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All Reporters → p2d → Volume 188

Opinions in p2d Volume 188

Petitioner was found guilty of the murder of Thora Chamberlain, a 14-year-old school girl. He is confined in the State Prison of San Quentin under a sentence of death following the jury’s return of its verdict without recommendation. Upon automatic appeal to this court (Pen. Code, § 1239(b)), the judgment of conviction was affirmed. (People v. McMonigle, 29 Cal.2d 730 [177 P.2d 745].) The cited op...
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This is an action for personal injuries allegedly caused by the negligence of defendants. Plaintiff entered defendant hospital for the purpose of having a wart on her nose removed and her tonsils excised; she was completely anesthetized by defendant Treadway; and defendant Libby, a physician and surgeon, used a hot electric needle to remove *292the wart. After the wart had been taken off and as Dr...
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The city of Long Beach seeks a peremptory writ of mandamus to compel its treasurer to transfer certain revenue from the city’s ‘‘Harbor Revenue Fund” to its “Public Improvement Fund.” The revenue in question was derived from the production of oil and gas from the tidelands and submerged lands within the corporate limits of the city of Long Beach, claimed by the city under legislative grants from t...
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Petitioner, California Shipbuilding Corporation, seeks review and annulment of an award of increased compensation made by the Industrial Accident *271Commission in favor of petitioner’s employe, Cleo Rogers. Such award was made pursuant to section 4553 of the Labor Code, which provides that “The amount of compensation otherwise recoverable shall be increased one-half where the employee is injured ...
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Respondent Frank Cornier sustained compensable injuries while in the employ of petitioner California Shipbuilding Corporation. He claimed and respondent commission awarded the increased compensation provided by sec*279tion 4553 of the Labor Code for an employe injured by reason of the serious and wilful misconduct of an employer. To sustain the extra compensation, it must be established that the e...
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California Shipbuilding Corporation petitions for review and annulment of an award of increased compensation in favor of its employe Sanchez. Sanchez was injured in the accident described in California Shipbuilding Corp. v. Industrial Acc. Com. (L. A. 20140), ante, p. 270 [188 P.2d 27], The material facts and applicable law in this proceeding are the same as those of that case. For the reasons the...
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California Shipbuilding Corporation petitions for review and annulment of an award of increased compensation in favor of its employe Sanchez. Sanchez was injured in the accident described in California Shipbuilding Corp. v. Industrial Acc. Com. (L. A. 20140), ante, p. 270 [188 P.2d 27], The material facts and applicable law in this proceeding are the same as those of that case. For the reasons the...
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On the night of December 24, 1944, plaintiff was injured when the automobile then being driven by him stalled at the intersection of Coleridge Street and Cortland Avenue in San Francisco on the streetcar tracks of defendant city and was hit by a municipal streetcar. Plaintiff brought this action for his injuries and damage to his automobile, alleging that the accident occurred as the result of ...
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On December 6, 1946, the administrator of the estate of Emma Mary Miller, deceased, filed his petition for confirmation of sale of an undivided one-eighth interest in Lots 8 and 10 of Walnut Lawn Tract in Los Angeles County to Ralph C. Glidewell and wife for $600 cash. The property had been appraised at $400 on September 17, 1946. The hearing on the petition was set for January 8, 1947. On January...
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Appeal from a judgment rendered upon the sustaining of a demurrer to a petition for a writ of mandate. The order sustaining the demurrer gave petitioner leave to amend. He failed to do so within the time allowed. He appeals from the judgment which followed. The facts alleged are these: Respondent Smutz is Zoning Administrator of Los Angeles. On January 17, 1944, petitioner acquired oi...
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Defendant appeals from an order granting plaintiff’s motion for a new trial after a jury returned a verdict in defendant’s favor in an action to recover damages for personal injuries. The record discloses evidence from which the trial judge could have found the following facts: On August 18, 1945, at about 12 -.30 p. m. plaintiff was on the south side of Olympic Boulevard in Los Angeles. This boul...
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This is an action to determine the common boundary between two lode mining claims in Riverside County. On November 20, 1934, the plaintiffs located the “Southern Cross No. 4” mining claim on unsurveyed government land. It extended 1,500 feet northerly and southerly and 600 feet in width, being 300 feet on each side of the lode line containing the point of discovery. On December 15, 1934, the plain...
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1 Reported in 188 P.2d 71. March 20, 1943, Andrew A. Randall, Jr., John P. Towell, Edward J. Hudson, Harry Graham, and A. Razore, all residents of Bellingham, Washington, signed articles of copartnership, the pertinent paragraphs of which read as follows: "1. That the parties hereby agree that on February 1, 1943, they became and now are partners in business for the purpose and under the terms her...
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1 Reported in 188 P.2d 82. Plaintiffs brought suit to recover damages for the death of their minor son, alleged to have been caused by the negligent acts of one of the defendants in the operation of a motor vehicle. The action was tried before a jury, resulting in a verdict in favor of plaintiffs. Upon the denial of defendants' motion for judgment notwithstanding the verdict or, in the alternative...
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1 Reported in 188 P.2d 88. Defendant, James Mitchell, was charged with the crime of murder in the first degree. The information, filed by the prosecuting attorney for Pierce county, alleged: "That the said James Mitchell in the County of Pierce, in the State of Washington, on or about the 18th day of December Nineteen Hundred and forty-six did then and there being unlawfully and feloniously with a...
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1 Reported in 188 P.2d 97. MALLERY, C.J., MILLARD, BEALS, and ROBINSON, JJ., dissent. Plaintiff instituted this action for the purpose of securing a judgment for damages suffered by him as a result of picketing by defendant union; also for the purpose of securing an injunction prohibiting the union from placing him on the unfair list. *Page 489 The cause was tried to the court, sitting without a ...
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1 Reported in 188 P.2d 104. MALLERY, C.J., HILL, and SIMPSON, JJ., dissent in part. Appellant was charged, by information, with the crimes of abortion, manslaughter, and murder in the second degree, as follows: "Count (1) – . . . and by this Information do accuse JAMES M. UNOSAWA of the crime of ABORTION committed as follows: "He, the said JAMES M. UNOSAWA, in the County of King, State of Washingt...
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1 Reported in 188 P.2d 116. The parties to this action intermarried at Tacoma, Washington, May 1, 1946. October 23, 1946, the *Page 551 plaintiff, Eleanor Swanson, filed her complaint asking for a divorce from her husband, Ernest H. Swanson, for alimony in the sum of one hundred dollars a month, for an award by way of attorney's fees, and that certain property be set over to her as her separate e...
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1 Reported in 188 P.2d 121. The appellant, driving south from Ferndale to Bellingham at three-thirty or four a.m. on September 23, 1945, discovered that a Mr. and Mrs. Thorpe had been injured when the motorcycle they were riding collided with an automobile. They were lying on the west side of the road, she entirely off the pavement and he with his feet on the paved portion of the highway and his b...
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1 Reported in 188 P.2d 125. Relators, Thomas W. Fong, James Lee Hing, and Joseph Bauer, were named as defendants in a criminal action now pending in King county, Washington, and were charged therein with the crime of burglary in the second degree, alleged to have been committed on May 22, 1947. On July 17, 1947, relators, two of whom had theretofore entered pleas of not guilty, filed in that actio...
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1 Reported in 188 P.2d 130. Action was instituted in this case to enforce specific performance of an agreement to sell real estate and personal property, consisting of a gasoline station and its equipment. The complaint contains allegations that: Defendants husband and wife owned certain community real property in King county, and also owned several pieces of personal property used in a gasoline f...
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1 Reported in 188 P.2d 136. MILLARD, J., dissents. This is an appeal from a declaratory judgment and decree, holding that certain landowners and water users under the Sunnyside canal are entitled to water for a charge of one dollar per acre per year, or less, to defray the costs of operation and maintenance, and enjoining the the Sunnyside Valley Irrigation District from assessing such lands, duri...
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1 Reported in 188 P.2d 146. This is a proceeding by petition to vacate and set aside a judgment of the superior court of Spokane county dated March 20, 1944, finding the petitioner insane *Page 528 and committing him to an institution. A demurrer by the prosecuting attorney, on the ground that the petition did not state facts sufficient to warrant the relief asked for, was sustained and the petit...
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IN BANC. This matter is here for consideration upon two motions to dismiss the appeal. A statement of the issues involved will materially aid our approach to the question presented. We shall refer to the Lewises as plaintiffs (they are likewise respondents), to the Shooks as appellants (they are likewise defendants), and to the Lees as defendants (they are likewise respondents). On the 14th day of...
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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 396 Action for damages for assault and battery by Claude A. Eldred against Raymond J. Burns and others. A verdict in favor of plaintiff was returned against defendants Raymond J. Burns and others, but no verdict was returned against defendant Kingsley Lumber ...
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IN BANC. The plaintiff instituted this suit for the purpose of quieting title to an unpatented placer mining claim known as The Last Chance, situated in the Galice unorganized mining district in Josephine County, ownership and possession of which claim in him is alleged in his complaint. The answer, denying plaintiff's ownership, alleged that plaintiff had forfeited the claim by failing to perform...
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This appeal presents two major questions for decision. They are (1) whether following entry of a judgment awarding compensation for disability under our Workmen’s Compensation Law in which the court declined to suspend or reduce compensation unless the employee should undergo a surgical operation calculated to reduce the percentage of disability, the court can reopen the matter and modify the judg...
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We are asked to reverse a judgment of the district court of Bernalillo County dismissing for want of indispensable parties the suit of plaintiff (appellant) seeking an adjudication that certain real and personal property standing in his wife's name at the time of her death was community property rather than her separate estate and, hence, his by right of full ownership. Evelyn Clark Sullivan, the ...
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The defendant was convicted of contributing to the delinquency of a seven year old girl. His first ground for reversal is his claim that the trial court erred in overruling his challenge for cause to the juror Barnett, who was called into the box after he had exhausted his peremptory challenges. We quote the following from the examination of this juror: By Mr. Rowley (Assistant District Attorney):...
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The defendant appeals from a judgment entered against him in the district court, where damages were assessed in double the rental value of the premises in question, used and occupied by him from the date of the original judgment to the date of delivery of possession. On December 6, 1945, the plaintiff filed an unlawful detainer action against the defendant in the district court of Bernalillo Count...
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Inez Bogle, executrix of the Last Will and Testament of Oliver Jackson, deceased, and the former wife of Hal Bogle, instituted this action seeking an accounting and recovery of the earnings and profits claimed to have been made from approximately $20,000 turned over to him by the deceased during his lifetime under a power of attorney. The case was tried to the court without a jury. After deducting...
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Plaintiff was awarded compensation against defendant by the industrial accident board. Defendant appealed to the district court where the action of the board was upheld. This appeal followed. The only question presented by the appeal is whether plaintiff's injury arose out of and in the course of his employment with defendant. Plaintiff was injured on the 24th day of August 1944. He was then emplo...
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Peter J. Boehs brought this suit against L. T. Adelman and others for specific performance of a contract for the sale of real estate. Judgment was for defendants, and plaintiff appeals. The property involved consisted of 160 acres of land in Major county. It was a part of the estate of A. Adelman, deceased, who died in 1923. There had been no administration of his estate and no judicial determinat...
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This is an action for personal injuries by Ruby Curtis against Montgomery Ward & Company, a corporation. On January 31, 1942, plaintiff was about to enter defendant’s store in the city of Cushing as a customer when she slipped on ice near the east front entrance of the building and fell; the fall resulted in a broken ankle and internal injuries from which she was still suffering at the time of the...
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Holbert Electric Company, a copartnership composed of P. A. Holbert and G. R. Holbert, hereinafter referred to as contractor, was engaged in the performance of three construction contracts. In each case performance and payment bonds were required and Standard Accident Insurance Company, a corporation, hereinafter referred to as surety, executed each of the bonds in that capacity. Each bond was con...
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This is an original proceeding in this court by EaglePicher Mining & Smelting Company, own risk carrier, to review an order and award of the State Industrial Commission awarding compensation to Alfred E. Van Gundy, and discharging Special Indemnity Fund. Respondent, on November 15, 1945, filed his first notice of injury and claim for compensation in which it is stated that on November 1, 1945, whi...
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This is an original proceeding brought to this court by Cities Service Oil Company, a corporation, own risk carrier, hereinafter referred to as petitioner, to review an order of the State Industrial Commission awarding compensation to respondent, M. M. Huff. Respondent in due time filed his first notice of injury and claim for compensation in which it is stated that on the 25th day of February, 19...
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This is an original proceeding in this court wherein J. A. Allen, the petitioner, seeks a writ of prohibition against the Honorable W. A. Lackey, as Judge of the Fifteenth Judicial District of the State of Oklahoma. The petitioner is plaintiff, and John E. Layden and others are defendants, in an action in the district court of Pittsburg county wherein plaintiff seeks judgment for money and foreclo...
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This is an appeal by Bruce L. Keenan from an order and judgment allowing compensation to Virgil Clark as receiver. The record reflects that Virgil Clark was appointed receiver and took possession of certain properties in litigation in case No. 5917 in the district court of Cherokee county, wherein *518Bruce L. Keenan was plaintiff, and W. L. Garner and others were defendants, on November 7, 1940; ...
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This is an action by J. S. Douglass against the defendants, Paul L. Douglass and Ruth Douglass, his wife. The second amended petition •contained two counts. In the first cause ■of action plaintiff sought cancellation of a deed executed by the plaintiff to Paul L. Douglass, his son, on October 10, 1938, covering a tract of six acres of land in Oklahoma county, because of failure of consideration, a...
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This is an action brought by Nellie Weatherspoon, as plaintiff, against Sidney J. Weather-spoon, as defendant, for a divorce on the grounds of extreme cruelty and gross neglect of duty, and for a division of property. The parties will be referred to as they appeared in the trial court. The parties in this action had been married some 21 years of which union there were born two children, a son and ...
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Plaintiff obtained a judgment against the defendant in an action on a contract and after said judgment was entered a motion for new trial was filed which was overruled April 14, 1947, at which time defendant was given 60 days in which to make and serve case-made. Thereafter an extension of this order was obtained by virtue of which the defendant had until the 12th day of August, 1947, in which to ...
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January 23, 1945, plaintiffs filed an action in the district court to quiet title to numerous properties acquired at the 1942 tax resale in Oklahoma county, involving the vacant city lot herein involved. By leave of the court plaintiffs filed and docketed their amended petition in this case, alleging they held title and possession of lot three (3), block eleven (11), Guernsey Park addition, Oklaho...
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May 12, 1943, plaintiff secured a default judgment of divorce from Jorel Edward Murphy. The trial court also awarded plaintiff custody of Joe Edward Murphy, a minor son of the parties, and directed the defendant father to pay $15 per month support money for the benefit of said minor. October 18, 1944, upon application of the father, an order was entered sustaining his application for change of cus...
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The defendant, Walter Fields, was charged with the crime of murder of one Jerry Miller. He was tried, convicted of first degree manslaughter, and sentenced to ten years in the penitentiary. The sufficiency of the evidence to warrant the jury in finding the defendant guilty and fixing his punishment at ten years in the penitentiary is not questioned. The contention of error is based on other ground...
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The defendant, Jess Bird, was charged with the crime of burglary in the second degree, second offense, in the district court of Osage county; was tried, found guilty, and his punishment assessed at eleven years in the State Penitentiary at McAlester, and he has appealed. Defendant's first proposition for a reversal of this case is: "The verdict in this case is contrary to the law and the evidence ...
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This is an appeal from a judgment in a suit brought under the Declaratory Judgment Act, Code 1939, § 27-701 et seq., refusing an injunction to plaintiff-appellants to compel defendant-appellee to refrain from the practice of optometry. The case was tried to the court without a jury. A brief statement of the facts is as follows: At the time of bringing this action in the Superior Court of Pinal Cou...
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THIS case involves the custody of the two children of the parties. They appeared in the same order in the trial court and are hereinafter referred to as there. Plaintiff brought suit for divorce and asked custody of the two children, a daughter aged five and a son aged six. Defendant filed an answer and cross complaint also asking divorce and custody. Later plaintiff withdrew his complaint for div...
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THIS action was brought by plaintiffs Schluter to quiet title to seep water rising in the Burlington ditch, and to enjoin interference with the use thereof. Defendant company, the owner of the Burlington ditch, is a mutual irrigation company. The ditch extends northerly from its headgate on the South Platte river, from which it has a decreed water right. Near its north and lower end, the ditch run...
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This is an appeal from a judgment which enjoined defendants from interfering with the free passage of rain and surface waters from plaintiffs’ property flowing across defendants’ property, and required defendants to remove a “fill-in and dam” located on their property. The evidence in this case is not conflicting. The precise problem presented does not seem to have been decided in the exact for...
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The instant action is one for damages for wrongful death brought by the father of decedent, a minor. In his complaint, plaintiff named as defendants Dan H. Moorehead and Jane Moorehead, individually and as copartners doing business as Dan Moorehead Construction Company, their employee, James Parrish; the Airline Bus Company, its employees, and several fictitious defendants. Plaintiff alleged th...
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Some time prior to 1920, defendant Frank Brock purchased a ranch from his mother Jeanette M. Brock, giving her a note and mortgage for the unpaid balance of the purchase price. This was followed by a note and trust deed dated October 25, 1927, which apparently was a renewal of the original note and mortgage, and which in turn was followed by a trust deed and note dated October 5, 1932, in the a...
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This is an appeal from an order granting a new trial in favor of plaintiff in a personal injury action. The motion for a new trial was made upon all of the statutory grounds designated in Code of Civil Procedure, section 657. The record does not disclose the ground or grounds upon which the order was based. During the oral argument counsel for plaintiff designated certain errors considered as grou...
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Appeal by defendant Bisno from a judgment for plaintiff in an action for a real estate broker’s commission. Plaintiff, a licensed real estate broker, was employed by owners of real property, situate in Eureka, California, to effect a sale of the property. The price asked included a commission of $5,000 to plaintiff. Plaintiff interested Bisno in purchasing the property. After some negotiation ...
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Plaintiffs, husband and wife, sought damages for breach of contract to convey real property. In a trial without a jury, judgment was for defendant and plaintiffs appeal therefrom. The defendant employed a real estate broker to sell her house and lot. On October 8, 1945, the plaintiffs, and a saleslady who was employed by the broker went to the home of defendant, inspected it and then left....
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The petitioners herein allege that the quarantine order of the San Joaquin Local Health District by which they are imprisoned and restrained without bail is illegal in that (1) the county health officer does not have reasonable cause to believe that either of them is infected with any of the diseases specified in sections 2554 and 2571 of the Health and Safety Code, and therefore there is no justi...
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This appeal is taken from a judgment on the verdict for the plaintiff awarding damages for injuries sustained in a collision between plaintiff’s motorcycle and defendant’s automobile. The accident occurred at the junction between Peabody Road and Highway 4 at a point where the highway and Peabody Road are mutually an extension of each other in a straight line, and Highway 4 curves slowly in a n...
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Defendant appeals from a judgment in favor of plaintiff in this action to quiet title to real property. The complaint alleged that plaintiff was the owner and in possession of the property, that defendant claimed an interest therein adverse to plaintiff, and that the claim was without any right whatever. The defendant denied those allegations, except the one as to the interest claimed by him; and ...
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Appeal from a judgment enjoining defendant from engaging in unfair trade practices. Plaintiff or its predecessor for more than 23 years has been engaged in a unique business in Los Angeles. According to the evidence, it is now and during the years has been the only concern engaged in a similar business in Los Angeles. The business consists in procuring, digesting and analyzing information ...
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Quo warranto proceeding by the State, on the relation of L. Orth Sisemore, District Attorney for Klamath County, against Standard Optical Company of Oregon, to oust defendant from its corporate rights, privileges, and franchises. From a judgment of dismissal, plaintiff appeals. REVERSED. By leave of court, the State of Oregon, on the relation of the district attorney for Klamath County, commenced ...
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1 Reported in 188 P.2d 316. Plaintiffs brought this action to recover damages for loss of their apple crop. They alleged in their complaint that they had purchased from the defendant a chemical compound called "Elgetol"; that thereafter they used it as recommended by the defendant in spraying their orchard; and that as a result they lost their 1945 crop of Jonathan apples. They asked for judgment ...
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January 13, 1937, Elizabeth Maudlin, the appellant herein, and Nathan B. Maudlin, the respondent, were married at Mountain Home, Idaho. August 10, 1944, appellant, as plaintiff, filed a complaint in the District Court of the Seventh Judicial District of Idaho in and for the County of Washington, and in which she sought a divorce, from respondent, under three separate causes of action, to wit, fail...
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This is an action sounding in tort in that it is alleged in the complaint that during *Page 60 the years 1943, 1944 and 1945 defendant-respondent, without the knowledge and consent of plaintiff-appellant, sold thirty-two head of cattle, alleged to have been owned by appellant, of the reasonable value of $100 per head, appropriated the money received for said cattle, and refused to pay appellant t...
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[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 480 Appellant, as plaintiff, brought this action against appellees (Clerk and Treasurer of Curry County), as defendants, under authority of Chapter 143, Laws of 1935, 1941 Comp. 25-601, known as the Declaratory Judgment Act, to recover money paid under protes...
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This is an election contest. The parties were opposing candidates for the office of Justice of the Peace, Precinct 19, Lincoln County, New Mexico, at the General Election held November 5, 1946. Contestant was the nominee on the Democratic ticket and contestee was the nominee on the Republican ticket. The returns, as certified by the election officials, show that contestant received 198 votes and t...
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Appellant, Ann Medina, instituted suit against appellees, New Mexico Consolidated Mining Company, employer, and London Guarantee and Accident Company, Limited, its insurer, in a proceeding under the New Mexico Workmen's Compensation Act, section 57-913, 1941 Comp., to recover compensation on account of the death of her husband, Ignacio Medina, occurring on January 19, 1946. The case was tried to a...
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In 1917 J. M. Newton was the owner in fee simple of the N.E.14 and the N.ENA of the N.E.14 of the S.E.14, section 21, township 7 south, range 5 east, in Marshall county. In September of that year Newton executed and delivered two mineral deeds each being for an undivided one-fourth interest in the oil, gas and other minerals in and under the above described land, the terms of said grants being 99 ...
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The American National Insurance Company, Galveston, Tex., whose Oklahoma representative and agent was Bomford Brothers Company, of Tulsa, Okla., was the owner of the real estate involved in this litigation, consisting of lots 1, 2, 3, and 4, block 24, O.T., Skiatook, Okla., commonly known as the “Craig property.” This property consisted of the real estate above described, upon which was located a ...
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This is an appeal by Agnes Gaskell from a judgment rendered by the district court of Tulsa county granting plaintiff, Howard Gaskell, a divorce on the ground of abandonment. Plaintiff in his petition alleges that on the 21st day of March, 1935, without cause, defendant abandoned him and has ever since that time lived separate and apart from him. Defendant in her answer denies that she abandoned pl...
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This action was brought by plaintiff, T. J. Dean, to quiet his title to certain real estate in Okmulgee, Okla., as against the defendant, State of Oklahoma, on relation of the Oklahoma Employment Security Commission, which claimed a lien thereon by reason of the filing of a tax warrant, in the office of the court clerk of Okmulgee county, showing alleged delinquent unpaid assessments against plain...
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This is an original proceeding brought in this court by Special Indemnity Fund to review an order of the State Industrial Commission made and entered by a trial commissioner awarding compensation to respondent Wallace Drye. An award was also entered against Kerlyn Oil Company, employer of respondent, and American Motorist Insurance Company, its insurance carrier. The only evidence offered at the h...
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This is an appeal from an order of court of common pleas of Tulsa county sustaining a motion to vacate judgment rendered during the term in which motion was filed. *552So far as necessary for purpose of review, the facts are as follows: Plaintiff in error, C. A. Mannah, as plaintiff, recovered in the above-named court a money judgment against defendants in error, Buck Robinson and Stella Robinson,...
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The plaintiffs, on January 26, 1944, filed their petition in the district court of Coal county to quiet title to the coal and asphalt lying under all of the town of Lehigh, except blocks 11, 12, 17 and 18; and alleged that they obtained title thereto by a deed from Folsom, Morris Coal & Mining Company, dated November 28, 1942, which is of record in the office of the county clerk of said county; th...
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This action was instituted by .Gladys Masingale against the Chickasha Cotton Oil Company to recover damages for alleged wrongful death of her minor son, Melvin Wayne Masingale, aged four and one-half years, who was drowned in a pit upon premises of defendant. Upon a jury’s verdict plaintiff was awarded judgment, from which the defendant prosecutes this appeal. The parties will be referred to as th...
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Petitioner, Owen Lewis, a minor, filed in this court his petition for writ of habeas corpus, alleging that he was unlawfully restrained by Colonel W. E. Downs, superintendent of the State Training School for White Boys at Helena, Okla. He alleges that such restraint was under and by virtue of an order of commitment made and entered on March 26, 1947, by John D. Gulager, judge of the county court i...
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The defendant, Leverett Burchfield, was convicted in the superior court of Seminole county, on a charge of burglary in the second degree, and was sentenced to serve a term of three years' imprisonment in the State Penitentiary. It is alleged in the information that on July 17, 1944, the defendant, along with his brother, Everett, and Willie Minor Jones, did break into a certain store building in *...
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Coy Lee Row was charged in the court of common pleas, Tulsa county, with the offense of possession of intoxicating liquor with intent to sell; waived a jury and was tried to the court, found guilty and his punishment fixed at a fine of $100 and 60 days in the county jail and he has appealed. Defendant was charged with having possession of four one-fifths gallons of gin, and one one-fifth gallon of...
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The defendant Robert R. Fitzgerald, together with Leon C. Phillips, was charged in the district court of Oklahoma county, Okla., August 10, 1943, by information filed on said date charging them in the first count thereof with the crime of conspiracy to receive bribes in connection with the issuance of executive clemency to one J. W. Eisiminger, a prisoner serving a life sentence upon the charge of...
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Robert R. Fitzgerald was convicted in the district court of Carter county, Okla., of the crime of bribery, sentenced to pay a fine of $500 with costs, and to serve 30 days in the county jail. Said defendant then perfected an appeal to this court. And he now shows by motion that during the pendency of this appeal his motion for a new trial on the grounds of newly discovered evidence has been grante...
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This action was brought to cancel a deed and bill of sale given by Edwin Lake to Percy J. Webber. The complaint alleges in substance that Edwin Lake at the time of signing the instruments was incompetent mentally and that the defendant Percy J. Webber and Ethel Webber, his wife, induced him to execute the instruments by undue influence. The answers of all the defendants save Rex Flint and his wife...
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Mandamus. Original proceeding. Relators are duly licensed members of the bar of this court engaged in the practice of law, resident taxpayers and electors in the eighth judicial district of the state of Montana. They petition for a writ of mandate directing the governor to appoint a district judge to fill the vacancy which they represent now exists in the office of the judge of the district court ...
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Plaintiff brought this action to restrain the defendants from interfering with her possession of certain described land. The complaint which was filed August 25, 1943, alleges that plaintiff is the owner of the land and that the defendant Fuller and defendant Monson, as sheriff of Pondera county, have taken possession of the property and threaten to remove the crops growing theron. It alleges that...
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The opinion of the court was delivered by The appeal in this case is from a declaratory judgment of the district court and involves the question whether that court had jurisdiction to determine the possible liability of the Boeing Airplane Company for the payment of taxes upon real property owned by the Reconstruction Finance Corporation and leased by the airplane company. The company brought the ...
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THIS is an action whereby plaintiff seeks personal judgments against the directors of the Bankers Trust Company under our Colorado statutes pertaining to liability of corporate directors. In a trial to the court judgment was in favor of the defendant directors, and plaintiff, coming here as plaintiff in error, seeks reversal. The transactions from which this case arose are the same as those upon w...
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Judgment affirmed in department without written opinion, Mr. Chief Justice Burke, Mr. Justice Stone and Mr. Justice Hays, participating. ...
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THIS is a claim for damage to a shipment of ginger root caused by freezing in transit from Tampa, Florida to Denver, Colorado, via Kansas City, Missouri, in January, 1945. The parties are here in reverse order of their appearance in the trial court and we hereinafter refer to them as plaintiffs and defendant. The trial court sustained plaintiffs' motion for summary judgment. This is assigned as er...
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AN action by defendants in error, plaintiffs below, against plaintiff in error, defendant, to quiet title to lands described in the complaint, two lots and a residence in Boulder. Plaintiffs claimed under a conveyance solely from the wife of defendant. Defendant claims under a statutory homestead entry which he had made prior to such conveyance, of which plaintiffs had both constructive and actual...
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Appeal from a judgment of the sixth district court convicting defendant of involuntary manslaughter. The facts out of which this case arises are largely without dispute, and are substantially as follows: At about midnight, on the evening of July 7, 1945, the defendant was driving his Dodge truck northerly along highway No. 89 at 25 to 30 miles per hour. At Central, Utah, where the road curved rath...
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This is an appeal by plaintiff, Thomas J. Anderson, from a judgment for defendant, Artesia Investment Co., a corporation, rendered by the court sitting without a jury in an action for claimed salaries and royalties due under a certain written agreement and on six assigned claims held by the plaintiff for labor and services alleged to have been performed for the defendant by certain workmen. Plaint...
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This is an action for a declaratory judgment to determine the question as to whether any funds are available for the payment of plaintiff's claim for services rendered to the Arizona Corporation Commission (hereinafter referred to as the Commission) in the matter of a proposed rate survey to be conducted by it. The facts necessary to a determination of the matter are as follows: Plaintiff-appellan...
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The petitioners were classified civil service employees in the Department of Water and Power of the city of Los Angeles. They have appealed from an adverse judgment in a mandamus proceeding wherein, they sou"ght reinstatement to their positions as field collectors, with the payment of salary from December 31, 1940, the date of their alleged wrongful suspension. The respondents defended in the pro...
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Plaintiff brought this action for declaratory relief to obtain a determination of its drilling obligations under an oil and gas lease as modified by a supplemental agreement between the parties. Plaintiff appeals from a judgment entered in favor of defendant, Union Sugar Company. The original lease was executed in 1936 between defendant, Union Sugar Company, as lessor, and Sovereign Oil Corporatio...
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Jacques de la Montanya, one of the beneficiaries under a testamentary trust provided for in the will of Sarah de la Montanya and made a part of the decree of distribution in that estate, appeals from an order made on April 7, 1947 which plaintiff designates as an order “confirming sale of certain real property therein described belonging to the trust estate, to A. Hirschberg.” Sarah de la Monta...
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Dalip Singh Bir, a native of India, died intestate in San Joaquin County on April 18, 1945, and respondent Florence Boyes was appointed and qualified as administratrix of his estate. On April 4,1947, two women named Harnam Kaur and Jiwi, both residents of India, joined in a petition to determine heirship, alleging in their petition: “That your petitioners were, at the time of the death of the d...
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The plaintiff and appellant sued as assignee and “on behalf of” a number of depositors in the Pacific States Savings and Loan Company. A list of the various assignors and the amount of their claims was attached as an exhibit and made a part of the complaint. The actions were consolidated for the purposes of the demurrer, and are treated together throughout. The complaint is framed in ...
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The accident out of which this action arose was apparently the result of the effervescence and ebullition of San Franciscans in their exuberance of joy on Y-J Day, Augúst 14, 1945. Plaintiff (who is not included in the above description), while walking on the sidewalk on Post Street adjoining the St. Francis Hotel, just after stepping out from under the marquee, was struck on the head by a heav...
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This is an appeal from a judgment for defendant in an action in which plaintiffs sought to recover $1,100 as commission on the sale of a yacht owned by defendant. L. G-. Swales is a duly licensed yacht broker and O. T. Walkey is a duly licensed yacht salesman working under him. Wilbur H. Barr was the owner of the yacht Branta, which was anchored at its mooring in Newport Harbor about 1% miles from...
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There appears in the clerk’s record of this action for accounting and an injunction, two notices of appeal filed by plaintiffs W. W. MacDonald and John R. Pom-fret: the first from an interlocutory decree, and the second from the whole of the final judgment. There also appears a notice of appeal by defendant Max Rosenfeld setting forth five designated grounds of appeal. Plaintiffs’ opening ...
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Plaintiff, the respondent, brought this action in ejectment against the defendant, appellant, to recover possession of 1,929.81 acres, more or less, of mining land in Placer County, and for damages for the alleged wrong *244 ful withholding of possession after demand by the corporation. From a judgment for plaintiff awarding it possession of the property and rental value damages fo...
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By an amended information appellant, George Cassandras, was charged with and convicted by a *274 jury of rape with force or violence alleged to have been committed upon the person of Carmen Brown. He appeals from the order denying his motion for a new trial and from the judgment, contending that there is no evidence that he employed force or violence, and that the trial court committed prejudic...
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Petitioner, Nelty Lefrane Horney, seeks by this proceeding in prohibition to restrain the Superior Court of Santa Clara County from further proceeding in a will contest in the estate of Marie Lefrane now pending in that court. It is the theory of petitioner that the trial court is without jurisdiction to proceed in that contest, except to *264 dismiss, for the reason that no servic...
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The present action for declaratory relief was instituted by the Merchants Credit Association of United States, and Charles A. Sunderlin who is secretary-treasurer of such incorporated collection agency. Mrs. Sunderlin is president of the corporation; Mr. and Mrs. Sunderlin and a married daughter are the directors. As Mr. Sunderlin explained in an opening statement to the trial court: “Merchants Cr...
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This action was brought by the appellant in the district court of Lewis and Clark county for the purpose of obtaining the judgment of that court declaring Chapter 142 of the Montana Session Laws of 1945 unconstitutional and void. The respondents, as members of the state board of equalization, were made defendants in the action. Said Chapter 142 is the law enacted by the legislative assembly of Mon...
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THE parties hereto will be mentioned as petitioners (plaintiffs in error here) and respondent (defendant in error) as they appeared in the trial court. In 1911 respondent was appointed by the county court of Gunnison county, Colorado, as guardian of the estate of two minor children, petitioners herein. He continued as such guardian until the minors became of age, one in 1928, the other in 1930, at...
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Appellants filed their action in forcible detainer against appellees on March 2, 1946. The summons issued in this case required appellees to answer the complaint on March 7, 1946, and on that date appellees filed both an answer and cross complaint, at which time the court set the case for a jury trial on March 14, 1946. The record shows that on March 11, 1946, before the trial date, appellants fil...
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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 350 This is an original action in quo warranto filed pursuant to article 6, section 4 of the State Constitution and section28-301, A.C.A. 1939, in the name of the State of Arizona upon the relation of Evo De Concini claiming to be the Attorney General of the ...
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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 31 [EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 32 Respondents brought actions, consolidated for trial, against appellants for damages for injuries to their person...
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This is an appeal from a judgment holding that the defendant was guilty of an unlawful detainer. We will refer to the parties as they appeared in the trial court. On May 15, 1925, Mrs. Dave Stockton, mother of the plaintiff, leased the property involved herein to J.L. McDermott for 5 years, with a provision that part of the rent was to be paid to the First National Bank of Raton to apply on indebt...
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This is an appeal from a judgment of the District Court of Valencia County, in a cause in which the defendant was charged, and found guilty, upon an Information accusing him of maliciously and wilfully maiming neat cattle. The original Information charged that the act was committed on or about June 26, 1946. However, during the presentation of the State's case, a motion was made by the defendant t...
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OPINION Unfortunately the court is divided in the determination of this appeal. Unfortunately also the learned *Page 82 Chief Justice, after writing his opinion in the case, was prevented by illness from further participation in the discussions and conferences concerning the same, or from rewriting his opinion accordingly, so that his opinion as originally written...
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Declaratory judgment action by Milton B. Henderson against State Tax Commission of the State of Oregon and others for declaration as to whether plaintiff should be required to pay the last half of the personal property tax assessed against his pleasure boat. From an adverse decree, defendants appeal. REVERSED. This is a suit for the purpose of obtaining a declaratory judgment as to whether plainti...
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Action by Marie Evans Mercer, executrix of the estate of Robert P. Mercer, deceased, against Clem Risberg, doing business as Risberg Truck Service, to recover for death of plaintiff's intestate killed in an automobile collision. From an adverse judgment, plaintiff appeals. AFFIRMED. This is an action to recover damages for an alleged wrongful death resulting from an automobile collision at the int...
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Action by Dixie Ann Bean, a minor, by her guardian ad litem, Frank R. Bean, against Harold Hostettler, to recover for personal injuries sustained by plaintiff when struck by automobile driven by defendant. From order granting plaintiff's motion for a new trial after verdict for defendant the defendant appeals. REVERSED. *Page 511 The sole question on this appeal relates to the power of the Circui...
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The opinion of the court was delivered by This appeal arises from a proceeding under the workmen’s compensation act, the principal question submitted being whether an award of compensation was prospective in operation so as to authorize proceedings for its review and modification, or, on the contrary was retrospective and final. The record discloses that on June 1,1945, the workman sustained an a...
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The opinion of the court was delivered by The question presented is whether the district court erred in requiring the defendant to go to trial upon a complaint which the defendant contends had not been properly certified as required by G. S. 1945 Supp., 63-401. The part of the statute germane to the appeal reads: “The justice from whose judgment the appeal is taken shall make return of the proceed...
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The opinion of the court was delivered by Plaintiffs brought this action for damages for the death of their daughter, Betty Alice Long, alleged to have resulted from the negligence of the defendants. The case was here before (162 Kan. 21, 174 P. 2d 88), where a judgment for plaintiffs was reversed because of trial errors. Upon another trial the jury answered special questions and returned a genera...
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The opinion of the court was delivered by This appeal involves those portions of a judgment which pertain to a division of property, the support of a minor child, and the amount of an attorney’s fee, rendered in an action for divorce. The record discloses that plaintiff commenced an action for divorce on April 23, 1943, and that the defendant, on April 26, 1943, filed her answer and cross petition...
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The opinion of the court was delivered by This is a disbarment proceeding filed by the board of law examiners pursuant to the provisions of G. S. 1935, 7-111 et seq. The accusation is appended to this opinion and made a part hereof. Exhibits “A” and “B” of the accusation constitute respectively a *161judgment finding respondent guilty of contempt of the district court1 and order remitting a porti...
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The opinion of the court was delivered by This was an action to enforce specifically the provisions of the contract. The trial court sustained a demurrer to plaintiffs’ petition and they have appealed. In the petition, filed April 18, 1947, plaintiffs allege that they reside at Piqua, Kan.; that defendant is a corporation organized under the laws of Kansas and is the corporate successor to Midland...
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The opinion of the court was delivered by The appeal in this case is from a judgment annulling a marriage. The action for annulment was refiled in the district court following a decision by this court in which it was held that probate courts do not have jurisdiction to entertain actions to annul marriages. A statement of the facts will be found in our preceding opinion, In re Estate of Dix, 161 Ka...
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The opinion of the court was delivered by This was an action to set aside a deed. Judgment was for the defendants. Plaintiff appeals. The petition alleged that plaintiff was the administrator of the estate of Henry A. Hall, deceased. It described an eighty-acre tract of land and alleged that during his lifetime Hall made an instrument called a warranty deed purporting to convey it to Alice W. Hayd...
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1 Reported in 188 P.2d 671. The plaintiffs brought this action seeking *Page 640 a declaratory judgment under the provisions of Rem. Rev. Stat. (Sup.), § 784-1 [P.P.C. § 65-1], which provides, among other things, that: "Courts of record within their respective jurisdictions shall have power to declare rights, status and other legal relations whether or not further relief is or could be claimed. ....
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1 Reported in 188 P.2d 677. J.G. Dickson was, by an order of the superior court for Pierce county, entered November 9, 1944, appointed receiver of the Henry Mill Timber Company, a corporation, in a voluntary dissolution proceeding. The United States of America voluntarily became a party to the action by filing therein a claim for damages arising from the alleged breach by the mill company of a co...
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J. G. Dickson was, by an order of the superior court for Pierce county, entered November 9, 1944, appointed receiver of the Henry Mill & Timber Company, a corporation, in a voluntary dissolution proceeding. The United States of America voluntarily became a party to the action by filing therein a claim for damages arising from the alleged breach by the mill company of a construction contract entere...
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1 Reported in 188 P.2d 684. This is an appeal by Louis Halle, as executor of the estate of Nellie Halle, deceased, and individually, from an order made and entered by the superior court for Spokane county in cause No. 36779, on January 11, 1947. The order appealed from will be more specifically referred to later in this opinion. Louis Halle and his deceased wife, Nellie, were married in Chicago, I...
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This is an action for damages prosecuted by plaintiff, Thomas Wayne Rudd, a minor, by his father and next friend, against defendants, Spicers, Incorporated, the American Fidelity & Casualty Company, and Vernon Eugene Miller. The jury returned a verdict in plaintiff’s favor for $20,000 and judgment was rendered on the verdict against Spicers, Incorporated, and Miller for $20,000 and against the Ame...
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The plaintiff in error, Lewis Grayson (a Negro), hereinafter called defendant, was charged, tried, and convicted of first degree rape and his punishment fixed by the jury at death. The record herein discloses that the complaining witness, Doris Gene Coley (a white girl), and her fiance, who later became her husband, were sitting in an automobile in Muskogee, Okla., on the night of October 11, 1945...
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Defendant, Sam Kutz, was charged in the court of common pleas of Oklahoma county with the offense of selling intoxicating liquor; was tried, convicted and his punishment fixed at a fine of $50 and imprisonment in the county jail for a period of 30 days. From this judgment and sentence he has appealed. For reversal of this case, defendant sets out three assignments of error, as follows: "Instigatio...
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The defendant, Glenn Adrian Carr, was charged in the district court of Oklahoma county with the crime of burglary in the second degree, was tried, convicted by a jury with sentence left to the court. The trial court thereupon sentenced the defendant to serve a term of seven years imprisonment in the State Penitentiary, and he has appealed. The proof of the state showed that on the night of August ...
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Silas Louis, petitioner, filed in this court a petition for writ of habeas corpus, alleging that he was unlawfully imprisoned and restrained of his liberty in the county jail of McCurtain county at Idabel, Okla., by C. H. Roan, sheriff of said county. Petitioner further alleges that he was committed to the county jail and sheriff Roan pursuant to an order of C. E. Sweet, justice of the peace, o...
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A jury awarded plaintiff a substantial verdict against the defendants as damages for the death of his three year old son, David John Fowler, who was killed on April 27, 1944, at about 3:00 p.m., in an accident on the elevator of the corporate defendant's building. Defendants appeal from such judgment. The Medical Arts Building is a 10 story office building in Salt Lake City in which three elevator...
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This is the second appeal in this case. See Free v.Farnworth, et al., 105 Utah 583, 144 P.2d 532. On this appeal defendants Alice Farnworth and D.A. Skeen challenge the judgment whereby a prior Federal court judgment lien of defendant Regional Agricultural Credit Corporation of Salt Lake City (hereinafter called the "Credit Corporation") is foreclosed and the property in controversy is ordered to ...
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Action by the plaintiff, as administrator, to recover from the defendant the value of twenty shares of stock alleged to have been a part of the assets of the estate, and alleged to have been converted by the defendant to his own use. Defendant demurred generally upon the ground that the complaint did not state facts sufficient to constitute a cause of action against him; and specially, for other r...
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Hyrum Frank, as truck driver, and his father and employer, George Frank, each brought suit for damages sustained in consequence of a railroad crossing collision in Provo, Utah. On stipulation of the parties, the cases were consolidated for trial, since the same evidence was applicable to both cases. Each plaintiff recovered a verdict; the defendants appeal. *Page 424 There is sufficient evidence ...
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Plaintiff appeals from an adverse judgment in an action upon a written contract which defendant alleges was mutually rescinded. For some years prior to March, 1941, plaintiff was engaged in the business of furnishing reports to dealers, of new and used car sales and transfers. On March 3,1941, the parties entered into a written agreement whereby plaintiff agreed to furnish defendant for its mem...
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Prior to 1931, the defendants Chapman estate and Alfred Chapman, trustee, were the owners of a tract of land. Thereafter it became involved in the seven transactions hereinafter mentioned. First transaction. In that year the Chapmans conveyed to the city of Pasadena Parcel 1 of that tract. They also conveyed to the city a 25-foot easement for road and pipeline purposes over Parcels 4 and 5, the...
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Plaintiff real estate broker appeals from an adverse judgment in his action to recover a commission which he contends that he earned by procuring a purchaser for certain real property owned by defendant. Trial was before the court sitting without a jury. Plaintiff attacks the judgment on the grounds that the evidence is insufficient to support certain essential findings and that the trial court...
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Roy A. Gale and his brother, Melvin C. Gale, sued to impress a trust upon certain real property distributed to John H. Witt in accordance with the will of their mother, Ada L. Gale. Upon appeal from the judgment of dismissal, which followed an order sustaining an objection to the introduction of any evidence in support of the allegations of the complaint, the question for decision concerns the ...
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Plaintiff sued on four checks of $500 each given to plaintiff in payment for chips to be used by defendant in a game of “low ball” or draw poker. Plaintiff was the owner of the premises in which he conducted a gambling establishment. He knew that the checks were given for the purchase of chips, that the chips would be used by the defendant in the game which was then in progress, and that one of h...
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This is an action by Mary Sanders, individually and as administratrix of the estate of her deceased husband, for damages arising out of an alleged eviction of plaintiff and her husband from an apartment in the city of Los Angeles. The demurrer of defendant George S. Allen to the fifth amended complaint was sustained with leave to amend. Plaintiff declining to amend further, a judgment of dismis...
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Plaintiff and defendant are both veterinarians. In 1935, defendant sold a veterinary business and pet hospital theretofore conducted by him to one Dr. Haidy. He covenanted not to engage in a similar business within “an area of five miles” from the location sold and this contract ran to the purchaser’s heirs and assigns. Plaintiff later purchased the business from Haidy. Defendant applied to the c...
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I dissent. The court instructed the jury as follows: “You are instructed that a contract, whether written or oral, is an agreement between two or more parties, competent to contract, upon a lawful subject matter with a legal consideration and a mutuality of agreement and obligation. Such a contract is the one alleged to have been made in this case, and it should be enforced if its terms are establ...
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The plaintiffs and respondents purchased a parcel of tax-deeded property from the State of California on November 27, 1941. They thereafter brought this action to quiet their title to the property. The State of California *331 asserted a lien in the sum of $107.99 against the property for delinquent franchise taxes incurred by the Seske Investment Company in 1932 and 1933, at which time that co...
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This is an appeal from an order denying the petition of Lena K. Nelson to dismiss the proceedings in the above named estate on the sole ground of lack of jurisdiction of the probate court for the alleged reason that at the time of her death the decedent was not a resident of the State of California but resided at Klamath Falls, Oregon. By the terms of her will and the codicils thereto respondent R...
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Subdivision 16 of section 202, article XIX, of the charter of the city of Los Angeles provides that when a request “to be reheard” has been filed by a police officer who has been removed from the police department after hearing before a board of rights, “The Chief of Police must consider and decide upon such request . . .,” and that “If good reason or cause appears therefor, the Chief of Police m...
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The present controversy arises out of a written option agreement for the sale of certain real property by plaintiff to defendant. The pertinent portions of the agreement provide as follows: "Witnesseth : That for and in consideration of the sum of Two Hundred Fifty Dollars ($250.00) to him in hand paid, the receipt whereof is hereby acknowledged, the party of the first part hereby agrees to hol...
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This is an appeal from a judgment entered in a declaratory relief action brought by the. respondent First Trust and Savings Bank of Pasadena, as trustee, to secure an adjudication as to whether the appellant, Frank B. Costa, or the respondent Pasadena Historical Society was entitled to conveyance of certain real property held by it as trustee under a trust indenture executed by Elma B. Stuart. Fro...
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This action was instituted in the justice’s court by appellant "V". Sands for the recovery of unpaid rent under an alleged written lease from him to respondent, Eagle Oil and Refining Company, Incorporated. Respondent denied that the parties entered into said lease and with authorization of the court filed a cross-complaint bringing in appellant J. H. Tarman as a cross-defendant. As amended the...
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This is an appeal by defendant from a judgment in favor of plaintiff for $1,000 general damages and $850 special damages. The case was tried without a jury. Defendant’s motions for nonsuit and for a new trial were denied. On the morning of November 23, 1945, appellant Paul Black was driving his Packard sedan southerly from San Francisco on Highway 101, a six-lane paved arterial highway, co...
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The defendants were charged with the violation of section 288a of the Penal Code and, in a second count, with the violation of section 286 of that code. A jury found them guilty on both counts and they were sentenced *407 accordingly, the sentences to run consecutively. A motion for a new trial was denied and each defendant has appealed from that order and from the judgment. The defendants, w...
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Thomas R. Welch died in April, 1933. His only heirs were his daughter, Vella Johnson, and a grandson, Thomas Kenneth Welch, who was the son of a deceased son. This grandson, who was eight years old at the time of the testator’s death, was killed in a plane crash over Belgium in 1945, while serving in the Army Air Forces. He was married in 1943, and his surviving wife and child are the appellants h...
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This is an appeal hy the defendant from a judgment in which it was decreed that the copartnership existing between plaintiff and defendant, uncle and nephew, respectively, by virtue of a written agreement dated September 1, 1945, was terminated by the mutual consent of the parties on December 24, 1945; that an accounting was had on December 26,1945; that plaintiff pay to defendant $741.97; and ...
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This is an appeal by the defendants Walter’s Fur Shop, Walter G. Kurkjian and Charles W. Kurkjian, as individuals and doing business under the firm name and style of Walter’s Fur Shop from an order denying their motion for change of venue from the city and county of San Francisco to the county of Fresno, where they have their residence. The complaint mentions as codefendant G. Giacomini, a *38...
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This action was brought by plaintiffs against defendants to recover damages for the alleged fraud and deceit of defendants. The cause was tried before a jury, resulting in a verdict of $3,500. Defendants appeal from the judgment entered on that verdict. Appellants do not challenge the sufficiency of the evidence to sustain the implied finding that they were guilty of fraud; in fact, the sole po...
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Plaintiff brought this action to recover damages suffered in the flooding of his place of residence in 1945 *415 by the diversion of surface waters from the defendant’s right of way onto the plaintiff’s land. It is undisputed in the evidence that the water flooded under the plaintiff’s home and stood there for a matter of some weeks damaging the furnace. It is likewise without dispute that the ...
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This is an appeal by plaintiffs from an adverse judgment in an action for unlawful detainer. Plaintiffs are the successors in interest of the original lessors, who leased certain real property in the city of Los Angeles to defendant corporation for a period of five years with an option to renew for an additional five years, which option the defendant exercised. On April 12, 1946, while the lease w...
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This is an" action by a stockholder in a mutual water company to compel the delivery of water to him in a certain manner. The defendant corporation was organized in 1912, and since that time has supplied water to its stockholders for domestic use, and for irrigation use upon lands within a certain area, although its name was changed to the present name in 1917. The company has certain wells, pumpi...
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This is an original action in this court brought by the Special Indemnity Fund to review an award of the State Industrial Commission in favor of Walter E. Reynolds by virtue of his being a “physically impaired person” within the provisions of 85 O. S. Supp. 1943, §§171 and 172. The parties will be referred to as claimant, respondent, and the Fund, as they appeared before the commission. The employ...
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This is a proceeding brought by petitioner, Alsey Bradford Lipscomb, to review an order denying an award made by the State Industrial Commission in a proceeding in which Goodyear Service Store, the employer, and Hartford Accident & Indemnity Company its insurer, were respondents. The order from which the proceeding was prosecuted was entered on the 10th day of November, 1947. The Secretary of the ...
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This action was commenced by plaintiff, Clara Butler, against Civic Gas Company, the city of Atoka, S. J. Campbell, the Gas Service Corporation, and Southeastern Gas Company to recover damages for the destruction by fire of her residence and contents thereof, in the city of Atoka. The trial court sustained demurrers of the several defendants to plaintiffs evidence, and directed a verdict for defen...
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Plaintiff brought this action recover damages for personal inju. alleged to have been received while paying passenger in one of defends ’s cabs as a result of the negligence ...
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Sherman Sylvester Brown died at Henryetta, in Okmulgee county, on June 2, 1944, as a result of an accidental injury received by him in the mine of Ben Hur Coal Company on the preceding day. He left surviving two children aged, respectively, nine and eleven years, born of different mothers, a widow whom he had married less than a month after his divorce from a former wife, and less than six months ...
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This is an appeal from a decree quieting title in the Denver Producing & Refining Company to the oil and gas-mining leasehold covering the W. y2 of S. W. Vi, see. 10, twp. 13 N., R. 4 W. in Oklahoma county, and all production therefrom except the Vs royalty portion. The facts are not in dispute since they are all stipulated or conclusively proved. The question presented is one of law. The record d...
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This action was brought by plaintiffs, Grover C. Meeker and Zoe Marie Meeker, against Denver Producing & Refining Company, for damages arising out of the operations by defendant under an oil and gas lease upon the land of plaintiffs. From a verdict of the jury and judgment in favor of plaintiffs, in the sum of $1,045, defendant appeals. Plaintiffs’ petition alleged an unreasonable use of the surfa...
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Petitioners seek to prohibit respondent from exercising jurisdiction in the trial of cause 111,545 pending in the trial court. By the pending action, W. A. Preston seeks in the district court of Oklahoma county to determine an interest in land situated in Payne county, consisting of an oil and gas royalty alleged to have- been acquired as a result of his joint adventure with defendants. 12 O. S. 1...
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This is an appeal from a judgment of the district court admitting the will of John V. Martin to probate, on appeal from the judgment of the county court denying probate of the will. The will was made August 20, 1945, and Martin died February 16, 1946, being then past 90 years of age., The will devised all of testator’s property consisting principally of a farm of the value of some $20,000 to Letha...
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Weisberger and Weisberger, doing business as National Products Company, sued United States Fidelity & Guaranty Company, surety on the official bond of the county clerk of Latimer county, to recover the purchase price of janitor’s supplies. From a judgment for the defendant, the plaintiffs have appealed. The plaintiff joined the county clerk and the board of county commissioners as defendants, but ...
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Taylor sustained a compensable injury to the thumb of his right hand on September 8, 1945. Theretofore by accident he had suffered an injury to the same hand whereby his fingers were seriously injured by amputation and otherwise. He is a physically impaired person as defined by the Special Indemnity Fund Act. None of said injuries, though described and the disability to the fingers and thumb estim...
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This is an action to quiet title and cancel deeds brought by plaintiff, Margaret E. Protheroe, against defendant Ora Ethel Bell. The case was tried to the court as one of equitable cognizance, judgment was rendered for plaintiff, and defendant appeals. From the record it appears that the following facts were established by the evidence: Plaintiff was the stepdaughter of Lewis J. Bell, who, in his ...
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This is an action of equitable cognizance wherein the plaintiff, as the judgment creditor of C. O. Buckles, seeks to subject property in the name of R. A. Buckles, the wife of the debtor, to the payment of the judgment. Judgment of the trial court was for plaintiff, and defendant has appealed. In 1924, 1925, and 1927, C. O. Buckles became indebted to plaintiff in the aggregate sum of $25,500, evid...
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The defendant, Jewel Stone, was charged by information filed in the district court of Oklahoma county, on September 6, 1941, with the crime of wife and child abandonment. On September 15, 1941, the defendant entered his plea of guilty to said charge and was sentenced to serve a term of five years imprisonment in the State Penitentiary. At the same time and place an order was entered suspending the...
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Defendant, Bill Jackson, was charged in the county court of Bryan county with the unlawful possession of intoxicating liquor, to wit: Ten *Page 7 half-pint bottles of Ron Donna Rum, and two pint bottles of Seagram 7 crown whisky; was tried, convicted and sentenced to pay a fine of $50 and serve 30 days in the county jail, and has appealed. The Attorney General, on behalf of the state, has filed a...
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LUONA CASADY, plaintiff below, recovered a judgment against W. T. Grant Company, a corporation, defendant, to review which this writ of error. *Page 407 The action was originally instituted against the Grant Company, and the City and County of Denver, a municipal corporation. Upon trial to a jury the city was exonerated and is not a party here. It is alleged in the complaint that plaintiff, witho...
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IN this opinion we will refer to Joe Gregorich, Jr., plaintiff in error, and to Industrial Commission of Colorado, Oliver Coal Company, and Employers' Mutual Insurance Company, defendants in error, as claimant, commission, company and carrier, respectively. On March 31, 1941, claimant sustained an injury in a mine accident while employed by the company. Notice and claim for compensation was filed ...
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EARL RALPH WIDMAN, plaintiff in error here, plaintiff below, brought an action against Grover Cleveland Ashcraft to recover judgment for damages allegedly sustained by him as the result of a collision between the automobiles owned by the respective parties. Defendant's motion for summary judgment was granted and judgment entered accordingly. Plaintiff here seeks a reversal. The complaint was based...
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Judgment affirmed in department without written opinion, Mr. Chief Justice Burke, Mr. Justice Hilliard and Mr. Justice Hays, participating. *449 Mr. A. W. McHendrie, Mr. George M. Corlett, for plaintiff in error. Mr. V. G. Seavy, Mr. T. L. Witcher, for defendants in error. ...
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PLAINTIFF in error, hereinafter referred to as defendant, on an information charging that said defendant "on or about the 1st day of July, 1946, within the County of Crowley, did unlawfully and feloniously kill and slay one Eva Valdez," was returned by a jury "guilty of involuntary manslaughter in the manner and form as charged in the information"; whereupon he was sentenced to a term of nine mont...
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THIS is a will contest case, and involves the question of the legal authority of attorneys to bring a case to this *Page 421 court and ask for supersedeas after their client has signed a stipulation for its dismissal. We will herein refer to plaintiff in error as Robert Jones and defendant in error as Icel May Jones. Counsel who appeared in the trial for Robert Jones sued out the writ of error he...
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THE parties appeared in reverse order in the trial court, and we shall refer to them as there appearing. Plaintiff and her husband, James F. Cooper, while walking north along the east side of Franklin street in the city of Denver, and crossing Sixth avenue shortly after noon on a clear day, were struck by a panel delivery truck being driven west on Sixth avenue by defendant's agent. Defendant here...
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PLAINTIFF in error sued defendants in error for damages allegedly caused by wrongful acts committed by them in connection with the handling of a carload shipment of goat cheese which moved from Trinidad, Colorado to New York City, New York, in February, 1942. The First National Bank of Trinidad, one of the defendants in error, filed a motion to dismiss plaintiff in error's amended complaint for th...
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THIS suit for personal injuries and property damage grew out of an automobile accident. We will herein refer to Otis Amos, plaintiff in error, as Amos, and Remington Arms Company, and Vern S. Davis, defendants in error, will be designated as the Arms Company and Davis, respectively. Minnie Armstrong was notified at the Arms Company's plant, where she was employed, that her house in Denver was on f...
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The opinion of the court was delivered by This is an action to quiet title to real estate. The plaintiffs recovered and the defendants appeal. All that needs to be said with respect to the pleadings is that they raise the issue whether defendants are still the owners of an undivided one-half interest in the minerals in and under the tract of land involved by virtue of a mineral deed conveying suc...
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The opinion of the court was delivered by This was an action wherein the plaintiffs based their right to relief on two causes of action. In the first they sought reformation of a written contract. In the second they asked for an accounting and the recovery of money under an agreement alleged to exist between the parties for the sale of a doughnut business. The case was tried in the court below, a...
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The opinion of the court was delivered by This was an action on a contract which was in part oral and in part written. Plaintiffs sought specific performance and damages if performance could not be had. The trial court held that the written part of the contract was illegal and void but gave judgment for specific performance under the oral part of the contract. The defendants appeal from the judgme...
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The opinion of the court was delivered by This is a special statutory proceeding pursuant to the provisions of G. S. 1935, 21-2162 et seq., for forfeiture of an *256automobile alleged, to have been used as a common nuisance in the transportation of intoxicating liquor. On December 22, 1946, the automobile in question was seized without warrant by the sheriff of Marion county, Kansas. The followin...
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The opinion of the court was delivered by The factual situation upon which this appeal is based-can be briefly stated. At a preliminary hearing held before the judge of the city court of Wichita, sitting as a magistrate, the appellee, who was charged with a felony under the provisions of G. S. 1935, 21-915, prohibiting the keeping of a common gaming house or a place where persons were accustomed t...
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The opinion of the court was delivered by This was a suit for an accounting and for specific performance of a written contract. Plaintiff appeals from an order sustaining a general demurrer to her amended petition. While there were three parties to the contract, the plaintiff, the defendant and her mother, the mother is not a party to the action. We shall continue to refer to the parties as plain...
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The opinion of the court was delivered by This was a proceeding in garnishment brought to recover delinquent personal property taxes. The trial court set aside the- garnishment summons and discharged the garnishee, and the county appeals. The question presented is whether under the facts presently to be stated, garnishment could be maintained. .The facts are not in dispute and the regularity of th...
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The opinion of the court was delivered by Two questions are involved in this workmen’s compensation case. The first is whether the district court erred in awarding compensation at the rate of $18 a week for not exceeding 415 weeks, when the total and continuing disability may have been caused in part by the recurrence of a left inguinal hernia, for which original hernia the claimant had been full...
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The opinion of the court was delivered by The first two of these appeals are from an order overruling defendant insurance company’s demurrer to plaintiff’s petition in each case. The defendants were the same in each case but with a different plaintiff. The third appeal is from an order of the trial court refusing to enjoin the defendant truck operator in the former two cases from carrying on an a...
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The opinion of the court was delivered by This was an action in which plaintiff sought to compel the defendant to reconvey an interest in real estate. Defendant’s demurrer to plaintiff’s petition was overruled and he appeals. In her petition plaintiff alleges that the defendant corporation is a common-carrier railroad operating trains through Morris county, Kansas, and that it is in the hands of ...
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The opinion of the court was delivered by The appeal in this case is from a declaratory judgment of the district court and involves consideration of a constitutional provision and a statute of Kansas pertaining to alienation of homestead interests. The district court held, in substance, that when an incompetent person has an interest in a homestead which was occupied by the family of the incompete...
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The opinion of the court was delivered by This was an action by a widow to recover damages for the wrongful death of her husband in an automobile accident. He and another man were riding in a coupé being driven by the defendant when the accident occurred. The plaintiff appeals from orders sustaining a demurrer to her evidence and overruling her motion for a new trial. Her principal contentions are...
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The opinion of the court was delivered by This was an action to recover damages to property and for injuries to a person resulting from a collision between an automobile and a railroad engine operated by the Hercules Powder Company. *198The defendants are Hercules Powder Company and Louis Mize, its engineer of a Diesel engine. The defendants and the plaintiff have both appealed. The first appeal ...
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This is an appeal from a judgment that the plaintiffs take nothing by their complaint to quiet title, and that the plaintiffs convey the premises to the defendants in accordance with the terms of certain escrow instructions. The facts are substantially *Page 361 as follows: On September 12, 1945, James J. Heckman and Ella Heckman, his wife, appellants and plaintiffs below, owned as community prop...
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Taylor Brothers Company, the respondent herein, commenced an action against Don H. Duden and Donna Duden Peterson, as defendants, for the possession of a piano and bench sold to Don H. Duden on a title retaining note. Don H. Duden who was served outside the state did not appear or answer but Donna Duden Peterson answered claiming title to the property and pleading that as to her, respondent's acti...
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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 499 Ralph Smith was convicted of having by force, threats and intimidation endeavored to coerce a person employed by another from continuing and performing his work, and he appeals. AFFIRMED. The defendant, Ralph Smith, was indicted, jointly with another pers...
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Relator brought this proceeding in mandamus to compel Garfield county and its commissioners to sell to him certain described land consisting of about 640 acres at the appraised value thereof and to set aside a sale made to him at public auction. The lands in question were acquired by the county through tax deeds. Prior to March 4, 1942, the county had offered them for sale at public auction but no...
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OPINION The parties to this appeal will be designated, for convenience, as plaintiffs and defendants, respectively, as they were in the lower court. *Page 44 It is admitted, in the defendant's answer to the amended complaint, that on the 8th day of July 1944, the plaintiff, Ruth Nyberg, accompanied defendant Harriet Katherine Kirby, riding in an automobile truck, ...
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