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All Reporters → p2d → Volume 155

Opinions in p2d Volume 155

This is a mandamus proceeding instituted in the Superior Court of Yuba County to compel the county treasurer of that county to pay to petitioners certain bonds and accrued interest thereon out of funds available in the bond fund of Reclamation District No. 784 on deposit with said treasurer. Reclamation District No. 784 was organized in 1907 under sections 3446 to 3493 of the Political Cod...
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25 Cal.2d 664 (1944) S. KULAWITZ, Respondent, v. THE PACIFIC WOODENWARE AND PAPER COMPANY (a Corporation), Appellant. S. F. No. 16882. Supreme Court of California. In Bank. Dec. 30, 1944. Fitzgerald, Abbott & Beardsley and Chas. A. Beardsley for Appellant. George P. Marshall and Alfred Nelson for Respondent. *667 SHENK, J. This is an appeal by the defendant from a judgment in its favor...
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In these two actions plaintiff, as administratrix of the estates of Thatcher and Utterback, recovered judgments in the trial court for damages under the Federal *607Employers’ Liability Act as the result of the wrongful deaths of decedents. (45 U.S.C.A. § 51 et seq.) Decedents were killed in Portland, Oregon, while in the employ of defendant railroad company. They and their heirs were residents of...
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On January 23, 1937, plaintiff and his wife, by “Partial Assignment of Lease” assigned to defendant corporation a certain oil and gas lease dated July 2, 1928, between the United States of America, as lessor, and plaintiff, as lessee. Insofar as said lease pertains to and affects a portion of the lands originally demised under the “Partial Assignment” defendant agreed to make application to the S...
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In an information filed on May 18,1942, the defendant was charged with the crime of forgery in that he signed another man’s name to a check payable to himself and cashed the check. On June 3, 1942, he appeared in court with his counsel for the purpose of arraignment. He pleaded not guilty and the setting of the trial was continued to June 8,. 1942. On June 15, 1942, he came into court with his ...
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Plaintiff and respondent brought this action to partition certain real property under the provisions of *593section 752 et seq. of the Code of Civil Procedure. It is alleged that plaintiff and defendant Redlands Security Company, a corporation, hereinafter referred to as the company, are the owners as tenants in common of the real property described in the complaint; that plaintiff is the owner of...
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This is the first appeal mentioned in the opinion this day filed in People v. Sauer, ante, p. 664 [155 P. 2d 55]. *674This appeal was taken from the order entered on May 12, 1944, denying appellant’s various motions, the appeal being based on the ground that the court had erred in summarily denying these motions without a proper hearing and without producing the appellant in court, although an ord...
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This is an appeal from a judgment of dismissal after a demurrer to the first amended complaint had been sustained without leave to amend. The action involves the right of the appellant to share in the income from a trust fund established by the decedent, it being conceded that she *604 is entitled to one-half of the corpus of the trust estate at the termination of the trust. H...
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The Pioneer Provision Company, a manufacturer of meat products, hereinafter referred to as the shipper, employed the defendant, a common carrier by motor trucks, to transport 7,598 pounds of chilled fresh sausage from Los Angeles to Camp Roberts, an army camp near San Luis Obispo. By reason of heavy rainfall which caused the highway to be closed, the defendant did not send the sausage forward i...
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This is a proceeding in eminent domain commenced by the People of the State of California acting by and through the Department of Public Works to acquire certain property for the relocation of a state highway. Trial was had by the court without a jury. Defendants and appellants are the fee simple owners of a small tract of land known as Boulder Park, containing about 70 acres, located at the cres...
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This is an appeal by the contestant of a will from an order admitting that will to probate after trial of a will contest before the court sitting without a jury. Laura Schwartz, the deceased, lived at Los Angeles, where she- died on December 18, 1942, at the age of seventy-four years. Her sole surviving heirs at law were two sons, Harold I. Schwartz and Bernerd Schwartz. Both sons were married ...
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The executor of the last will of John D. Van Ormer, deceased, has appealed from a judgment reforming a lease of real property and awarding plaintiffs judgment for return of $1,862.50 paid to the deceased as rental advanced pursuant to the terms of the lease, which was to be refunded in the event of sale of the property before the crops were planted. John D. Van Ormer lived at Turlock and owned ...
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By stipulation of the parties to the above entitled actions, which were consolidated by order of the trial court, this appeal is submitted on the record in the Will case, it being agreed that the complaints are identical except as to the names of the parties and the locations of their businesses, and that the same judgment was rendered in both actions. . Plaintiffs’ amended complaints alle...
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Petitioner, in a petition for writ of mandamus before this court,- alleges that he is plaintiff in an action filed in the Superior Court of Sacramento County, against the State Board of Equalization and its members, in which action he “seeks a review by way of trial de novo under the provisions of sections 46 and 47 of the Alcoholic Beverage Control Act of the actions and decisions” of the boar...
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This is an appeal by Barry Sullivan, one of the defendants, from a temporary injunction restraining him, pending the trial of the instant action in the superior court, from causing to be tried three certain actions which had been instituted by him and others in the justice’s court. The complaint is not in the record but the parties agree that the action is one to determine title and the right o...
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This is an appeal by Charles Wellborn from an order quashing a writ of execution and setting aside an execution levy and sale of real property. In 1939 plaintiff herein was awarded a judgment annulling her marriage to Charles Wellborn and adjudging her to be the owner of certain residence property situated in the city of Los Angeles. The defendant was awarded a lien on the property for $1,250, wit...
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Defendant was accused of the crime of murder. A jury found her guilty of murder of the first degree and fixed punishment at life imprisonment. Her motion for a new trial was denied, and she was sentenced to life imprisonment. Defendant appeals from the verdict, from the “judgment” denying her motion for a new trial, and from the sentence. Defendant contends: (1) that the evidence was insufficie...
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This is an appeal from an interlocutory decree in an' action for the partition of. real property situated in several counties. An agreed statement constitutes the record on appeal. .The parties appearing in the trial court consisted of plaintiff, Louise C. Maud, a grandchild, and named as defendants, certain grandchildren, the trustees for certain other grandchildren, and two great grandchildre...
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The instant appeal was taken from an order interpreting the will of Maria Thramm. The will disposed of the estate which remained after the payment of debts and expenses as follows: “To Mr. Ernst and Walter Thramp now living in Berlin Germany, 37 Steinmetz Str $2000 each and if they be deseased to their heirs. Also my husband’s watch, his mother’s diamoi ring, cuff buttons and old ring should go...
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This is an appeal from a decree denying appellant’s petition to have the estate of Najeeb M. Malouf set aside to her. Appellant is his widow and Viola Malouf is their minor daughter who was made a beneficiary under the will of deceased. It was found by the trial court that the total value of the estate of deceased did not exceed $2,500, and that appellant’s estate did not exceed $5,000 in ...
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This is an appeal from a judgment of dismissal following the court’s action in sustaining defendants’ demurrer without leave to amend. The complaint alleges that plaintiff corporation has owned, maintained and operated a retail paint store in the city of Los Angeles as an incident to the business in which such plaintiff is engaged. The store is located on Santa Monica Boulevard in a two story fram...
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Plaintiff brought this action under the admiralty jurisdiction of the superior court to recover damages for injuries alleged to have been sustained when he slipped and fell on a landing or float, owned and maintained by defendants, after he had disembarked from a tug operated by defendants which had transported him from Vallejo to Mare Island, where he was employed by defendants as a pile drive...
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This is an appeal by defendants doing business under the name of Basich Bros., a partnership, from orders of the trial court denying its motion for judgment notwithstanding the verdict and for a new trial, and from the judgment entered by the court pursuant to the verdict of the jury. The plaintiffs Don Mullanix and Julian C. Berry, by their joint complaint, alleged that about 3:30 o’clock...
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Plaintiff-appellee Dominguez brought suit and, upon trial to jury, recovered from defendant-appellant judgment in the sum of $5,000 for personal injuries allegedly suffered when she stumbled over or at a step at the entrance to appellant's bus station at Santa Fe. The negligence charged against appellant was that of maintaining a step one and three-fourths inches in height at the immediate front d...
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DEFENDANT in error was the plaintiff in the trial court and will be so referred to herein. As lessee and optionee under a contract covering 640 acres of land in Saguache county, he brought suit against the lessor-optionor for specific performance, alleging tender of the purchase price and seeking conveyance of the land described in the contract. The wife of the lessor thereupon intervened, claimin...
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delivered the opinion of the court. This action was initiated under the declaratory judgment statute, article X, chapter 93, ’35 C.S.A. (Rule 57 R.C.P. Colo.), by. a group of labor organizations, their officers and individual members,' plaintiffs in error here, hereinafter to be called the plaintiffs, against the members of the Industrial Commission of Colorado and Attorney General of Colorado, to...
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delivered the opinion of the court. Plaintiff in error is hereinafter referred to as Wood, and defendants in error as the commission. Wood, contending that under the law and the rules of the commission he was entitled to appointment as superintendent of the State Industrial School for Boys at Golden (hereinafter referred to as the school) brought this action in mandamus to compel his appointm...
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Plaintiff in error here, James E. Roberts, was plaintiff in the trial court, and defendants is error, George F. Roberts and Ernest W. Roberts, doing business under the firm name and style of the Roberts Brothers Cattle Company, were defendants in an action begun in the district court for a partnership accounting and specific performance. James Evan Roberts, plaintiff in error, was the plaintiff, a...
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THIS is an industrial commission case in which the commission, and Harold T. Williams to whom we hereinafter *Page 63 refer as claimant, seeks review of a judgment of the court below denying compensation to claimant for injuries allegedly received while working as an employee of the Hayden Coal Company, one of the defendants in error. The referee by formal award allowed compensation, which was ap...
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Note. In the published opinion in this case which appears in volume 113 of the Colorado Supreme Court reports beginning at page 62, the last line on page 66 should read as follows: Mr. Justice Hilliard and Mr. Justice Jackson dissent....
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THIS action was begun in the district court to compel the specific performance of a contract which the plaintiffs alleged was entered into between them and the defendant, and for certain injunctive relief. The district court entered its judgment and decree in favor of the plaintiffs, to review which, defendant prosecutes this writ of error. The plaintiffs are Carmela Martini, Harold Ralya, J. M. J...
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Appeal from a judgment dismissing petition for writ of habeas corpus and from an order denying any relief thereunder, after hearing in district court. The application for the writ alleges, in substance, the following: Petitioner was found guilty of burglary in the second degree and of being an habitual criminal after trial by jury before the Hon. A.H. Ellett, district judge; and on or about Novemb...
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This is an appeal from a judgment entered upon a verdict of a jury in favor of plaintiffs and against the defendant. The action was brought upon a policy of insurance issued by the defendant upon the life of Garber M. Nichols, now deceased. The policy provided for the payment of a death benefit of $1,000, and in the event of accidental death, within the provisions of the policy, an additional $1,0...
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Plaintiffs appeal from a judgment of dismissal following the entry of an order sustaining a demurrer on various grounds of misjoinder, multifariousness and uncertainty, and from an order striking certain allegations of the complaint. The trial court overruled those grounds of demurrer which assert that the complaint fails to state facts sufficient to constitute a cause of action. There is no cross...
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This case arises out of Mountain States Telephone TelegraphCo. v. Public Service Commission, 105 Utah 230, 142 P.2d 873, rehearing denied 105 Utah 266, 145 P.2d 790, wherein this court reviewed by certiorari an order of the commission reducing toll rates charged by the utility for intrastate service. We set aside the order of the commission and remanded the case to it. At the time the petition fo...
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Relator was found guilty of contempt of court by Arthur M. Woods, justice of the peace of Hellgate Township, Missoula County, and brought the matter before the district court of that county by an affidavit for writ of review (certiorari). The district court's judgment in the certiorari proceeding found the justice court's action valid, and relator has appealed from that judgment. The writ of revie...
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By his first cause of action plaintiff seeks recovery of the sum of twenty dollars per month during the period May 18, 1934, to January 22, 1941, as the reasonable value of the alleged use and occupancy by the State Liquor Control Board of certain premises in the town of Ennis, Montana, as a liquor store and warehouse. By his second cause of action plaintiff claims recovery of the sum of $1,986.04...
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This is a contempt proceeding. *Page 440 Respondent, George Niewoehner, is an attorney at law admitted and licensed by this court to practice before it. On Saturday, October 7, 1944, respondent came to the office of the clerk of this court and there delivered for filing and presentation to the court a typewritten motion. He also left with the clerk five copies of such motion. The motion reads: "I...
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Decided October 4, 1943. In accordance with stipulation of counsel the appeal herein is dismissed....
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Decided November 23, 1943. The writ prayed for is denied....
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Decided November 26, 1943. The writ applied for is hereby denied....
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Decided November 4, 1943. Relator's petition for writ of mandate is denied....
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The writ prayed for is denied....
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Decided December 23, 1943. *Page 605 The above application for a writ of supervisory control is denied....
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Decided December 8, 1943. The writ applied for herein is denied....
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Decided July 10, 1943. On motion of appellant Martin the appeal herein is dismissed....
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Upon request of the above named defendants (appellants) that their appeal herein be dismissed, it is so ordered and the appeal is accordingly dismissed. ...
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Decided June 30, 1943. The petition of relator is denied....
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Decided May 12, 1943. The above application for writ of habeas corpus is denied....
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This action involves the title to 880 acres of land in Blaine county, sold to the county at a tax resale and later sold to appellant, A.N. Goode, at a county sale. In September, 1928, the land was mortgaged by Andrew Charles Montgomery and wife to the Commissioners of the Land Office to secure a loan of $7,000. In October, 1938, the state on relation of the Commissioners of the Land Office commenc...
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There is presented here the validity of resale tax deeds and the proceedings of sale supporting same. The land involved is two city lots separately assessed. Upon both lots there is a single substantial business building. The lots are properly described as lots 18 and 19, block 3, Caldwell's addition to Oklahoma City, Oklahoma county, Oklahoma, as shown by the recorded plat thereof. The county pur...
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This is an appeal from an adverse judgment in an action wherein plaintiff in error was plaintiff below. The parties will be referred to in the same relation as in the trial court. Plaintiff is a copartnership composed of N.T. Smith and W.P. Smith, engaged in the business of drilling wells for oil and gas. Plaintiff drilled a well for Donmar Oil Corporation on a tract of land in Seminole county, le...
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The plaintiff, Dorothy Ann Key, filed her action in the district court of Garfield county, Okla., alleging that she was the owner in fee simple and in possession of the property described as: All of Lot Ten (10) and the West Half of Lot Eleven (11), Block Two (2), Waverly Second Addition to the City of Enid, Oklahoma. – and attached to her petition copy of the deed which was duly recorded and by w...
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This is an appeal from an order confirming sale of lands under a judgment to foreclose a real estate mortgage in an action wherein L.H. Wentz, hereinafter called plaintiff, obtained a judgment against the defendant, Z.T. Miller. The lands involved are situated in counties, Kay, Noble and Pawnee. The lands were sold under special execution directed to the sheriffs of the proper counties and command...
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Action by H.C. Eisenschmidt, as plaintiff, against R.M. Conway and Lawrence Mills, as defendants. From an order and judgment sustaining a motion of defendants for a directed verdict, plaintiff appeals. Plaintiff's petition in this case was based upon alleged fraud in the procurement from him by defendants of an assignment of a certain judgment held and owned by him, the facts leading up to this ac...
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R.C. Alexander and Pharaoh Alexander, a partnership, appeal from a judgment of the superior court of Okmulgee county, Okla., rendered in favor of Pharaoh Company, a corporation. The parties differ with respect to the nature of the action and the issues involved, this difference being such as to affect the consideration of the weight of the evidence. Alexander instituted the action against the co...
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This is an appeal from an order of the trial court granting a new trial. On the 28th day of August, 1942, the plaintiff, Ruby Curtis, began an action in the district court of Creek county against the defendant in which she alleged that on the 31st of January, 1942, she slipped and fell while going into the defendant's store in the city of Cushing, Okla., to do some trading; that she slipped upon s...
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This is an action by A.F. Johnson as the payee of a $2,500 "order" check against the Security National Bank of Duncan, Okla., as a collecting bank, which is asserted to have received the check (from one other than the payee) as a negotiated instrument under a forged and unauthorized endorsement purporting to be the endorsement of Johnson. The case originated in the district court of Stephens count...
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Defendant, Wilbur J. Holleman, was charged in the municipal criminal court of the city of Tulsa with the crime of malicious mischief; was tried before *Page 388 the court without the intervention of a jury; was convicted and sentenced to pay a fine of $18 and $2 costs. From such judgment and sentence he has appealed to this court. The ordinance under which defendant was charged is as follows: "Ma...
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The defendant, Kenneth George Roots, was charged in the district court of Woods county with the crime of murder; was tried, convicted, and sentenced to serve life imprisonment in the State Penitentiary, and has appealed. This is one of the most tragic cases to be presented to this court. The defendant, a 17-year-old high school senior, shot and killed a 21-year-old boy, who was the brother of defe...
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The defendant. Amon Johnson, was charged in the district court of Lincoln county in case No. 2747, with the crime of murder of Martha Gorski, and was charged by information in the same court in case No. 2748, with the crime of murder of Mrs. Victoria Gorski. The defendant entered a plea of guilty in each of said cases and was sentenced to death in the electric chair at the State Penitentiary for s...
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This is an original proceeding in habeas corpus instituted by the petitioner, Jake Hinley, to secure his release from confinement in the State Penitentiary at McAlester. In the verified petition filed herein it is alleged that the petitioner, on November 27, 1938, was sentenced to serve a life term in the Oklahoma State Penitentiary for the crime of rape. Neither the information nor the judgment a...
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Original opinion in this case is reported in78 Okla. Cr. 407, 149 P.2d 514, 521. Petition for rehearing was granted and defendant has filed a brief in support thereof. The state was granted time to file reply brief, but has not done so. We consider it necessary to refer to only one of the questions presented. It is urgently contended that by reason of the holding of the court that the closing argu...
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The original opinion in this case is reported in78 Okla. 434, 150 P.2d 76. A rehearing was granted, and oral argument was had, and additional briefs filed by all parties. The question presented for serious consideration by the court on rehearing is that by the terms of the ordinance it is provided that one convicted "shall be fined in any sum not less than $1.00 and not more than $19.00, and the c...
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The original opinion in this case was handed down on September 20, 1944. In the original opinion it was stated that the defendant had been sentenced to serve a term of “six” years in the State Penitentiary. An examination of the record reveals that it should have read a term of “seven” years. A petition for rehearing, and brief in support thereof, has been filed. We have again carefully reviewe...
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1 Reported in 155 P.2d 273. John Thomas Towey procured from the Minnesota Life Insurance Company four policies of insurance on his own life, of each of which policies the insured's wife, Agnes E. Towey, was named beneficiary. Each policy, the date of issuance and face amount of which are as follows, reserved to the insured the right to change the beneficiary by filing with the insurer a written re...
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1 Reported in 155 P.2d 277. The complaint in this action, filed by George Penchos and wife in the superior court for King county, contained fourteen purported causes of action. Each cause of action was based upon a claimed violation or violations *Page 199 of the emergency price control act of 1942, by defendants Werner Ranta and wife. The above act will be found in 56 Stat., chapter 26, p. 23 et...
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OPINION This proceeding was filed in the District Court of Fremont County, Wyoming, on behalf of The State Board of Law Examiners asking for the disbarment of the Respondent. The proceedings are based upon Chapter 9, Wyoming Revised Statutes, 1931. The case was heard before a court composed of three of the District Judges of the state, and that court filed its recommen...
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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 587 [EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 588 Suit by Richard H. Zimmerman for divorce. From a decree dismissing complaint on ground that plaintiff had not ...
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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 136 [EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 137 Action by Owen A. Gossett against Henry Van Egmond for damages for the death of plaintiff's minor son through ...
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Proceeding by Jackson County, a political subdivision of the State of Oregon, against Earl H. Fehl to foreclose certain liens for delinquent taxes against *Page 155 certain tracts of land. From an adverse decree, defendant appeals. AFFIRMED. REHEARING DENIED. On December 7, 1938, Jackson county commenced a proceeding to foreclose the liens for delinquent taxes against numerous tracts and parcels ...
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Error is assigned by defendants in the action of the trial court in overruling the motion of defendants for an order of involuntary nonsuit and in overruling defendants’ motion for a directed verdict in favor of defendants. *22 In support of their assignment of error, defendants urge that all the elements involved in a malpractice action, including the element of proximate cause, must be esta...
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The opinion of the court was delivered by This was a workmen’s compensation case. The *399appeal is by respondent from an order of the workmen’s compensation commissioner, sustained by the district court, upon the hearing of claimant’s petition for review and modification, which order increased the compensation originally allowed. Appellant contends there was no substantial evidence to support th...
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The opinion of the court was delivered by In a complaint filed in police court L. W. Hardin was charged with the violation of a city ordinance.. Upon a trial in police court he was found guilty and appealed. In the district court the facts were stipulated and the court made a general finding that the defendant was not guilty and discharged him. Counsel for the city announced that it desired “the r...
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This is an appeal from an' order of the Superior Court in Marin County awarding a preliminary injunction which, among other things, restrained, defendants from discharging or causing the. discharge of plaintiff, and *725 other Negro employees because they are not members of a labor union with which their employer has a closed shop agreement, but which will not grant Negroes full me...
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Plaintiffs brought this action to enjoin defendants from coercing or preventing milk companies from supplying plaintiffs with milk or milk products. By stipulation the ease was submitted on the pleadings and affidavits filed by the parties. Defendants have appealed from an order of the trial court awarding a permanent injunction] Plaintiffs, Bautista and Macias, residents of California, were joint...
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This is an action by plaintiff in error against James I. Wallace, administrator of the estate of Lete Kolvin Stevens, deceased, to recover $3,274.27 for medicines furnished and medical services alleged to have been rendered to deceased from 1916 to 1929. Plaintiff attached to his petition a verified statement of his alleged account. The answer denied under oath the correctness of said account. Let...
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Plaintiff and defendants were engaged in the business of milling and selling poultry feed. Plaintiff’s place of business was in Los Angeles County; defendants’ place of business in Riverside County. The plaintiff was going out of business in 1942; defendants were advised of it, and the parties negotiated a sale by plaintiff to the defendants of a pellet machine. A pellet machine transforms mash or...
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Plaintiff brought this action to quiet title to a quarter section of land in Butte County. Defendant Barbara Sullivan appeared, and defendant Webster defaulted. No other defendants were served with process, and the action was dismissed as to them. Mrs. Sullivan, in her answer, claimed an interest in the property described, alleging that on August 23, 1934, while it was owned by Dora B. Webster,...
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The appellant, Daisy Rickman, was found guilty by a jury of selling opium in violation of section 11160 of the Health and Safety Code, and as a punishment therefor she was sentenced to imprisonment in the county jail for a term of one year. The opium was purchased from appellant by a woman operator in the employ of the State Narcotic Division, and the sale took place in front of a shoe shining ...
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The executor of the will of Gus B. Caldwell, deceased, has appealed from three orders of the superior court as follows: (1) an order denying the executor’s petition to vacate an order awarding to the widow a family allowance of $100 per month from the date of death to the date of filing the inventory, amounting to the sum of $630; (2) an order setting apart to the widow, as property exempt from...
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67 Cal.App.2d 800 (1945) Estate of HENRY H. CLINE, Deceased. MADYLON M. BROWN, Appellant, v. MAURINE PHYLLIS CLINE RAINVILLE, as Administratrix, etc., Respondent. Civ. No. 14664. California Court of Appeals. Second Dist., Div. One. Feb. 5, 1945. Warner I. Praul and Porter & Sutton for Appellant. Michael F. Shannon and Thomas A. Wood for Respondent. WHITE, J. This is an appeal from an o...
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This is an appeal from an order denying a petition for partial distribution. The decedent, Henry H. Cline, died testate on the 17th day of June, 1937. His will dated December 11, 1936, was duly admitted to probate. The third paragraph of said will reads as follows: “I hereby give and bequeath to Madylon M. Brown of Los Angeles, Calif, the sum of Three Thousand ($3,000.00) Dollars, inherited by me ...
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Pursuant to the authority granted by section 14 of the Alameda County Charter, authorizing the establishment of a retirement system for the benefit of “county employees,” the board of supervisors passed an ordinance, which was approved by a vote of the electors, setting up such a system. The plaintiff herein holds an elective office in the county, namely, that of county clerk; and he brought this ...
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This is an appeal from a judgment entered after a jury had returned a verdict for defendants in an action for damages resulting from a collision between two motor vehicles in the intersection of Shaw and Brayley Avenues in the county of Fresno shortly after five o’clock in the afternoon of November 23, 1942. Plaintiffs are husband and wife. They were traveling south on Brayley Avenue in a ...
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In an information filed in the Superior Court of Sacramento County defendant was charged with a violation of section 278 of the Penal Code, in that on or about the 1st day of September, 1943, he wilfully, maliciously, forcefully and feloniously took a boy of the .age of 12 years away from his mother with the intent to detain and conceal said child from his parent. He was convicted and now appeals...
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On June 15, 1943, plaintiffs were the owners of a homesite lot in the city of Los Angeles. On that day the defendant Harry F. Ulrich by a writing contracted for *699 the purchase of the property on the following terms, to wit: To pay two notes secured by trust deeds upon the premises in the sums of $1,539.31 and $1,027.33, in installments payable respectively at $17 and $33 per mon...
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This is an appeal from a judgment entered in the District Court for Salt Lake County in favor of plaintiff and respondent for $400 attorney's fee together with interest from September 1, 1932. Respondent, Willard Hanson, is a duly licensed and practicing attorney of the Utah State Bar. He commenced this action against appellant, Mrs. Margaret C. Openshaw, in February, 1943, alleging in substance t...
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The opinion of the court was delivered by This case is here on an application for a writ of habeas corpus by Fred Bissell, who for more than twenty-seven years has been and still is serving a sentence of life imprisonment in the Kansas State Penitentiary for the murder of Edna Dinsmore committed in April, 1916, in Shawnee county, Kansas. The petitioner prepared and filed his own application and at...
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The opinion of the court was delivered by This was an action for a balance claimed to be due for service under a contract of employment. The trial court sustained defendants’ demurrer to plaintiff’s evidence and he has appealed. The pertinent portions of the record may be summarized as follows: In plaintiff’s petition, filed July 21, 1943, it was alleged that about January 1, 1942, plaintiff and d...
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The opinion of the court was delivered by This was an action for damages. The jury returned a verdict in favor of the defendant. Plaintiff’s motion for a new trial was denied and she appealed. Briefly stated, in her petition plaintiff alleged her residence in the city of Parsons, and that on the night of October 23, 1942, she was walking north on Twenty-fifth street to its intersection with Wilson...
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The opinion of the court was delivered by This was a proceeding for the purpose of having a secured demand allowed as a claim against an estate. The claim was allowed in full. Subsequently the claimant asked that the judgment be amended in certain particulars. This motion was overruled. The claimant thereupon appealed to the district court, which gave the same judgment as the probate court and all...
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*388The opinion of the court was delivered by This was an action for judgment on a promissory note, and the defendant, Felix Tuekel, appeals from a judgment against him. The petition was in usual form, a copy of the note being attached as an exhibit. Defendant Tuekel filed an unverified answer consisting of a general denial, a specific denial that he had made any payment on the note after July 7, ...
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The opinion of the court was delivered by This is an original application for a writ of habeas corpus. The petitioner is serving two life sentences in the state penitentiary. He seeks hi's reléase on the ground both sentences are void. *435No issue of fact is presented. The petitioner contends he was illegally sentenced to life imprisonment for the offense of robbery in the first degree and to lif...
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The opinion of the court was delivered by This was an action to quiet title to real estate. The defendants prevailed and the plaintiff appeals. The issue turns on construction of a deed. Isaac Bennett was an early settler in Linn county. He and his wife! homesteaded a quarter section of land and continued to make it their home until their death. In 1928, being advanced in years, they decided to c...
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The opinion of the court was delivered by This was an action to recover death benefits under an accident insurance policy. The defendants appeal from an order overruling their demurrers to plaintiff’s petition. In the petition the status of the parties was set forth and it was alleged that on June 21, 1943, the insurance corporation, hereafter called the Association, issued a policy of health and ...
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The opinion of the court was delivered by This was an action instituted under the declaratory judgment statute for the purpose of obtaining judicial construction of a contract and a determination of the rights of parties thereunder. Judgment was rendered in favor of the plaintiffs, and the defendants appeal. The trial court, at the request of the defendants, made findings of fact and conclusions ...
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*409The opinion of the court was delivered by This case originated in the probate court by the filing of a claim for allowance against an estate. The claim was based upon a check payable to the St. Francis Association, for $10,000, which had not been cashed during the lifetime of its maker. In probate court a demurrer was sustained to the claimant’s evidence and it appealed to the district court, ...
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The opinion of the court was delivered by This was an action on a life insurance policy. The facts were stipulated. The sole legal question involved is whether *404plaintiff’s recovery should be for the face of the policy or only for the aggregate premiums paid. The trial court rendered judgment for the face of the policy. Defendant has appealed. The facts are as follows: On June 26, 1941, defend...
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The opinion of the court was delivered by This was an action by the state on the relation of the county attorney to enjoin the defendants from operating an ice man*379ufacturing plant. The petition was in three causes of action. Judgment was for the defendants on two of the causes and for the plaintiff on one of them. Both parties have appealed. The first cause of action alleged that the defendan...
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The opinion of the court was delivered by This is an action for divorce, alimony and custody of minor children. The probate court of Hamilton county, where the action was filed, made, in the absence of the district judge, an ex parte order for custody of the children and for alimony. The defendant appeared specially and filed a motion to dissolve this order on the ground that plaintiff was not a b...
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The opinion of the court was delivered by This controversy requires the construing of the terms of a joint will, the sole question at issue being whether by the use of language to be found therein it was intended specific bequests to a legatee vested on the death of the surviving testator or the time of their vesting was suspended until such time as the court admitting the will to probate made it...
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OPINION Respondent was granted a decree of divorce on the ground of three years separation. Appellant complains that the trial court abused the discretion vested in it by *Page 487 law, in the following particulars: first, in refusing to set aside appellant's implied waiver of a jury trial; second, in refusing a continuance in order to permit one of appellant's co...
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1 Reported in 155 P.2d 485. This is an appeal by defendant from an order denying his petition to vacate an interlocutory order of divorce, which was entered on his default. Prior to the commencement of the action, the plaintiff and defendant entered into an agreement settling their property rights. The court, however, declined to approve the agreement and decreed a division of the property of the ...
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1 Reported in 155 P.2d 486. This was an action for damages for personal injuries sustained by the plaintiff, a pedestrian, who, while traversing a crosswalk at a street intersection, was struck and severely injured by an automobile driven by the defendant. The cause was tried to a jury, which returned a verdict for the plaintiff. Judgment was entered on the verdict and the defendant appealed. The ...
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1 Reported in 155 P.2d 493. William A. Krings, as plaintiff, instituted this action against the city of Bremerton, a municipal corporation, for the purpose of recovering damages suffered by plaintiff as the result of a collision between plaintiff's automobile, which he was driving, and a garbage truck owned and operated by the city. As a result of the accident, plaintiff suffered severe physical i...
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1 Reported in 155 P.2d 497. This case arises out of a collision between plaintiffs' and defendants' automobiles at the intersection of Eighty-fifth street and Fifteenth avenue northeast in *Page 300 Seattle. Plaintiffs sought to recover for damage to their automobile and for injuries sustained by Mrs. Mancinelli. Defendants, by cross-complaint, laid claim for damage to their automobile. The case ...
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ORDER DISMISSING APPEAL This matter having come on regularly to be heard before the court sitting En Banc on the 9th day of November, 1944, on the motion of respondent to dismiss the appeal herein taken by Margaret Helard, and the court having heard and considered the matter and having thereafter entered an order filed herein November 29, 1944 (which order is hereby referr...
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1 Reported in 155 P.2d 500. Two plaintiffs brought separate actions against identical defendants to recover unpaid wages, overtime compensation, liquidated damages, and attorneys' fees, alleged to be due and owing to plaintiffs, or recoverable by them, respectively, under the provisions of the fair labor standards act of 1938 (52 Stat. 1060 to 1069, incl.; 29 U.S.C.A., §§ 201 to 219, incl.). The c...
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On the 17th day of March, 1941, Pearl Adair Hubbard, administratrix of the estate of R.W. Hubbard, deceased, commenced an action against Lillian Barry to recover certain funds paid to Lillian Barry by the Northwestern Mutual Life Insurance Company. Judgment was for the plaintiff, and defendant appeals. The parties will be referred to by their trial court designation. The facts disclose that R.W. H...
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The action is for recovery of death benefits under a life insurance policy. Plaintiff's petition alleged the issuance of the policy to assured on June 2, 1923, and among other allegations, the following: "That the annual premiums necessary to keep said policy of insurance in force were thereafter paid to the defendant to the second day of June, 1932, on which date said policy of insurance was cont...
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This action was instituted on March 18, 1938, by N.B. Feagin, hereinafter referred to as plaintiff, against Thomas W. Champion, hereinafter referred to as defendant, to obtain dissolution of alleged joint adventures and an accounting and to recover moneys advanced in connection with said transactions. Plaintiff in his petition alleged, in substance, that on January 2, 1926, he and defendant had or...
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This is an appeal from the judgment entered on a verdict against plaintiff in error, who was plaintiff below, and in favor of defendant on his cross-petition. Plaintiff is a corporation organized under the laws of Ohio. Defendant does business in Tulsa, Okla., under the name of Steel Machinery Company. Plaintiff is engaged in buying and selling used machinery and tools and conducts its business i...
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Bessie D. Simpson brought suit in the name of Oklahoma City (11 O.S. 1941 § 237[11-237]) to foreclose delinquent assessments levied for street paving pursuant to 11 O.S. 1941 §§ 221[11-221] to 241. Judgment was for plaintiff for foreclosure, and defendants appealed. Essential facts are that under the 1907-1908 law original assessments were made in March, 1911, by ordinance No. 1462 to pay for the ...
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This action was instituted in the district court of Pottawatomie *Page 121 county by Ida Munday, as plaintiff, against the Federal National Bank of Shawnee, Okla., administrator of the estate of Annie Niblack, deceased, as defendant, to recover the sum of $413.40, with interest, alleged to be the separate property of the plaintiff. The trial court denied the claim of the plaintiff and entered jud...
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Defendant in error, hereinafter referred to as plaintiff, commenced this action against plaintiff in error, hereinafter referred to as defendant, to recover damages alleged to have been sustained as a result of injury to his cattle caused by their drinking water alleged to have been polluted by salt water escaping from defendant's oil wells located within the pasture used by plaintiff and others. ...
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This is an appeal by petition in error and case-made which was filed in this court October 4, 1944. The case-made was settled and signed by the trial court on the 4th day of October, 1944. It was served on the 7th day of September, 1944, but the record discloses that there was no service of a notice of settlement of the case-made. In Pink v. McGuire, 187 Okla. 629, 105 P.2d 229, we held: "A case-m...
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This is an action to set aside a county commissioners' deed. It was instituted in the superior court of Okmulgee county by Joe A. Frates, Jr., sole surviving officer (secretary-treasurer) and director of the Oklahoma Southwestern Railway Company, a corporation, against J.J. Whitson as purchaser and present asserted owner. The authority of Frates to institute the action is challenged. The authority...
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In this case, plaintiffs in error were plaintiffs in the trial court and defendants in error were defendants. The parties will be referred to as in the trial court. Plaintiffs seek to recover the value of certain lead and zinc ores which they alleged defendants took from certain land belonging to plaintiffs, and converted to their own use and benefit. In the second cause of action, plaintiffs alle...
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On the 1st day of August, 1942, the State Insurance Fund, hereinafter called plaintiff, filed its petition seeking to recover against the board of county commissioners of Creek county, defendant, on five causes of action for premiums on insurance policies issued under 85 O.S. 1941 § 149[85-149] for workmen's compensation contracts. The trial court sustained a demurrer to the petition. The demurrer...
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This cause is presented on appeal from a judgment of the court of common pleas of Tulsa county, Okla., in an action wherein Francis W. Bauder and Tace Rose Nichols, the surviving children of Lea Bauder, were plaintiffs, and Grace Alice Bauder and Home Federal Savings Loan Association were defendants. The defendant Grace Alice Bauder is the second wife of H.W. Bauder, deceased, who was the survivi...
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The defendant in error filed an application with the board of adjustment of Oklahoma City for a permit to erect a two-story tile and stucco structure to be used in the operation of a trailer camp. The plaintiffs in error protested the application before the board, but after hearing the evidence the board granted the permit. Plaintiffs in error then appealed to the district court from said order, a...
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The defendant, Howard Lancaster, was charged in the district court of Pottawatomie county with the crime of rape in the first degree; was tried, convicted, and sentenced to serve 35 years in the State Penitentiary, and has appealed. It was the theory of the state that the defendant was guilty of having sexual intercourse with a 13-year-old girl who was employed to work at his home taking care of t...
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Defendant, Mack Pritchett, was charged in the district court of Tulsa county with the crime of murder, was granted a change of venue to Pawnee county, where he was tried, convicted of manslaughter in the first degree, and sentenced to serve a term of ten years in the State Penitentiary. From this judgment and sentence he has appealed. All assignments of error may be considered together. This neces...
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Action by Ira Cram against L.H. Tippery and another for breach of contract, wherein the named defendant filed a counterclaim. From an adverse judgment, the plaintiff appeals. The plaintiff has appealed from an adverse judgment in an action to recover damages for breach of contract. He alleged in his amended complaint that he purchased from the defendants seventy tons of hay at $16.00 a ton, and ma...
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Suit by Ted D. Norcross against Marjorie E. Norcross for divorce. From a decree for plaintiff, defendant appeals. AFFIRMED. Suit for divorce by Ted D. against Marjorie E. Norcross. From a decree in favor of the plaintiff awarding to him three minor children, the defendant appeals. After entry of the decree and while the cause was pending upon appeal in this court, the plaintiff and respondent serv...
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Suit for divorce by David Hodes against Sarah Hodes, wherein defendant filed a cross-complaint for separate support and maintenance. The defendant obtained a decree of permanent separate support and maintenance, the plaintiff failed to make the monthly payments and defendant caused execution to be issued to collect the delinquent monthly installments. From an order requiring plaintiff to deliver c...
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July 1, 1937, the plaintiff and James R. Johnston, with whose status this proceeding is concerned, signed a contract which is quoted in the majority opinion. July 1, 1938, according to the express findings of the defendant Commission, that contract was "mutually cancelled." Upon the same day the parties effected a new agreement which they reduced to writing December 1, 1938. It, too, is quoted in ...
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This is an action in equity for an accounting on contract of employment. Appellant, fifty-two years of age, has been a mechanic and machinist, since he was sixteen years old. In the spring of 1940, at Boise, he set up the business of operating a machine shop, which was located on the rear of his residence lot. Appellant did all the work in his shop, up to July, 1941, when he employed his two bo...
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In the years 1920 and 1921 appellant, King Hill Irrigation District, issued certain warrants for labor and other services in connection with the maintenance and operation of its irrigation system, which were acquired by the Tingwall Stores Company. Thereafter on April 13, 1926, Tingwall Stores Company filed a suit in the district court of Elmore county to recover a judgment on said warrants. May 1...
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PLAINTIFF in error, hereinafter referred to as defendant, was convicted on both counts of an information. The first charged keeping a gambling house in violation of section 229, chapter 48, '35 C.S.A. The second charged keeping gambling devices in violation of section 230, id. To review the judgment of fine and jail sentence entered on the verdicts he prosecutes this writ. The errors assigned are ...
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delivered the opinion of the Court. Plaintiff in error is hereinafter referred to as defendant. This is a companion case to No. 15556 this day decided and the opinion therein should be read in con *185 nection with this. Defendant was charged, convicted and sentenced as was defendant in that case. The material facts in the two are substantially the same, as are the authorities relied upon. He...
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This action involves a boundary line between the lands of the plaintiff and those of the defendant and cross-complainant in section 26, township 4 south, range 24 east, M.P.M. Carbon county. *Page 546 Plaintiff, Dorothy Vaught, is the owner of the north half of the southwest quarter and the southwest quarter of the southwest quarter and cross-complainant, J.R. McClymond, is owner of the northwest...
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Respondent’s motion to dismiss the appeal herein for the reason that the transcript on appeal had not been filed within the time required by the rules of this court is hereby granted and the appeal is ordered dismissed. ...
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The transcript on appeal having been filed herein on August 26, 1943, and thereafter, on November 4, 1943, the bill of exceptions having been stricken therefrom for the reason that it was not served and filed within the time allowed by law; and the respondents having on March 25, 1944, filed their motion to dismiss the appeal herein bearing appellant’s admission of service and consent that it mig...
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The county from which this case is brought on appeal is one of the border counties of Arizona, bordering on the Republic of Mexico. The *Page 147 City of Douglas, hereinafter mentioned, is on the border line. On August 8, 1943, a human body was found under a culvert some seventeen miles from Douglas on Highway 80 which passes through Douglas to New Mexico, running in an easterly and northerly dir...
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On and previous to July 24, 1943, petitioner was employed by respondent employers as a structural iron worker in the construction of the aluminum plant west of the City of Phoenix, Arizona. On July 24th, petitioner was overcome with heat, later diagnosed by his attending physician as "heat stroke," and became temporarily unemployable. In due time, petitioner filed his claim, liability was admitted...
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Plaintiff has appealed from a judgment for the defendants in an action to recover damages for personal injuries sustained by plaintiff under the following circumstances : On July 1, 1940, at about the hour of 4:25 a. m., plaintiff *808 was walking in a northerly direction on the' easterly sidewalk of Front Street, between Washington and Jackson Streets, in San Francisco, and more particularly...
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This is an appeal by defendant from a final decree which awarded plaintiff a divorce, and purported to award her a half interest in defendant’s cause of action for personal injuries sustained subsequent to the entry of an interlocutory decree. The attempted division of the cause of action may not be sustained unless the cause of action itself was “property” acquired by the husband after marriag...
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This appeal is from a judgment for plaintiff in an action for the conversion of the vessel ‘ ‘ St. Mary. ’ ’ The historical background is set forth in Balestreiri v. Arques, 49 Cal.App.2d 664, 665-666-667 [122 P.2d 277], an action for declaratory relief, in which Balestreiri was named as plaintiff and respondent, and Arques as defendant and appellant. We quote the facts fr...
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Two suits for the reasonable value of services performed by sisters of Mary Collier, deceased, were consolidated for the purpose of trial. In spite of the fact that the court found the deceased did not agree to pay either of the plaintiffs “the reasonable or any other value for such services,” judgments were rendered in their favor. Sara B. Collier was awarded the sum of $400 and costs, and Lilli...
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Defendant appeals from a judgment- reforming a property settlement agreement entered into by the parties at a time when they were husband and wife. The agreement which was executed on October 29, 1942, provided for the division of their community property and for the payment of $150 per month by the husband to the wife for the period of three years. The agreement contained the following provisi...
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This is an appeal by the defendant from a judgment in favor of the plaintiff who was the sole beneficiary under a policy of life insurance issued by defendant on the life of Garrett O. Wigell. The action was defended upon the ground that the policy lapsed prior to the death, of the insured and this is the sole issue in the case. The exact *781question is whether there were sums in defendant’s hand...
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Petitioner was adjudged guilty of contempt of court and sentenced to serve five days in the County Jail of Los Angeles County for disobedience of an order, which was made on November 6, 1944, in connection with a divorce action instituted by her against her husband, Rudolph Eisner, requiring her to pay to him the sum of $225, as and for alimony pendente lite and attorney’s fees. By the instant ...
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Plaintiffs, Helen M. Lowe and Elsa K. Dernkam, who are legatees of certain real property under the will of Josephine Wester, brought this action against Albert J. Ruhlman and others for the purpose of having it determined that Ruhlman’s life estate in the property had terminated by reason of Ruhlman’s alleged breach of a condition subsequent. The trial court determined that there had been no brea...
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Petitioner, George W. Davis, has been convicted of grand theft. His appeal is now pending. By this application he seeks from this court an order admitting him to bail pending the appeal. Such an application was first made to the trial court, and was there denied.' That court also denied his petition for probation. The application recites the conviction and the taking of the appeal,' and- then all...
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On November 3, 1932, the appellant company issued an automobile liability policy to Helmut Hardt covering a specified automobile. On October 23, 1933, Hardt, while driving the automobile in question, injured William Kingston. In March of 1934 Kingston sued Hardt for the injuries so received. In that action Hardt was defended by appellant company pursuant to the terms of the policy. In June of 1...
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Defendant was charged by information with violation of Penal Code section 286. Four prior convictions, three for similar offenses, and one for grand larceny, were also charged. Upon arraignment he admitted the prior convictions, and entered pleas of not guilty and not guilty by reason of insanity. The jury returned verdicts of guilty of ' “an .attempt to violate section 286 of the Penal Code” and...
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The respondent demurred to petitioner’s application for a writ, of certiorari, on the ground that it fails to state a cause authorizing the issuance of the writ. The petition alleges that Clarence Stoner brought suit in the Superior Court of Yolo County against his wife Gertrude *761 Stoner, under section 82 of the Civil Code, for annulment of his marriage, on the ground that at the time of s...
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This is an action to quiet title to real property as against any rights of the defendant arising out of certain contractual relations between her deceased husband, D. R. White, and the plaintiff. D. R. White and the plaintiff executed a written agreement dated January 10, 1938. By way of preamble it recited that the plaintiff owned certain land upon which was an oil well which was not then in prod...
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California Employment Commission has appealed from a judgment which was rendered against it in a suit instituted under section 37 of the Unemployment Insurance Act of California (Stats. 1935, p. 1226, as ámended; Deering’s Gen. Laws, 1939, p. 1697, Act 8780d) to collect from the respondent, who was engaged in baling hay on contract with farmers in Yolo County, alleged delinquent assessments levie...
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From a judgment in favor of defendant after trial before the court without a jury in an action to cancel a deed, plaintiff appeals. The evidence being viewed in the light most favorable to the defendant (respondent), and pursuant to the rules set forth in Estate of Isenberg, 63 Cal.App.2d 214, 216 [146 P.2d 424], the essential facts are: On April 9, 1943, plaintiff deeded a- parcel of real ...
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From a judgment in favor of defendants after trial before the court without a jury, in an action for an accounting and dissolution of an alleged joint venture, plaintiff appeals. *879 The evidence being viewed in the light most favorable to the defendants (respondents), and pursuant to the rules set forth in Estate of Isenberg, 63 Cal.App.2d 214, 216 et seq. [146 P.2d 424], the essential fa...
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Plaintiff appeals from a judgment after order sustaining general and special demurrers to a second amended complaint, without leave to amend. The complaint purports to set forth a cause of action upon a contract claimed to be -within the code provisions that “A contract, made expressly for the benefit of a third person, may be enforced by him at any time before the parties thereto rescind it.” (C...
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This is an appeal by transcript from a proceeding after judgment. Judgment was entered on the 24th day of February, 1942. On or about the 1st day of May, 1944, defendant filed a motion to vacate the judgment. On June 12, 1944, plaintiff filed a motion to strike and dismiss said motion to vacate for want of jurisdiction. On July 3, 1944, the court held a hearing on the motion to vacate the judgment...
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On February 18, 1941, this court sustained the constitutionality of the Oklahoma Habitual Criminal Sterilization Act, S. L. 1935, p. 94, 57 O.S. 1941 §§ 171-195[57-171-195]. Skinner v. State, 189 Okla. 235, 115 P.2d 123. The United States Supreme Court granted certiorari. On June 1, 1942, the court reversed our decision and held that the act violates the equal protection clause of the Fourteenth A...
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For many years prior to his death on March 12, 1941, one Fred H. Rubel was the equitable owner of the real estate involved herein situated in Tulsa county, Okla. Legal title, for reasons immaterial here, had been held on various occasions in the name of various persons plaintiffs herein. On March 5, 1941, title was held in the name of the plaintiff Emma Lawson, and on said date Rubel procured her ...
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This is an appeal by St. Louis-San Francisco Railway Company, hereinafter referred to as appellant, *Page 42 from an order made and entered by the Corporation Commission on April 19, 1943, requiring maintenance of station agent service at Bennington, Okla. The record discloses that Bennington is located on the line of the appellant which traverses Bryan county and is situate 10.3 miles west of Bo...
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This action was instituted on January 16, 1942, by Oscar Hankins, as plaintiff, against Wauketta Hankins, to have a resulting trust declared in his favor as to certain property located in Oklahoma City, Okla. On March 7, 1924, Oscar Hankins and his wife, Mrs. Oscar Hankins, adopted the defendant, Wauketta Hankins, a girl three months of age, as their daughter. The next year following the adoption ...
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This is a mandamus action brought by the plaintiff, H.C. Pool, bondholder, for himself and all others similarly situated. He sought by the remedy of mandamus to require the board of education to provide in its budget for the fiscal year 1942-43 for funds with which to pay the 1927 or 1928 installment of the paving assessments levied against the property of the board of education, together with the...
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This action was brought by Seitz, plaintiff, against defendants, L. L. Largent and wife, to recover specific real estate and to cancel resale tax deed. *163 Both plaintiff and the defendant Largent claim ownership of the land, the latter being in possession. Upon jury waiver the cause was tried to the court. There was a general finding and some special findings for defendant, and judgment f...
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This is an original proceeding in this court by Voss Brothers Dairy, hereinafter referred to as petitioner, to review an award for compensation which was made by the trial commissioner and affirmed by the State Industrial Commission in favor of H.F. Gardner, hereinafter referred to as respondent or claimant. The essential facts in this case are not in dispute. Petitioner is the owner and operator ...
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The defendant, W. H. Hoehn, was charged, by information in the county court of Kiowa county, on August 27, 1942, with the crime of selling intoxicating liquor, was tried, convicted, and sentenced to serve a term of 30 days in the county jail and pay a fine of $50 and the costs, and he appeals. Petition in error and case-made Avere filed in this court on November 7, 1942. No brief has been filed...
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Defendant, Lloyd Wehr, was charged in the district court of Logan county with the crime of sending a threatening letter with the intent to extort money, was tried, convicted and sentenced by the court to serve a term of four years in the State Penitentiary, and has appealed. The assignments of error relied upon for reversal of this case are: "1. The verdict is not sustained by sufficient evidence....
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This is an appeal from a conviction sustained in the district court of Carter county, wherein the *Page 419 defendant, Vernon Stacey, was sentenced to serve a term of fifteen years imprisonment in the State Penitentiary for the crime of manslaughter in the first degree. No question as to the sufficiency of the evidence having been raised, it is not necessary to give an extensive review of the evi...
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The appellant was convicted of murder in the first degree and sentenced to be executed. From the verdict of the jury and the sentence by the court the appellant appeals. *Page 541 The evidence shows that the appellant, James Joseph Roedl, and one LeRoy Edward Ritchey first became acquainted in the early part of October, 1942, at Scotts Bluff, Nebraska. Traveling west and just outside of Denver, C...
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This action was brought to recover taxes imposed and collected for the year 1939 upon the shares of stock of the plaintiff national bank owned by the individual plaintiffs. The complaint alleges in substance that the tax was erroneous and unlawful and that plaintiffs had, in addition to the share tax, paid an *Page 567 income tax on the basis of the dividends received from the shares. A general d...
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On a previous appeal the judgment of the district court was reversed and a new trial ordered. (Cline v. Tait, 113 Mont. 475,129 P.2d 89.) The present appeal is from a judgment for plaintiff on the second trial. The action was brought for the recovery of damages from the defendant Tait and the surety on his official bond, for the false imprisonment of plaintiff. By stipulation prior to the first tr...
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Margaret M. Sullivan died testate in 1924. Her will was admitted to probate in 1925 and letters testamentary issued to James C. Sullivan and Jane S. Higgins, her son and daughter, who were named therein as executor and executrix. The will gave each of them specific devises and residual devises and bequests; certain others, defendants herein, were named as beneficiaries, but the nature of their dev...
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"Except in one particular I am in accord with the opinion of Chief Justice Givens in this case. The point on which I am unable to agree with him is as to labor performed *Page 74 upon vegetables received by appellant on consignment. I believe all the labor mentioned in this case, including that on produce consigned to appellant, is "agricultural labor" within the meaning of the unemployment compe...
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THIS case involves the construction of the will of James E. Patch, which was duly admitted to probate in the county court of Arapahoe county. The four disposing paragraphs read as follows: "First, It is my wish that all my just debts be paid in full. "Second, I give and bequeath to my wife Augusta Patch all of my property, real and personal, wherever located, and at her death all of the said prope...
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delivered the opinion of the court. A proceeding instituted by plaintiff in error, an organized school district of the first class in Jefferson county, known as No. 47, to enjoin defendant in error, the superintendent of schools in said county, from taking threatened action looking to the annexation to plaintiff in error of an adjoining organized school district of the third class, No. 50, in t...
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JUNE 29, 1936, the Metropolitan Life Insurance Company issued an endowment policy to one Wade. The policy provided that if Wade made payment of premiums as required by the terms until he had attained to the age of seventy-nine years, it would pay him the sum of three hundred ninety-two dollars; and in the event of his death "prior to the date of the maturity of the endowment," the company promised...
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This is an appeal from an order dismissing plaintiff's action on the ground that it was barred by limitation. On May 21, 1942, plaintiff filed his complaint against the defendant, a duly licensed dentist, for damages for malpractice in performing certain professional services upon plaintiff's teeth, in the months of July and August, 1935. It is alleged, in substance, that plaintiff's wisdom teeth ...
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This action is brought by the trustee of the Iron King Mining Company to recover from the Industrial Commission $376.94 premiums claimed by the latter body as earned by it. The material facts are as follows: The Iron King Mining Company was engaged in the mining and milling of ores in Yavapai County, and was insured with the Industrial Commission, under the Workmen's Compensation Law. In 1941 it l...
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1 Reported in 155 P.2d 790. Plaintiff commenced this action, seeking a divorce from his wife and a decree awarding to him the community property and the exclusive care, custody, and *Page 292 control of their minor children. By cross-complaint, defendant prayed for a judgment and decree awarding her a divorce, the custody of the children, and a division of the community property. A trial upon the...
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1 Reported in 155 P.2d 794. Defendants, A.F. and L. Pearl Kelley, husband and wife, during the year 1943 were the owners of a lease from Harry W. Crosby, covering the St. Regis hotel property in the city of Seattle. Defendants owned the furniture in the hotel and had been operating the business for some time. The St. Regis is a seven-story hotel, advantageously located, and well patronized. Plaint...
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1 Reported in 155 P.2d 802. As stated in appellant's brief, this is the second time this cause has been before this court. The action, as originally commenced before the department of labor and industries, was entitled Ralph Rowley, plaintiff, v. Department of Labor and Industries, defendant, Gange Lumber Company, employer. The above proceeding was commenced by filing with the department on or abo...
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1 Reported in 155 P.2d 806. Plaintiff brought an action on his insurance policy to recover benefits for a loss sustained thereunder. From a verdict of the jury, the defendant appeals. On January 27, 1942, respondent, F.G. Johnston, driving his Dodge pickup on his way home from work in Seattle, collided head on with a Packard coupe, being operated on the same street and going in the opposite direct...
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25 Cal.2d 814 (1945) SADIE ANTHONY et al., Appellants, v. DON G. HOBBIE, Respondent. Sac. No. 5676. Supreme Court of California. In Bank. Jan. 31, 1945. J. Oscar Goldstein and Burton J. Goldstein for Appellants. Rich & Weis and Richard H. Fuidge for Respondent. CARTER, J. Plaintiffs are the wife and daughter respectively of H. L. Anthony, deceased, who was killed when an automobile dri...
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On March 18, 1940, Samuel B. Kaufman executed a will in New York. He subsequently moved to California where he executed a new will on April 30, 1941, containing the clause “I, Samuel B. Kaufman, do hereby make and declare this to be my Last Will and Testament, revoking all former wills.” Both wills named identical persons for identical cash bequests and the Second Church of Christ, Scientist, o...
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Demurrer to plaintiff’s amended complaint was sustained with leave to amend. Upon failure to amend, after notice, judgment for defendant was made and entered, from which plaintiff appeals. Inasmuch as the decision necessarily turns upon whether a cause of action is stated by the amended complaint, the following is substantially its content: Plaintiff and defendant appear as administrator and execu...
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This is an original application for a writ of habeas corpus on the ground that petitioner is being illegally held in custody. The undisputed facts are these: Petitioner is a parolee from San Quentin Prison. On *836November 24, 1944, he was placed in the custody of the Sheriff of Los Angeles County at the instance of his parole officer. Thereafter at a meeting of the Adult Authority, held at San Fr...
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Defendant appeals from a judgment following a verdict of guilt in a prosecution for assault with a deadly weapon, a .32 automatic pistol, upon the person of one Robert J. Breese. Upon his appeal he challenges the sufficiency of the evidence to establish guilt and complains of error in instructions that were given and in the refusal of an instruction. It is claimed by defendant that there was not ...
Views: 6
From a judgment, in a proceeding to determine heirship, adjudicating that appellant had forfeited all interest and rights in the estate of his deceased wife, he appeals. These are the conceded facts: Lilly B. Howard, wife of appellant, died testate November 9, 1938. Her will was duly admitted to probate and an inventory and appraisement was filed. ' On June 9, 1941, the executors of deceden...
Views: 6
From a judgment of guilty of grand theft, after trial before the court without a jury, defendant appeals. There is also an appeal from the order denying his motion for a new trial. The evidence being viewed in the light most favorable to the People (respondent), the essential facts are: On November 23, 1943, Mr. Karsh left his Cadillac sedan in front of 1388 West Washington Boulevard, Los A...
Views: 12
This is an action to quiet title to an easement and right of way for public street purposes over and upon a strip of land 14 feet wide running along the ocean front in the city of Laguna Beach. This strip is entirely covered by a wooden sidewalk or boardwalk. The entire boardwalk along this ocean front is several blocks in length but the only portion involved in this action is that within the b...
Views: 10
The question for decision is whether appellant wilfully misconducted himself while operating his own automobile, accompanied by a favorite friend as his guest. The *124 jury determined that he did not. The appeal is from the order of the court granting a new trial upon the insufficiency of the evidence to support the verdict. No proof other than that embalmed in the record was available. Pr...
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This appeal presents the question of priority between two assessment liens under the San Francisco Street Improvement Ordinance. It was stipulated that “ordinance No. 4720 (New Series), was enacted under the provisions of Section 33, Chapter II, Article VI of the Charter of the City and County of San Francisco, which said Charter was ratified by a Vote of the said City and County of San Francis...
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Plaintiff appeals from a judgment rendered in favor of defendants Security-First National Bank of Los Angeles and Assets Corporation. The action was for an accounting and the complaint alleged that a trust relationship existed between plaintiff and the defendants, that defendants had violated certain duties which they owed plaintiff as her trustee and had failed to render an accounting to her, ex...
Views: 14
This is a motion to dismiss the appeal on the ground, among others, that the matter is moot. Petitioners, Mark F. Jones and Sidney Tannen, filed a petition seeking compensation from the assets of the estate of Rosa Reiss for services alleged to have been rendered by them in the preservation of the assets of said estate. They had represented Moses Reiss, a son of decedent, not as executor or admini...
Views: 0
Petitioner asks for a writ of supersedeas to restrain the enforcement of a judgment of the superior court denying a writ of mandate and thereby sustaining an order of the Contractors’ State License Board of the Department of Professional and Vocational Standards revoking petitioner’s license to engage in the contracting business. Briefly, the facts are that on or about August 23, 1943, a complain...
Views: 9
The issues presented in the instant case are in all respects similar to those tendered in the case of West Coast Home Improvement Co. v. Contractors’ State License Board of the Department of Professional amd Vocational Standards, this day decided, ante, p. 1 [155 P.2d 863]. Upon the authority of and for the reasons stated in the cited case, the petition for a writ of supersedeas herein is denied a...
Views: 0
Plaintiffs sued to quiet title to the water of a certain creek or ravine on premises conveyed by Sarah H. Edgington and Hallie Olita Edgington to Ruth Grigsby by deed dated October 5, 1905. They asserted their right under and by virtue of a reservation of water rights in the above mentioned Grigsby deed and their subsequent acquisition of said rights by mesne conveyances. They also claimed righ...
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The appellants herein were successful plaintiffs in the action entitled Allen v. California Mutual Building & Loam, Association (hereinafter called the Allen case) and the judgment in their favor was affirmed by the Supreme Court. (22 Cal.2d 474 [139 P.2d 321].) That judgment, so far as material to the question now presented, is here quoted: “It is further adjudged, decreed and ordered, that each ...
Views: 0
This is an action for declaratory relief. Plaintiff, the former wife of defendant, Shipp, seeks an interpretation of a community property and support agreement (hereinafter called the agreement) entered into by said parties on August 2, 1932, and also an interpretation of a declaration of trust entered into at or about the same time by said parties and the California Trust Company, as trustee, for...
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This is an action to collect on an open book account from the defendants, both individually and as copartners. In August, 1939, the defendant Robertson became associated with the defendant McFarland, who then owned and operated a business known as “Standard Markets and Standard Food Stores.” For convenience, this business and any partnership will be referred-to as “Standard Stores.” At that time R...
Views: 0
From a judgment in favor of defendant after trial before the court without a jury in a proceeding to have defendant declared the father of plaintiff, Thomas Ahlborn Potasz, plaintiff appeals. The evidence being viewed in the light most favorable to defendant (respondent), and pursuant to the rules set forth in Estate of Isenberg, 63 Cal.App.2d 214, 216 et seq. [146 P.2d 424], the material fac...
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Plaintiff, a test pilot, brought suit for $2,500 against defendant, a manufacturer of aircraft, as the balance of an agreed price for the testing of a glider which defendant was manufacturing for the Air Corps of the War Department. Plaintiff upon full performance of his contract was to receive $5,000 for his services, he was paid $2,500, and was sued by cross-complaint for the sum of $1,000 whic...
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This is an appeal from a judgment that appellant was not the owner of the contents of a safe deposit box, which he alleged he owned by reason of a joint tenancy agreement with the decedent. Lloyd E. Dean, the appellant, and Martha Dean, the decedent, were married in 1923. In 1931 Mrs. Dean rented a safe deposit box in a bank, and the “signature card,” purporting to state that the box was h...
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The petitioner sought a writ of mandate to compel the respondent to issue a writ of execution upon a judgment which was set aside by an order granting a new trial. The petition attacked the validity of the order granting a new trial. The respondent defended the order and raised the separate defense that petitioner had an adequate remedy by appeal. A minute order denying the petition was entered a...
Views: 9
In an action for damages resulting from a battery, judgment went against defendant in the sum of $1,000 as a compensatory award and $1,000 for punitive damages. Defendant grounds his appeal upon the claims (1) that the evidence is insufficient to support the compensatory relief and (2) that plaintiff, having been the aggressor in the encounter, is not entitled to damages by way of punishment. ...
Views: 10
The following statement will be sufficient to a proper understanding of the material questions involved. This appeal is prosecuted by Samuel Morgan, as administrator of the estate of Frances Morgan, deceased, from an order made by the Industrial Accident Board on November 19, 1943, denying compensation to Frances Morgan, who died November 22, 1943. Frances Morgan was employed by J.R. Simplot in a ...
Views: 4
June 17, 1943, respondent Deal and Hawley, a copartnership, commenced this action in the seventh judicial district of Idaho, county of Canyon, against the appellant, Scrivner, to recover judgment for the sum of four hundred fifty dollars with costs on account of services rendered in procuring a purchaser for certain real estate and personal property belonging to appellant, situate and located in C...
Views: 2
Action by the Portland General Electric Company and the Glens Falls Indemnity Company of Glens Falls, N.Y., plaintiffs, against the firm of Reimers and Jolivette, defendants, to recover on defendants' bond, executed as contractors, in favor of first named plaintiff, which plaintiff held a contingent liability policy issued by its co-plaintiff, Glens Falls Indemity Company. From a judgment of dismi...
Views: 3
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 56 Suit by Ada C. Frederick against Douglas County, and others, to remove the cloud of a void tax sale from title to real estate claimed by the plaintiff. From a judgment dismissing the suit, following the sustaining of defendants' demurrers to the complaint ...
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Suit by M M Wood Working Company and another against State Industrial Accident Commission and others to obtain a judicial declaration that Chapter 416, Laws 1943, as applied to the plaintiffs, is unconstitutional, and for a decree enjoining the enforcement thereof. From a decree in favor of the plaintiffs, the defendants appeal. AFFIRMED. This is a suit to obtain a judicial declaration that Chapt...
Views: 5
Action by E.J. Miles against Spokane, Portland Seattle Railway Company and the Columbia Basin Terminals, a corporation, for injuries sustained by plaintiff on a dock owned by the defendant Railway Company and occupied by the Terminals Company as lessee. The court granted the Railway Company's motion for an involuntary nonsuit, and from the judgment, plaintiff appeals. AFFIRMED. The plaintiff, a l...
Views: 6
This action was instituted by Paul Ross, hereinafter referred to as plaintiff, against Rudolph Hadley and the Postal Mutual Indemnity Company, hereinafter referred to as defendants, and M.B. Jones, to recover damages for injuries to the person of the plaintiff alleged to have been sustained as the result of a collision between a truck owned by M.B. Jones, a nonresident, and operated on the highway...
Views: 0
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 76 [EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 77 [EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THE...
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This action is brought against the Board of Examiners of the[1] State of Montana and the members thereof. The prayer of the complaint is for a declaratory judgment of this court declaring and determining that House Bill No. 45, [Chapter 2] Session Laws of Montana, 1945, is a valid legislative enactment and declaring the duties of the defendants under said bill authorizing and requiring the defend...
Views: 2
This is an appeal from a judgment on a directed verdict, "no cause of action." The question for determination is whether the trial court erred in directing a verdict in favor of defendant. On March 22, 1942, the defendant United Pacific Insurance Company entered into an agency contract with plaintiffs, whereby the plaintiffs were made nonexclusive agents to solicit and submit applications for insu...
Views: 0
This is an appeal by certain heirs of decedent from an order confirming sale of securities. Respondent administratrix moved to dismiss the appeal on the ground that notice of appeal was not served upon the successful bidder who became the purchaser to whom the sale was confirmed. We denied the motion to dismiss the appeal, and we deem it advisable to indicate the reasons therefor. The respondent h...
Views: 3
The present opinion is substituted for an opinion promulgated February 21, 1944. J.P. Stokes, doing business as Stokes Realty Company, sued and by the judgment rendered and based on the verdict of a jury, recovered as against Local Federal Savings Loan Association of Oklahoma City a real estate broker's commission on the sale of defendant's realty to Henry G. Picard. Plaintiff alleged himself to ...
Views: 0
A judgment was rendered in the district court of Bryan county in favor of J.B. Newman, administrator of the estate of Marion L. Self, deceased, as plaintiff, against the Pure Transportation Company, a foreign corporation, as defendant, for the wrongful death of Marion L. Self. From such judgment defendant has appealed. The parties will be referred to herein as they appeared in the trial court. The...
Views: 0
This appeal is from the district court of Muskogee county. The controversy arose upon settling the final account and report of Ida Mae Jones, executrix of the estate of Andrew Jones, deceased. The cause was first tried in the county court of Muskogee county, then appealed to the district court. By the district court judgment, Ida Mae Jones, the purported widow of Andrew Jones, deceased, was denied...
Views: 0
Plaintiffs, an organization devoted to the purpose of furnishing information on governmental affairs to its membership and other interested persons, and individual citizens and substantial taxpayers of Oklahoma county in their own names, brought this action to require the county clerk of Oklahoma county to permit them to examine in detail the county charity claims for the month of June, 1942. The ...
Views: 3
G.G. Gormly, as plaintiff, commenced this action against the defendants seeking to quiet title to 80 acres of land in Okfuskee county, Okla. A judgment was entered for the defendants finding that they had a vested right in an undivided two-thirds interest in and to the oil and gas mineral rights in the 80 acres of land, and the plaintiff appeals. The record discloses that George W. Edwards, deceas...
Views: 2
PLAINTIFF in error, hereinafter referred to as defendant, by verdict returned March 10, 1943 was found not guilty on the first count of an information charging theft of a cow belonging to one Combs, and guilty on the second count charging unlawful killing of the same animal. Thereupon he was sentenced to a term of two to three years in the penitentiary. To review that judgment he prosecutes this w...
Views: 5
THIS inquiry has to do with the parties who were involved in Shreyer v. Shreyer, 112 Colo. 281,148 P.2d 1003. There, defendant in error, alleging cruelty, sought judgment for separate maintenance. She alleged further that the parties were engaged in conducting a taxicab business, and that through "their joint efforts have acquired valuable `herdic' licenses issued by the city, county and state * *...
Views: 1
PLAINTIFF in error, hereinafter referred to as defendant, was informed against for murder, perpetrated in the commission of arson. On August 28, 1940 he entered his plea of guilty of murder in the second degree and was sentenced to the penitentiary. June 23, 1943 he filed a verified petition for a writ of error coram nobis alleging, inter alia, that the information was ambiguous and, to him, incom...
Views: 1
A proceeding in a death claim matter under the Workmen's Compensation Act. A. Carbone and Company was the employer, John Alexander MacGregor (deceased) was the employee, Claire MacGregor, widow, and Ruth Mary MacGregor, minor daughter of MacGregor, were the claimants, and the State Compensation Insurance Fund was the insurer. The commission held adversely to claimants, but in an appropriate action...
Views: 1
THIS case involves the power of the Civil Service Commission of the City and County of Denver, hereinafter referred to as the commission, to increase the salary of its secretary above that fixed by ordinance of the city council. The trial court held that the commission had the power, and allowed judgment in favor of the secretary, C. R. Bigelow, who is defendant in error, in the sum of $750, being...
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1 Reported in 155 P.2d 1001. An oil truck owned and operated by defendant is alleged to have struck plaintiff, who, by his guardian ad litem, instituted this action to recover for personal injuries claimed to have been sustained thereby. Trial of the cause to a jury resulted in verdict in favor of defendant. From the judgment entered on the verdict, motions for judgment notwithstanding the verdict...
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1 Reported in 155 P.2d 1005. This cause comes to us upon an application for a writ of mandate requiring the superior court of King county to enter an order dismissing, for want of prosecution, an action pending in that court. The application is founded upon Rule 3, Rules of Practice, 18 Wn.2d 32-a, Rem. Rev. Stat. (Sup.), § 308-3 [P.C. § 8676-6]. January 6, 1942, John McB. Meade, as a stockholder ...
Views: 0
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 22 This action was brought by plaintiff (appellant here) under the "Declaratory Judgment Act", 1941 Comp. § 25-601 et seq., to determine the rights and interests of the parties to certain real estate and upon such determination "to set over to the party or pa...
Views: 5

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