal require separate consideration. 1. It is contended that the conditional judgment transforms appellant’s excess insurance to a suretyship for Detroit’s financial responsibility. Pacific argues t...
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By this proceeding in mandamus petitioner seeks to compel the respondent superior court to vacate a decree and to grant a trial de novo. In May, 1937, one Lucientes instituted an action in the respondent superior court against the Bartholomae Oil Corporation, petitioner here, to establish a trust interest in certain mining properties and for an accounting. Complaints in intervention were fi...
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This appeal is taken from a judgment for defendants upon a directed verdict returned by the jury in an action brought by the widow of Wilkens W. Wiswell to recover damages for the death of said decedent, who was killed when struck by an automobile driven by defendant Marvin P. Shinners, who at the time was acting as the agent and employee of defendant Harold E. Shugart Company. Upon completion of ...
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is an appeal by plaintiff from a judgment establishing and prorating the residue of a building loan among certain lien claimants. The owners of certain real property obtained a loan to construct buildings thereon and gave their notes and two first trust deeds to secure them. The property was later sold under the trust deeds. An unexpended portion of the loan fund amounting to $4650.53 rema...
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The appellant was jointly charged with Wayne Peyton, under section 211 of the Penal Code, with the crime of robbery accomplished by means of force and fear. Both defendants pleaded not guilty. In the progress of the trial, after much incriminating evidence had been adduced, Peyton withdrew his plea of not guilty and entered a plea of guilty of the offense charged. Neither defendant became a witne...
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The plaintiffs have appealed from an order transferring the above entitled action from the Superior Court of San Francisco to the Superior Court of the County of Lassen. The complaint contains 72 counts. There were 72 plaintiffs and 504 defendants. Two of the latter were corporations. Another was Clin S. Johnson, sheriff of Lassen County. Thirteen others were deputies of the sheriff. Each count, a...
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On June 1, 1933, Leroy and Anna Plolt, as owners, leased to respondent Cafe Apollo Company those certain premises in the city of Los Angeles, known and operated as Italian Village Cafe, for the term beginning on said date *152 and ending September 30, 1937. After expiration of said lease, respondent held over as a tenant from month to month, under the terms of the lease, until Apri...
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The plaintiff had a judgment against defendant Sanford restraining him from manufacturing or selling cactus phonograph needles made of and from cactus spines of the species, type and character manufactured by the plaintiff. Damages for the unlawful manufacture and sale of such needles were awarded plaintiff against this defendant in the sum of $2792. Judgment also went against the co-defendant ...
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Plaintiff appeals from an adverse judgment in a suit brought by him against defendant corporation and two of its employees. Defendant corporation in the year 1938 maintained its buildings and grounds on the top of a hill overlooking the premises occupied by plaintiff. On March 2, 1938, excessive rainfall amounting to 5.88 inches fell in twenty-four hours, and flood waters running down the hill dam...
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This appeal is taken by Drakes Bay Oyster Company, a corporation, from a judgment quieting plaintiff’s title to certain tide lands lying between the lines of ordinary high tide and ordinary low tide, and for $300 damages for appellant’s occupation and use of a portion of such tide lands for oyster culture during a period of three years. These tide lands lie within certain esteros or fingers runnin...
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Defendant appeals from a judgment for plaintiff in an action in equity to set aside a judgment in a former action in which the same plaintiff brought suit against the same defendant to dissolve a partnership and for an accounting. Plaintiff and defendant had been partners in the business of making and selling patented oilers. Less than one year after the partnership was formed plaintiff su...
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Appellant, executrix of the estate of Charles T. Burch, deceased, appeals from a judgment in the sum of $12,632.49, based upon the liability of decedent as an endorser upon two notes for $10,000 and $50,000 respectively. The notes were executed on April 18, 1932, by Western Hotel Company, a corporation, and were secured by a trust deed of certain Sacramento real estate. A default arose when the...
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On the evening of November 23, 1935, after attending the football game between Stanford University and the University of California, the parties hereinafter named were driving north on the Bayshore Highway between Palo Alto and Bedwood City. David Wheeler was driving a Chevrolet coupé. Miss Margaret Martin was seated at his right, Bichard Wheeler, his brother, was seated on the extreme righthand ...
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Plaintiff, after the death of the original defendant, made a motion to set aside an interlocutory decree of divorce on the ground of extrinsic fraud. From an order denying her motion plaintiff appeals. The motion was submitted on an affidavit of appellant and the oral testimony of Wm. T. Eckhoff who appeared as appellant’s attorney in procuring the interlocutory decree. It is appellant’s position ...
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The original complaint, filed May 3, 1938, was for rescission of a contract for the exchange of lands and for the cancellation of deeds or in the alternative for damages. It alleged that about May 5, 1933, plaintiffs (33 in number), owners of interests in certain properties in Ventura County, quitclaimed those properties to defendants in exchange for 3715 acres of land in Mexico; that defendants i...
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These are appeals from judgments in favor of defendant in actions to recover damages suffered *227 in an automobile collision which occurred shortly after eleven o’clock on the night of August 19, 1939, in the intersection of Tenth and Lime Streets in the city of Riverside. Tenth Street runs east and west and Lime Street north and south. Both streets were paved and were about 40 feet wide betwe...
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Application for a writ of supersedeas based upon the contention that the filing of an undertaking on appeals taken from the interlocutory and final judgments entered in a condemnation proceeding and from an order putting plaintiff in possession stays the operation of said judgments and order. It is our conclusion that where as here it appears that the plaintiff has complied with all the legal requ...
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The plaintiff commenced this action in the Superior Court of Marin County alleging that the defendant was the owner of certain real property situated in that county subject to a lien in favor of plaintiff for the payment of a monthly charge to plaintiff under the terms of a decree of distribution made in the Probate Court of the County of Sonoma, approving a devise under the will of the father ...
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This appeal by defendant is pre sented on the judgment roll alone, with no record of the evidence. From the findings, the following facts appear: Plaintiff is an insurance solicitor, and defendant an insurance broker, and plaintiff was employed by defendant for a time to work as solicitor for defendant. Prior to his employment by defendant, plaintiff had acquired a selective and confidential list...
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The plaintiff has appealed from an order quashing an execution on the ground that the judgment *249 debtor was relieved from liability by a subsequent adjudication of bankruptcy. The plaintiff and defendant were formerly husband and wife. There are three children as the issue of that marriage. The spouses were possessed of community real and personal property. The plaintiff commenced a suit f...
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This is an appeal by plaintiff from a judgment against her in an action to quiet title. Briefly, the facts are as follows: Plaintiff was the owner of certain described property incumbered with a trust deed which had been executed to secure a note in the sum of $5,000 issued by her in favor of one W. D. Van Nostran. The complaint alleged and plaintiff sought to prove that at the time of the tran...
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This was before this court previously (29 Cal. App. (2d) 722 [85 Pac. (2d) 548]). On retrial a judgment was granted to plaintiff. After a motion for a new trial was denied, notice of appeal was duly filed, and in due time a bill of exceptions was prepared and the proposed engrossed bill of exceptions was handed to the clerk of. the court on December 7, 1940. It was not presented to the judge who t...
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Plaintiff sued to quiet title to certain real property situated in the city of Albany. Plaintiff had judgment against all defendants but this appeal is prosecuted solely by defendant, city of Albany. Plaintiff deraigned title through a purchaser who had purchased the property at a tax sale held on September 1, 1938, under the provisions of section 3897 of the Political Code. The essential ...
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This action involves four financial transactions between directors of plaintiff corporation, all alleged to be part of a plan or scheme whereby one group would sell their stock and the other secure control of the company because of dissension between the two factions thereof. The retrial under the first count of the complaint involved defendants Luton, Cruiekshank, Ferguson, Lyon and Woodward. On...
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This is an action for damages for personal injuries alleged to have been suffered by three minor plaintiffs by reason of the dangerous and defective condition of a highway. A demurrer was sustained without leave to amend and the. plaintiffs have appealed from the judgment which followed. ' The accident happened on March 30, 1939. Verified claims for damages were filed on June 6, 1939, whic...
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The defendant was convicted and sentenced to five days’ imprisonment for driving a vehicle upon San Fernando Road, north of the Lankershim Boulevard intersection, at a rate of speed prohibited by the basic speed law. The basic speed law is set forth in section 510, Vehicle Code, in these words: “No person shall drive a vehicle upon a highway at a speed greater than is reasonable or prudent havi...
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1 Reported in 117 P.2d 753. This action was brought to quiet title to real property. To the amended complaint, which will be referred to as the complaint, the defendant interposed a demurrer, which was sustained. The plaintiffs refused to plead further, and elected to stand upon their complaint. From the judgment dismissing the action, they appeal. The facts, as stated in the complaint, so far as ...
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1 Reported in 117 P.2d 755. The history of the old age assistance claim which is the subject of this appeal may briefly be summarized as follows: Sanna D. Adams was granted an allowance of twenty dollars a month, beginning October 1, 1936, under chapter 182, Laws of 1935, p. 855 (Rem. Rev. Stat. (Sup.), § 9998-1 [P.C. § 6233-151]et seq.). The grant was canceled as of September 1, 1938, by the Pier...
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The opinion of the court was delivered by This was an action to foreclose a tax lien against real estate. Judgment was entered foreclosing the general tax lien and holding that a lien created by a special tax bill was concurrent with a lien for general taxes. The board of county commissioners appeals. The petition alleged that the taxes against 350 pieces of real estate in Wyandotte county were de...
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This is an action by the plaintiff, Ruth Thompson Hughes, against the defendants, Dr. Bizzell, President of the University of Oklahoma, and Dr. Patterson, Dean of the Medical School, to recover damages for conspiracy in causing her dismissal as librarian of the Medical School. The trial court sustained a demurrer to the petition, the plaintiff refused to plead further, and thereupon the court dism...
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Defendant in error, hereinafter referred to as plaintiff, commenced this action to recover damages against the plaintiff in error, hereinafter referred to as defendant, for creating a nuisance by allowing its septic tanks to become clogged, thus emitting a foul odor obnoxious to plaintiff which decreased the value of his real property. The court overruled the defendant's demurrer to the evidence a...
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Plaintiff, Dr. George A. Heffernon, sued the defendant, K.C. Higdon, in justice court to recover on a promissory note. He recovered judgment on January 24, 1939. Defendant appealed to the county court, his appeal being there docketed on April 18, 1939. The cause was tried in the county court on November 27, 1939, a jury being waived. The defendant objected to the admission of the note in evidence,...
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This case involves an appeal from an order dismissing an appeal by transcript from a judgment rendered by the justice of the peace, Oklahoma City district, Howard Boyer, in an action brought by the plaintiff, Clayton Fisher, against the defendants, Hurlin Johnson, Charles I. Codding, and others, for damages caused by wrecking of an automobile left in a parking lot of the defendant Charles I. Coddi...
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Benjamin F. Palmer, hereinafter referred to as plaintiff, instituted this action in the district court of Tulsa county against L.M. McLeod and Fidelity National Bank Trust Company of Kansas City, Mo., coexecutors under the will of Paul Arbon, deceased, and Fidelity National Bank Trust Company, of Kansas City, Mo., trustee under the will of Paul Arbon, deceased, and the First National Bank of Kan...
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This is an appeal by an individual taxpayer from an order of the Oklahoma Tax Commission denying a certain item claimed as a credit on her net income as shown by her income tax return for the year 1937. The item in question consisted of dividends received from a foreign corporation. The controversy arises under the income tax statutes of 1935 (art. 6, ch. 66, S. L. 1935), and particularly section ...
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Alexander Jamison, administrator of the estate of Charles Simons, deceased, brought an action, consisting of two counts, for damages for conscious pain and suffering and for death, against Cities Service Oil Company, a corporation. The superior court of Okmulgee county, upon the basis of a jury verdict, rendered judgment for the plaintiff, and the defendant prosecutes this appeal. Defendant filed ...
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In the trial court the defendant in error, as plaintiff, recovered judgment in the sum of $76.08, together with its costs against plaintiff in error, as defendant, and the latter has perfected this appeal. The principal amount of said judgment represents the plaintiff motor company's charges of $126.08 for repairing an automobile belonging to one Leo Shoemake, less a deduction of $50. The repairs ...
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Plaintiff in error was plaintiff below. The parties will be referred to herein in the same relation as in the trial court. Plaintiff commenced this action in the district court of Tulsa county. Her petition contains two causes of action. In the first cause of action she sought to have quieted title to a certain lot described as: "Lot 1, Block 1, Peoria Acres subdivision of the City of Tulsa, Oklah...
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This action was begun in the district court of Tulsa county by the defendant in error, Etta Lewis, against the plaintiff in error, city of Tulsa, Okla. The cause was tried to a jury and a verdict was rendered in favor of plaintiff in the sum of $591. From a judgment thereon defendant has appealed. The parties will be referred to herein as in the trial court. It is alleged in the petition and the p...
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This is an action for wrongful death. Judgment was rendered on a directed verdict for defendant, and plaintiff appeals. The deceased was employed by defendant as a pumper on one of its oil leases. He and his 14-year-old son were found dead inside a small stock tank located on the lease, apparently asphyxiated by the poisonous gases arising from the crude oil and other substances, commonly called b...
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This action was commenced in district court by J.A. Bourquin, the plaintiff in error, against John R. Feland, Tom P. Farmer, and others to recover on a promissory note and to foreclose the mortgage security. Feland was the mortgagor, and Farmer claimed title to the premises by virtue of a sheriff's deed given pursuant to sale on execution of an alleged prior judgment against Feland. In his cross-p...
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This is an appeal from an order sustaining a motion for new trial. The plaintiff, Norwood, sued for damages for personal injuries and injury to his truck caused by a collision between his truck and a train of defendant in the town of Ft. Gibson. It appears from the record that plaintiff ran his truck into the side of the train as it was moving across the highway. The act of negligence charged in p...
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Plaintiff, Gay N. Rosier, instituted this action against defendant, Metropolitan Life Insurance Company, in the court of common pleas of Tulsa county. Plaintiff sought recovery of certain indemnity provided in a double indemnity feature of a life insurance policy, of which she was the beneficiary. Issues were joined, the cause was tried to a jury and a verdict was returned in favor of plaintiff. F...
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For clarity and brevity the defendant in error and plaintiff in error will be referred to herein as plaintiff " and "defendant," respectively. The undisputed facts out of which the controversy between the two parties arose are substantially as hereinafter related. In September, 1935, plaintiff, who is in the business of drilling and producing oil and gas wells, drilled a producing gas well upon a ...
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This is an original action instituted in this court by James M. Kurn and John G. Lonsdale, as Trustees of the Estate of the St. Louis-San Francisco Railway Company, hereinafter referred to as petitioners, to review an award of the State Industrial Commission entered against petitioners and in favor of Lloyd Clifton Wheeler, hereinafter referred to as respondent. Respondent was employed by petition...
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Boy Booth and Howard E. Kemp were jointly charged in the district court of Love county with the crime of forgery in the second degree in six different cases. At the request of the defendants!, the cases were consolidated, and all of the evidence presented to the same jury, which returned separate verdicts of guilty against each defendant in all six cases. The defendant Boy Booth was sentenced to ...
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Petitioner, S. A. Berrie, is now confined in the penitentiary at McAlester, where he is serving a life sentence from Muskogee county for the murder of his wife. He was convicted and sentenced in October, 1932, and in his petition for writ of habeas corpus he contends: "First. That the state wholly failed to prove beyond a reasonable doubt that a crime had been committed. "Second. That there was no...
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Defendant was charged in the county court of Pittsburg county with the crime of unlawful possession of intoxicating liquor, to wit: six pints of gin, six pints of whisky, and four half-pints of whisky, mixed brands; was tried, convicted and sentenced to pay a fine of $100 and to serve 60 days in jail, and has appealed. The main ground relied upon by defendant for reversal of this case is that the ...
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The defendant, Lawrence Yates, was charged in the district court of Woods county with the crime of assault with a dangerous weapon, was tried, convicted of assault and battery, and sentenced to serve 30 days in the county jail and pay a fine of $75 and costs; and he has appealed to this court. Counsel for defendant have set forth several assignments of error in their petition in error filed herein...
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The complaint seeks damages for the alleged wrongful death of plaintiff's intestate, arising out of a collision of a truck driven by the deceased and one driven by an employee of the defendant. It affirmatively appears from the complaint that the defendant's truck was engaged in business as a common carrier at the time of the accident. The plaintiff is the administratrix of the estate of the deced...
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This is an appeal from the ruling of the District Court of Iron County, Utah, denying to Vincent Mulliner, plaintiff *Page 52 and appellant, his discharge from the custody of defendant William M. Dalton, Deputy Sheriff of Iron County, Utah. The ruling was the termination of a hearing upon writ of habeas corpus issued by that court. The record of the case shows these facts by stipulation: July 30,...
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delivered the opinion of the court. This is a workmen’s compensation case in which the Industrial Commission awarded compensation to plaintiff in error Elizabeth Bell Finn, as the widow of a deceased workman, killed while employed in a coal mine on land owned by defendant in error Mason, part of which was leased for mining purposes to defendant in error Walter Casselman and by him to his son Wa...
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In this proceeding under the Workmen's Compensation Act the following finding of the Industrial Commission was challenged by counsel for claimant as not being based upon competent evidence: "That the claimant has failed to establish the burden of proving that the decedent's death was in any material way hastened or brought about by the operation for the reduction of the umbilical hernia sustained ...
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THIS case involves the question of awarding a widow's allowance under the statute. Plaintiff in error, claimant, is the widow of decedent, Charles F. Griffee. On the day of their marriage, shortly before the ceremony, she and Griffee entered into a written contract whereby she allegedly waived any claim or right to such an allowance. Both county and district courts held that Mrs. Griffee had waive...
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Action under the Jones Act by Erwin Fitze against the American-Hawaiian Steamship Company to recover for personal injuries alleged to have been sustained by plaintiff in the course of his employment. From an order setting aside a judgment for plaintiff and granting a new trial, the plaintiff appeals. AFFIRMED. REHEARING DENIED. This appeal is from an order setting aside a judgment for plaintiff an...
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Action by H.D. Newlee and wife against J.F. Heyting for damages for failure of the defendant to construct a dwelling house for the plaintiffs in good workmanlike manner. From an adverse judgment, defendant appeals. AFFIRMED. H.D. Newlee and Elaine I. Newlee, his wife, brought this action to recover from the defendant, J.F. Heyting, damages for the failure of the defendant to construct a dwelling h...
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Proceeding in the matter of the estate of Ida May Buell, deceased, by Ruth Lenore McKinley against Mary Allen, administratrix of the estate of Charles L. Brush, deceased, and others, to determine the heirs and distributees of the estate of Ida May Buell, deceased. From a decree in favor of plaintiff, defendants appeal. AFFIRMED. The plaintiff seeks a decree determining the heirs and distributees o...
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Plaintiffs, husband and wife, commenced this action against defendants for damages for injuries sustained by plaintiff, Pearl Hatfield, from a fall in defendants’ mercantile store, alleged to have been caused by the negligent maintenance of the floor. Defendants denied that they were negligent and pleaded the defense of contributory negligence. A jury trial was had resulting in a verdict for pl...
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The Industrial Accident Commission having made its award in the sum of $2114.50, which was paid, to plaintiff for injuries sustained by him in the course of his employment by defendants, he subsequently instituted this action for damages. The Labor Code authorizes such an action where the employer fails to carry compensation insurance. After 21 days of trial, the jury returned a verdict in plai...
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Pursuant to an order issued by The State Bar of California, the petitioner, Clifton Hildebrand, an attorney at law, was directed to appear before Special Local Committee No. 3 for the county of Alameda on or about July 18, 1939, then and there to show cause why he should not be disciplined for alleged professional misconduct on four separate charges as set forth in the said order. The charges con...
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This is an appeal from a judgment entered in a quiet title action. Judgment went against plaintiff, Louisa S. Valle, on her complaint and in favor of the defendant and cross-complainant, Minnie H. Ingram, quieting the latter’s title to an undivided one-third interest in the real property here involved. The effect of the decree is to leave a two-thirds undivided interest in the plaintiff. The cros...
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Plaintiff, an illegitimate child, brought an action through her mother, her guardian ad Mem, against the defendant for support and a judicial declaration of paternity. The trial court issued an order directing defendant to show cause why he should not pay support, court costs, and attorney’s fees pending determination of the action. Upon defendant’s objection that the court had no jurisdiction ...
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This is an appeal from an order refusing to vacate the interlocutory and final decrees of divorce entered in the above-entitled cause. The action was commenced in Los Angeles County on October 11, 1923. An order for publication of summons was procured upon the affidavits of plaintiff and her counsel that after due diligence defendant could not be found within the state. Summons was duly publish...
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The plaintiff brought an action to quiet title to certain lots in the city of Newport Beach, county of Orange. In the complaint it alleged that the defendant claimed some interest in the real property adverse to the plaintiff. The defendant, C. P. Warden, filed a verified answer denying ownership in the plaintiff, and alleging ownership in himself. He prayed that the plaintiff take nothing by the...
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The defendants, Civil Service Commission of the City and County of San Francisco et al., appeal from a declaratory judgment decreeing that plaintiffs are the holders of permanent civil service positions as *853general clerk stenographer in the public welfare department of the city and county, and ordering their reinstatement in such positions, and the payment of their salaries at the rate of $150 ...
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The defendants, George D. Howland and Annie E. Howland, have appealed from a judgment for the plaintiff Lotus Howland in an action to quiet title to certain land situate in the county of Los Angeles. The same defendants also appealed from an order of the trial court terminating all proceedings on the appeal. The plaintiff moved to dismiss the appeal from the judgment. That motion was denied for th...
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An indictment was found against appellant, which consisted of three charges of statutory rape. For obvious reasons, the real names of the prosecuting witnesses do not appear in this opinion. Three of said charges wrnre alleged to have been committed upon Jane Doe; twm of said charges upon Elsie Roe; five of said charges upon Mary Black; and five charges of a violation of section 288 of the Penal ...
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This appeal is upon the judgment roll. Having attained the age of eighteen months, plaintiff through the guardianship of her mother, Natalie Fernandez, sought by this action to establish the fatherhood of defendant. *309 The complaint alleges, and the court has determined that during the period of about four and one-half months following January 22, 1938, Natalie “at various and sundry time...
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This appeal presents the question whether a tax lien created by statute against the property of a distributor of gasoline takes precedence over the lien of a chattel mortgage thereon, where the tax accrued and became a lien subsequent to the recording of the chattel mortgage. A further question is whether the lien of the chattel mortgage had ceased to exist when the tax lien attached. If it had it...
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This appeal follows judgment after an order sustaining demurrer without leave to amend. The action arose upon a petition for a writ of mandate. On June 14, 1926, petitioner resigned as concrete foreman of the Bureau of Engineering, city of Los Angeles. April 25, 1935, he filed his request for reinstatement with the Civil Service Commission. April 29,1935, pursuant to said request and the r...
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Plaintiff brought an action under section 749 of the Code of Civil Procedure to quiet title and determine adverse claims to certain real property, alleging that for more than twenty years he had been in actual, exclusive and adverse possession thereof, had continuously paid all taxes thereon, and claimed to own the same in fee “against the whole world. ’ ’ He further alleged that he purchased t...
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Petitioner seeks release from confinement in the county jail through habeas corpus. In answer to the writ, the sheriff filed his return, which shows that the authority for detaining petitioner is based upon the following order of the court: “The court orders motion for modification of the divorce decree denied, both as to the custody of the child and the amount of the monthly payments, and further...
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The plaintiff and cross-defendant appeals from a judgment in favor of defendant and cross-complainant rendered in an action to quiet title to real property registered under the Torrens Act (Stats. 1915, p. 1932, Deering’s General Laws, Act 8589). Plaintiff also attempts to appeal from an order denying a motion for a new trial, from which there is of course no appeal. Defendant is a Michigan ban...
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This action was brought to recover the sum of $9000 alleged to be due upon a promissory note executed by defendant. The latter filed a cross-complaint to annul said note, upon the ground that it was without consideration. Findings were made in favor of defendant, and judgment was entered that said note and a chattel mortgage given to secure the same were invalid, and it was ordered that said inst...
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In an information filed by the district attorney defendant was accused in count 1 of a violation of subdivision 2 of section 337a of the Penal Code, which denounces as a crime the keeping or occupancy of a place with books, papers, devices or paraphernalia for the purpose of record *333 ing or registering bets or wages upon the result of any horse race. Count 2 charged a violation of subdivisio...
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Petition to annul an award of Industrial Accident Commission, fixing the amount of death benefit due the widow and minor children of Ernest F. Ensley. The sole question presented is the method or basis of computation used by the commission in arriving at the weekly disability indemnity and the total death benefit. The right to raise such question in this proceeding is not in dispute. Ensley was ki...
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This an original application for a writ of mandate. Petitioners own property in Stockton, San Joaquin County, upon which taxes were allowed to become delinquent in 1932, 1933, 1934 and 1935, for a total amount of $8439.58, including penalties. Commencing in December, 1936, petitioners have duly followed the ten year payment plan of redemption now covered by sections 4256 to 4263 inclu...
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This is an appeal by plaintiff, Nathan Leff, from a judgment for the defendant, William Knewbow, in an action brought by plaintiff to renew a judgment in the sum of $10,000 in his favor against said defendant William Knewbow, dated June 14, 1934. Such prior judgment was rendered in an action brought by plaintiff against said defendant William Knewbow and two other defendants, based on the alleg...
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The plaintiffs have appealed from a judgment quieting title in the defendant and cross-complainant, Ruth S. Whitmore, to an easement of a private roadway across a portion of the property of plaintiffs, acquired by adverse use thereof. The appellants assert that the findings and judgment are not supported by the evidence for the reason that it was not affirmatively shown that the use of the...
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Plaintiff commenced this action to recover on an insurance policy issued by defendant. Defendant filed its cross-complaint demanding rescission of the policy on the ground of fraud. Plaintiff recovered the sum of $500, the face amount of the policy. From the judgment defendant appeals. The court found as facts that on October 10, 1938, one Beaty, a solicitor of defendant, called at plainti...
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The petition for the issuance of an al ternative writ of mandate is denied upon the following grounds: That section 583 of the Code of Civil Procedure upon which the petition is based does not apply to and may not be invoked for the dismissal of exceptions filed to the final account of an executor or administrator; That in any event under the authorities cited by respondent in opposition to the is...
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Plaintiff brought this action on May 9, 1939, to recover a portion of the money paid by him to the defendant under the system of redemption of property from sale for delinquent taxes and assessments under what is known as the “Ten Payment Account.” (See secs. 3817c, 3817c2, 3817c3, 3817c4, 3817c5, Political Code.) A demurrer to the complaint was sustained with leave to amend. Plaintiff declined t...
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Plaintiff appeals from a judgment in favor of defendant Judith C. Newberger quieting her title in certain lands situate in Los Angeles County, California, and declaring her to be the lawful owner of such lands as her separate property. Mrs. Newberger’s defenses to this action were: (1) denial of plaintiff’s claim of ownership, and (2) that defendant Schneirow, as trustee for Mrs. Newberger, rec...
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Plaintiff appeals from a judgment after verdict against her in this action for damages on account of the alleged wrongful death of her minor child, Teddy. Motion for a new trial seasonably made was denied by the expiration of 60 days from the date of filing of the notice of intention to make the motion. The ground specifically relied upon for the new trial was the conduct of certain jurors in v...
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Plaintiff appeals from an order vacating a summary judgment which had been granted upon its demand. That judgment was vacated twelve days after its entry upon the ground of fraud in its procurement. *304 The factual background out of which the instant controversy arose is as follows: February 13, 1940, plaintiff and defendant entered into an agreement whereby plaintiff sold t...
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The facts of this case are the same as those set forth in our opinion in Security-First National Bank v. Hauer, No. 13125, ante, p. 302 [117 Pac. (2d) 952], this day filed., Defendant has attempted to appeal from the judgment entered on January 8, 1941, in favor of plaintiff. That judgment, however, was regularly set aside on defendant’s own motion on January 20, 1941. As a result the attempted ap...
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1 Reported in 117 P.2d 959. [1] In this cause, we are met at the outset by a motion, set forth in respondent's brief, to strike the statement of facts upon the ground that there are not included therein "the complete record and all the proceedings and evidence in the cause." It is said that it nowhere purports to show the examination of the jury, or the addresses to the jury, or the opening statem...
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1 Reported in 117 P.2d 963. Plaintiff brought this action to recover damages for injuries sustained when she was struck by an automobile driven by defendant Cameron W. Ostrom. From a judgment entered on the verdict of a jury in favor of plaintiff, defendants appeal. [1-5] The sole question to be determined is whether respondent was guilty of contributory negligence as a matter of law. In approachi...
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1 Reported in 117 P.2d 966. In 1935, the Consolidated Freight Lines, Inc., acquired, as a freight depot site, lots 7 to 11, inclusive, in the south half of block 9 of Nosler's Addition to the city of Spokane. Lots 9, 10, and 11 were purchased from Spokane county. All the lots were unimproved, and, so far as a visual ground inspection would disclose, appeared to be full-sized, but 10 and 11 were, i...
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Proceeding by Osmer L. Latham to recover unemployment benefits, opposed by the Cobbs Mitchell Company, employer. From a judgment sustaining an order of the State Unemployment Compensation Commission denying the claim, claimant appeals. AFFIRMED. The plaintiff, a former employee of the Cobbs Mitchell Company, a corporation which was engaged in the business of logging and the manufacture of lumber...
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[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 381 [EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 382 Unemployment compensation proceeding by Thomas Layman, opposed by the Crown Zellerbach Corporation. From a dec...
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[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 318 Action by Clyde L. Kiddle against S. Schnitzer and others for personal injuries. Judgment for defendants, and plaintiff appeals. *Page 319 AFFIRMED. REHEARING GRANTED AND FORMER OPINION ADHERED TO. The plaintiff, Clyde L. Kiddle, instituted this action a...
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The first issue presented to the trial court in this cause under a short form of complaint was a request to quiet title to lots 3 and 4, Plat D, Salt Lake City Survey by the plaintiff who claimed ownership based on a tax deed to one of the lots and a deed from a third party whose claim was based upon a tax deed to the other lot. The complaint contained the usual prayer that defendant set forth the...
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My dissent is based upon Doolittle v. Eckert, 53 Idaho 384,24 P.2d 36....
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HORACE B. TODD, defendant in error here, brought an action against plaintiff in error Staples, the record owner, and others, to quiet title to certain real property, basing his right to bring the action on a certain treasurer's deed to the premises which he had obtained from the proper officials. Default was taken against all defendants except Staples, who contested the action, but against whom ju...
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THIS case is one involving garnishment proceedings subsequent to judgment. Plaintiff in error Keck, as administrator to collect of the estate of Augusta Sauer, deceased, was the judgment creditor; defendants in error Michael and Elizabeth Vogt were the debtors, and I. D. Atkinson, claiming an interest in the subject of the controversy, appeared as intervener and also is a defendant in error here. ...
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delivered the opinion of the court. Defendant in error, plaintiff below, brought an action under the Unfair Practices Act (S.L. 1937, c. 261) to enjoin plaintiffs in error, defendants below, from violating the provisions thereof. The injunction was granted, and reversal of the judgment is sought on a writ of error. Reference will be made to the parties as in the trial court. From the record it app...
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IN this action, Electrical Products Consolidated, plaintiff in error, to which we hereinafter refer as plaintiff, seeks an injunction against W. Q. Howell, defendant in error, hereinafter designated as defendant, restraining him from violating an express covenant contained in a contract of employment as a salesman. Defendant demurred to the second amended complaint on the ground that it does not s...
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Defendant in error, Georgia Ensign, brought this action against defendants in error O.E. Hunt, William C. Stighman, Pearl Stighman, and the city of Tulsa, to recover damages suffered by her as a result of tripping over a wire which was stretched along the east side of a driveway leading from the street to the sidewalk. The property is located at 711 W. Fourth street in the city of Tulsa and was ow...
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Plaintiffs in error, hereinafter referred to as plaintiffs, have perfected this appeal from an order sustaining a demurrer to their petition for an alternative writ of mandamus *Page 399 against the defendant in error, hereinafter referred to as defendant. The facts alleged in the petition and accepted as true for the purpose of deciding the question submitted are substantially as hereinafter rel...
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This is an action by the administrator of a decedent's estate *Page 502 against his intestate's widow to cancel as in fraud of creditors certain deeds executed by deceased to the defendant. The petition alleges that the estate is indebted to certain parties by reason of a judgment theretofore obtained, and that aside from the lands conveyed to defendant as aforesaid there were no assets from whic...
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