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All Reporters → p2d → Volume 2

Opinions in p2d Volume 2

On the 15th day of July, 1927, a decree of divorce was granted herein to plaintiff, which decree, among *Page 181 other things, awarded the care and custody of Melvyn Charles Friendly, a minor son of the parties, to the plaintiff. The decree further provided: "That after the completion of the grammar school course in the public schools, for which approximately two years will be required, the said...
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In Banc. By indictment returned in the circuit court for Jackson county on February 2, 1931, the defendant was charged with the crime of murder in the first degree by shooting and killing one Sam Prescott in Jackson county on January 24, 1931. Upon arraignment he entered a plea of not guilty. He moved the court for a change of venue, which motion was denied. As a result of the trial, the jury retu...
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The defendant was convicted of the crime of receiving a bribe, as defined by section 14-406, Oregon Code 1930, while serving as a police officer of the city of Portland, and appeals, bringing to the attention of this court seven assignments of error. June 3, 1930, at eleven o'clock p.m., the defendant and his brother officer, one B.B. Baird, discovered an automobile parked in the darkness upon one...
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This is a suit to enjoin the collection of a special road tax of ten mills levied on all taxable property in road district No. 9, Columbia county. From a decree invalidating the tax and enjoining the collection thereof, the defendant officials of Columbia county appeal. On October 11, 1929, a petition was filed with the county court requesting that a district road meeting be called for the purpose...
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This suit was instituted by the bringing into court of $2,140.64 and the filing of a bill of interpleader by the State Superintendent of Banks, praying that the defendants set forth their several titles and interplead, settle and adjust their demands between themselves. The defendant, Martin Burkhart, answered, setting forth that individually and as administrator of the estate of Frank Burkhart, d...
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Plaintiff owns certain real property in Salem which he was desirous of selling or exchanging for other property. He applied to defendant, a real *Page 231 estate broker of Salem, who informed him that he had a client who owned property in Harrisburg and who might make an exchange of the properties, and it was then arranged that plaintiff and defendant would go to Harrisburg to examine the propert...
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This is an action to recover compensation for services performed by plaintiff. The essential facts are few and not disputed. On June 16, 1913, by resolution of the board of directors of defendant corporation, plaintiff, the president of said corporation, was appointed general manager, his compensation to be treasury stock of the par value of $200 per month. He rendered the services called for in 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 133 THE COURT. This action was brought by O'Hara, the purchaser of certain described real property in Solano County, and by the Good Templars Home for Orphans, the seller of that land, as plaintiffs, against the Grand Lodge of the Independent Order of Good Te...
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THE COURT. This action was commenced by the plaintiff to obtain an injunction aimed to prevent the defendant City and County of San Francisco and its officials from carrying into effect the provisions of a certain resolution adopted by the board of supervisors of said municipality on December 12, 1927, and approved by the mayor thereof on December 23, 1927, directing the board of public works *Pag...
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Appeal from a decree quieting title of respondent, Annie S. McGinerty, cross-complainant in an action brought by appellant to quiet his title to lot No. 3, block 11, as per map of the property of City Land Association, filed for record August 24, 1870, in books "C" and "D" of maps, page 11, in the office of the recorder of the city and county of San Francisco. The situs of said lot is in the local...
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Appellant was convicted of the crime of robbery in the first degree. From the judgment pronounced upon him and from the order denying his motion for a new trial, he has prosecuted this appeal. The information filed by the district attorney of Riverside County charged appellant with the crime of robbery accomplished by means of force or fear on the twenty-ninth day of December, 1930, and alleged a ...
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This application was made in behalf of Luther Branham. The petitioner alleges that he is unlawfully imprisoned and detained 'by the sheriff of San Diego County. It is further alleged that he was found guilty of violating section 367d of the Penal Code by the police judge of the city of Chula Vista and by him sentenced to pay a fine of $50 or, in lieu thereof, to be confined twenty days, in the co...
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[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 614 This is an action to recover money paid for certain stock in a corporation, which stock was never delivered. The general situation leading up to the controversy is as follows: Thomas J. McLemore, a business man of large experience and considerable success...
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The petitioner is the insurance carrier of the "San Francisco Chronicle," a daily newspaper. The state compensation insurance fund is the insurance carrier of the "San Francisco Examiner." John L. Du Grosse was employed by the "Examiner" to sell its newspapers on a designated street corner in the city and county of San Francisco. At the same time he was engaged in selling copies of the "San Franci...
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This is an original proceeding in certiorari to review an award of respondent in favor of Frank Healy and adverse to the respective insurance carriers of the "San Francisco Examiner" and the "San Francisco Chronicle." [1] The nature of the proceeding and the material facts are the same as in Associated IndemnityCorp. v. Industrial Acc. Com. (Civil No. 7473), ante, p. 754 [2 P.2d 51]. For the reaso...
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This is an original proceeding in certiorari to review an award of respondent in favor of Earl Joy and adverse to the respective insurance carriers of the "San Francisco Examiner" and the "San Francisco Chronicle." The petitioner herein, as the insurance carrier of the "Chronicle," attacks that portion of the award adverse to it. [1] In so far as this petition is concerned the facts are the same a...
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Plaintiff, assignee of a copartnership, filed his complaint on August 14, 1928, stating two causes of action against defendant corporation and others, the first for an indebtedness of $1,000 on an open book account for legal services rendered by plaintiff's assignor, and the second an account stated for the same services and amount. The defendant Monte Regio Corporation filed its answer and the ca...
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This is an action for money had and received. Defendant answered denying the allegations of the complaint and setting up the provisions of sections 337, subdivision 1, 338, subdivision 4, and 339, subdivision 1, of the Code of Civil Procedure in bar of the plaintiff's cause of action. At the close of plaintiff's evidence defendant moved for a nonsuit, which the court did not pass upon until after ...
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HOLCOMB, J., dissents. William Stingley, Herman Hoop and Frank Simons were jointly informed against for the crime of grand larceny committed in Adams county, by unlawfully and feloniously stealing and carrying away six head of cattle, of greater value than twenty-five *Page 691 dollars, to wit, three hundred dollars or thereabouts, being the property of one Oscar Danielson. Defendant Hoop confess...
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The appellants, together with Robert Bacon and Minnie Tranchell, were jointly charged by an information containing two counts with the crimes of being jointists. Count I charged the four defendants with opening up, conducting and maintaining a place at the Linde Apartments for the unlawful sale of intoxicating liquor, and count II with opening up, conducting and maintaining a joint at the Bungalow...
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Respondent herein sustained an injury on April 24, 1929, while employed as a common laborer by the city of Spokane in an extrahazardous occupation. He filed a claim for compensation which was allowed, and, after the injury became fixed, the disability was classified as a permanent partial one of ten degrees which, based upon the classification defined in the *Page 550 statute relating to such cas...
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The appellant corporation, as plaintiff, brought this action, alleging its corporate existence, its authority to do business in this state, and set forth by particular description numerous tracts of land in Cowlitz county of which it is the owner, alleging specifically the actual value of each tract, and asserting that the county had valued each for taxation purposes far in excess of the true valu...
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TOLMAN, C.J., dissents in part. This is a will contest. E.B. Palmer, being named as executor and a legatee in a document purporting to be the last will and testament of Lois K. Appleton, deceased, offered the document for probate in the superior court for King county, and petitioned in usual form that it be admitted to probate and established as her last will and testament. William Hicks, Henry Hi...
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The opinion of the court was delivered by This is an action for damages to an automobile and for personal injuries alleged to have been sustained by plaintiff in a collision with the defendant’s train, and to have resulted from defendant’s negligence. The jury answered special questions and returned a verdict for plaintiff. Defendant has appealed. Defendant’s tracks and right of way extend north ...
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Plaintiffs, who for some time had been conducting a service station in the city of Bremerton, stated in their complaint two causes of action. In the first, they alleged that, between January 10 and October 1, 1929, they had sold 38,010 gallons of defendant's gasoline, upon which they were entitled to an allowance of two cents per gallon more than they had *Page 84 already received. In the second ...
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The opinion of the court was delivered by The appeal was taken from an order refusing to dismiss a ease for want of jurisdiction. The case was before the district court on appeal from a justice of the peace, and the contention was the justice of the peace had no jurisdiction because the amount involved, with interest, exceeded $300. The action was one for an attorney fee of $700. The bill of parti...
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From the opinion of this court in the case of A.E. Dailey,Respondent, v. F.O. Dailey, Appellant, 148 Wash. 668,269 P. 1118, it appears that December 4, 1926, a decree was entered by the superior court for Snohomish county, denying Mr. A.E. Dailey's application for a divorce, dismissing his complaint with prejudice, and granting to Mrs. F.O. Dailey, for her support and maintenance, the sum of fifty...
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The opinion of the court was delivered by A petition for a rehearing and also a motion to clarify the opinion have been filed by the appellee. The appellants have filed answers to both petition and motion, and these papers show such a divergence of views as to the application of the rulings to the property of both estates, and the distribution thereof, that it seems advisable to restate more speci...
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The opinion of the court was delivered by This appeal involves the legal settlement and residence of a poor and dependent family and the determination of which of two counties is responsible for the care of the dependents. Florence Sceals, her husband and five minor children were residents *495of the city of St. John, in Stafford county, up to October 3,1928, and had a legal settlement there. Upon...
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This is an appeal by the officials of the United States veterans' bureau and by the guardian of the estates of certain minors from an order of the trial court making certain allowances from the corpus of the estates, the particulars of which will be hereinafter more fully set forth. [1] At the outset, we are met by a motion to dismiss the appeal of the Federal officials, upon the theory that they ...
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The opinion of the court was delivered by This is. an action to recover on a written contract. Plaintiff prevailed, and defendant appeals. The action was originally filed in the city court of Wichita, and it is alleged in the bill of particulars that on June 3, 1925, the parties entered into a written contract, which recited that they were accountants residing in Wichita; that the defendant was ne...
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The opinion of the court was delivered by J. D. Hinkle brought this action to rescind a contract made in his purchase of real property from the defendant, George W. Ward. At the close of his evidence the court sustained a demurrer thereto and gave judgment for the defendant. Plaintiff appeals. Ward, it appears, owned the property contracted for, which consisted of two lots in the town of Piercevi...
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This action was brought by Henson and Hill, as co-partners, against Yakima First National Bank, a corporation, defendant (for which, by order of court, First Security Loan Co., the real party in interest, was substituted as defendant), to recover judgment in the sum of $3,912.03, which amount it was alleged that the bank had unlawfully paid out of partnership funds by applying them in payment of ...
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The opinion of the court was delivered by This is an action by a real-estate broker for a commission. Another real-estate broker intervened and claimed the commission. The owners of the property sold conceded they were liable to a commission, paid the money into court, and asked to be relieved from further liability. Their concern here is that they not be required to pay two commissions. The prin...
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This is an action for specific performance. George A. Hale and Elizabeth C. Hale, a marital community, let certain premises in Whatcom county to the plaintiff for two years from September 1, 1927, by a written lease, which contained two options – one for renewal for one year, and one to purchase the premises at any time prior to August 31, 1930, which was the date of the expiration of the lease if...
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The opinion of the court was delivered by This action is by school district No. 12, Ottawa county, against the county treasurer and board of county commissioners of Ottawa county, to recover something more than $7,700, alleged to be in the hands of the county treasurer, belonging to the plaintiff school district. The answer of the defendants was a general denial and allegations of having overpaid ...
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This is the second appeal in this case. A full statement of the pleadings and of the contracts involved may be found in the opinion on the other appeal, 156 Wash. 369, 286 P. 853. On that appeal, it was held that the trial court erroneously granted defendant's motion for judgment on the pleadings, and the case was remanded with directions to the trial court to determine from the evidence the right...
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On the 22nd day of December, 1926, Belle Depew Dearborn applied to the county court of Noble county for letters of administration on the estate of William W. Dearborn, deceased. She alleged that she was the widow of deceased, and that the other heirs were two daughters and two sons of deceased. Plaintiff in error, Lila M. McCreath, one of the daughters of deceased, contested the right of defendant...
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Plaintiff in error, hereinafter called defendant, was convicted in the district court of McIntosh county of the crime of murder, and his punishment fixed by the jury at imprisonment for life in the state penitentiary. *352 The evidence of the state was that the defendant, a negro; lived on a farm northwest of the town of Cathey; that on the 28th day of September, 1929, he went to Eu-fanla to ...
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The stipulation of ,the parties hereto for a settlement of the issues ■ on this appeal, as follows: “It is stipulated and agreed between the parties hereto that item XXXVI cf protestante protest involving the general fund of the Oklahoma City school district shall be sustained as to the sum of $65,111.70! appropriated by the excise board in the general fund under the subhead of ‘capital outlay’...
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The plaintiff in error, hereinafter called defendant, was convicted in the district court of Rogers county of robbery with firearms and was sentenced to serve a term of 25 years in the penitentiary. The record discloses that at the time charged defendant with one Shock entered the First State Bank of Inola and with pistols held up the bank and robbed it of $733. They then departed in an automobile...
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The plaintiff in error, hereinafter called defendant, was convicted in the county court of Kay county of having the unlawful possession of intoxicating liquor, and was sentenced to pay a fine of $150, and to serve 90 days in the county jail. At the time charged, certain officers with a search warrant searched the residence of defendant and found about three gallons of whisky. A motion to suppress ...
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Plaintiff in error, hereinafter called defendant, was jointly charged with Bill Baum and Everett Wimberly with the robbery of the Buschow Lumber Company, at Stapp, Okla. Upon severance, Bill Baum was first tried and found guilty. Thereafter the defendant was placed upon trial and found guilty, and his punishment fixed by the jury at imprisonment in the state penitentiary for 20 years. The evidence...
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The plaintiff in error, hereinafter called the defendant, was convicted of assault and battery, and fined $100. Motion for new trial was filed, considered, overruled, and exceptions saved, and the case appealed to this court. The testimony on behalf of the state, in substance, shows that Mrs. E. M. Clark, the mother-in-law of the defendant, was very ill in defendant's apartment; the prosecuting wi...
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The plaintiff in error, hereinafter called defendant, was convicted in the district court of McClain county of assault with a dangerous weapon with intent to do bodily harm and his punishment fixed at one year and one day in the penitentiary. The record discloses that at the time charged, defendant was about 22 years of age. Otis Reed, the person assaulted, was about 40 years of age and was the pu...
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On August 4, 1928, Chester Knutson, a boy of the age of 12 years, was killed near Tremonton, Box Elder county, Utah, by being run over by a train consisting of a steam engine, a baggage car, and a passenger coach. At the time *Page 147 of the accident, the train was being operated by the defendant company. Fred W. Knutson, the father of Chester, brought this action to recover damages for the deat...
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The plaintiff brought this suit to quiet the right, as against the defendants, to the use of a flow of five cubic feet per second of the waters of Provo river, and also to require T.F. Wentz, as water commissioner of Provo river, to deliver to the plaintiff the water claimed by him. Provo river is a natural water course. It rises in Summit and Wasatch counties, Utah, and flows in a southwesterly d...
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On two prior occasions this cause has been before us on appeal by the defendants. Looney v. Bingham Dairy et al., 70 Utah 398,260 P. 855; Id. 75 Utah 53, 282 P. 1030. The plaintiff has again secured a judgment and the defendants have appealed. On this appeal the defendants claim the judgment should be reversed; because the evidence does not justify the verdict, because the court erred in its instr...
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This is an appeal by the defendant from the district court of Salt Lake county from a judgment of conviction and sentence to pay a fine for displaying on a billboard owned and operated by defendant an advertisement of Chesterfield cigarettes in violation of section 2 of an act amending section 2, chap. 145, Laws Utah 1921, as amended by chapter 52, Laws Utah 1923, as amended by chapter 92, Laws Ut...
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OPINION OF THE COURT Socorro Alarid sued D.G. Gordon and the city of Santa Fe for negligence resulting in personal injuries. By trial amendment to the complaint, Ricardo Alarid, husband of Socorro Alarid, was joined as a party plaintiff. The cause was tried without a jury. From a substantial judgment for plaintiffs, defendants have appealed. We find it convenient to withd...
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OPINION OF THE COURT The plaintiff, appellant, brought and commenced this action in Lea county to quiet title to real estate situate in said county. Service of process upon appellee was by publication. The appellee, not answering, default judgment was rendered by the judge of the district court in Roswell, the county seat of Chaves county, against appellee and others, on ...
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ON COSTS June 17, 1932. [EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] OPINION The appellant filed a cost bill in this case containing a number of items. Respondent filed objections to several of the items, on the ground that they are excessive. *P...
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From a consideration of the pronounced policy of the law against retrospective legislation, there has been *Page 387 evolved a strict rule of construction in this regard. There is always a presumption that statutes are intended to operate prospectively only, and words ought not to have a retrospective operation unless they are so clear, strong, and imperative that no other meaning can be annexed ...
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It was beyond the authority of the trial court to modify the provisions of the original decree. The motion to modify the decree was filed one year and eight months after the entry of the original decree. Under the law of this State (Rev. Laws, sec. 5080, rules of district court) the time within which a judgment or decree may be modified by motion is fixed at six months; the powers of the court mus...
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ON MOTION TO DISMISS APPEALS [EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] The order of December 3, 1930, and made and entered in the minutes of the court of that date, denying appellant's motion for an order modifying the decree of divorce theretofore made on January 4, 1927, was a specia...
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This is a proceeding to review an order of the Industrial Accident Commission denying compensation *Page 352 to the petitioner, Fannette Winthrop, on the ground that the disability complained of was not caused by the injury suffered by said petitioner in the course of her employment by respondent Wetherby Kayser Shoe Company. Petitioner, a woman thirty years of age, was employed as a hosiery cler...
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In this action the plaintiffs seek to permanently enjoin the defendant from declaring the old districts disorganized. The elections for the consolidation of two rural high-school districts were held as provided by chapter 275 of the Laws of 1931, and the injunction is asked for on the ground that illegal votes were cast at the election. The trial court granted a temporary injunction, and from this...
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This cause is now before us on rehearing. We have carefully re-examined the cause and find ourselves unable to reach any other conclusion than that heretofore announced. We adopt a portion of our former opinion, as follows: "Action to recover the statutory penalty provided by section 3 of the Usury Act (Stats. 1919, p. lxxxiii, Act 3757, Deering's General Laws). Defendant had judgment; plaintiff h...
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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 221 This is an appeal from a judgment entered in defendant's favor when the plaintiff refused to amend upon the sustaining of a demurrer to the first amended complaint. [1] The action is one for declaratory relief. Plaintiff is seeking to have it determined t...
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Charges were preferred against petitioner, a member of The State Bar of California, and a citation was duly issued thereon directing him to appear before the local administrative committee of San Francisco, No. 2, The State Bar of California, and show cause why he should not be disbarred, suspended or reproved by reason of his conduct, alleged to involve moral turpitude, dishonesty and corruption ...
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THE COURT. This is a petition to review an award of the Industrial Accident Commission. On February 13, 1930, Manuel Rodgers was killed while blasting trees on a fruit ranch owned by Mrs. Addie Carlson. His wife and daughter applied for a death benefit, and the Commission found that they were wholly dependent upon him. The Commission also found that Rodgers died from injuries sustained in the cour...
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THE COURT. [1] This proceeding arises out of the same facts as Carlson v. Industrial Acc. Com., ante, p. 287 [2 P.2d 151], this day decided. In that case we upheld the finding of the Industrial Accident Commission that the deceased, Manuel Rodgers, was the employee of Mrs. Carlson, and sustained the award to his dependents. The respondent Manuel Gomez was hired by Rodgers in accordance with his au...
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Upon this appeal an attack is made upon the judgment as a whole; hence our discussion need not deal with any provision thereof in particular. The sole question is the sufficiency of the evidence to show a dedication to plaintiff's lands of a water right. The action is to have such dedication declared, the right, when found to exist, measured and the service theretofore existing restored by writ of...
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THE COURT. This is an appeal from a judgment in favor of the defendant on his cross-complaint in an action to recover on two promissory notes given to secure payment of the purchase price of two 16-foot cut Hillside combined harvesters delivered to the defendant by the plaintiff. The defendant by answer denied the indebtedness and by cross-complaint sought to have the notes canceled on the ground ...
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This is an appeal from a judgment in favor of the plaintiff in an action to foreclose a mechanic's lien for architectural services rendered by the plaintiff in the matter of the construction of a residence pursuant to a contract *Page 383 between the defendant Emil Price, as owner, and one Harry E. Jones, as contractor. The controversy centers about the question whether the plaintiff was regularl...
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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 279 THE COURT. This action was instituted by plaintiff against defendant to recover damages for personal injuries sustained by her in a collision between an automobile in which she was riding, owned by her husband and operated by her twenty-one year old son, ...
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THE COURT. A hearing was granted herein in order that we might give further consideration to the questions at issue, after decision by the District Court of Appeal in and for the First Appellate District, Division One, Jorgensen, J., pro tem., writing the opinion. Upon such consideration we are satisfied that the reasoning and conclusions of the appellate tribunal were correct; that the signatures...
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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 337 This is a proceeding in mandamus to compel the chairman of the board of supervisors of Los Angeles County to execute certain bonds alleged to be authorized by the electors of the Los Angeles County Flood Control District. The matter is submitted on a gene...
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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 63 The defendant Hodges was, jointly with Anthony W. Patton, E.T. McCoy and G.M. Hunter, charged with the crime of murder in an indictment returned by the grand jury of Imperial County. The defendant Hunter was never apprehended, the defendant Patton was give...
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Plaintiff Martha J. Lane brought this action against the defendants Walter H. McAlpine and Minnie M. McAlpine, his wife, to recover rental of a certain house used as a residence by said defendants in the city of Marysville. The action was tried by the court without a jury and resulted in a judgment in favor of the plaintiff for $1,077 against both defendants. The judgment also provided that the se...
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The defendant was charged with two separate crimes of forgery, as alleged in two counts of an information filed by the district attorney of Fresno County. The first count charges that on or about October 18, 1930, with the intent to defraud, the defendant falsely uttered, forged and passed a check, a copy of which is set forth, purporting to be a check on the Fresno Branch of the Bank of America, ...
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The plaintiff commenced an action against the defendants to foreclose a mechanic’s lien. The trial court made findings in favor of the defendants and from a judgment entered thereon the plaintiff has appealed. In his complaint the plaintiff based his cause of action on a written contract employing him as architect. The indenture of employment, set forth as an exhibit, is dated January 22, ...
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This appeal is from an order, the effect of which was to determine that Irene Blackburn and Lulu B. Spurling had forfeited their right to the legacies provided in the will of Simon Houston Blackburn to be bequeathed . to them, by having filed objections to the appointment of one Grace B. Killough as one of the executrices of said will. Irene Blackburn who had been named in the will as one of th...
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This is an appeal from an order granting a motion for a new trial in a will contest where the jury found in favor of the proponent on the issue of incompetency. The order does not indicate that it was granted on account of the insufficiency of the testimony, and therefore under the provisions of section 657 of the Code of Civil Procedure we must indulge the presumption that the order was not b...
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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 683 The defendant was jointly charged with one Clarence R. Wilson in an indictment returned by the grand jury of San Diego County with the violation of the Corporate Securities Act of the state of California. The indictment contained three counts. The materia...
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The plaintiff sued to recover a judgment for damages for personal injury. At the end of the plaintiff's case the defendant moved for a nonsuit. The motion was granted. The plaintiff made a motion for a new trial. That motion was denied and the plaintiff has appealed. [1] In his first point the plaintiff contends that the motion for a nonsuit was not sufficiently specific. The motion was based on 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 21 This is an appeal from a judgment of $11,846.80, which was recovered against the appellant, for personal injuries sustained by the plaintiff in an automobile casualty. The plaintiff was employed as housekeeper at the Lincoln Hotel in Stockton. She was the ...
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Plaintiff sued as administrator of the estate of John Eckstrom, deceased, to recover upon a promissory note of $9,000. The cause was tried with a jury and defendant had a verdict. Plaintiff has appealed on typewritten transcripts. When about sixty years of age John Eckstrom was divorced from his wife and moved to the home of the defendant, where he remained until his death, nine years later. Durin...
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Defendant was convicted by a jury of the crime of assault with a deadly weapon. He appeals from the judgment and from an order of the trial court denying his motion for a new trial. [1] Appellant contends that the court committed prejudicial error in permitting the witness Clayburn to testify, for the reason that said witness had remained in the courtroom during the progress of the trial after the...
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A motor-truck owned by the defendant National Ice Cream Company and driven by the defendant McCarthy collided with and overturned a Ford coupe owned and driven by plaintiff, at the intersection of Broderick and Lombard Streets in San Francisco, injuring plaintiff and Mrs. Ellen Murphy, who was riding with plaintiff at the time. Thereafter plaintiff brought this action for damages on account of the...
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Prior to June 1, 1926, plaintiff and defendant Fassel owned together a certain apiary and equipment pertaining thereto, located in San Bernardino County, also some honey and wax at the apiary and certain honey stored with the defendant A.L. Boyden *Page 699 Company in Los Angeles County. Apparently about that date plaintiff sold his half interest in the apiary, equipment, wax and honey to Fassel,...
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Defendant was accused by information of the crimes of rape and incest. The first four counts charged him with rape committed upon the person of a daughter then sixteen years of age, and counts 9 to 12, inclusive, charged the same acts as incest. Counts 5 to 8 charged defendant with rape committed upon the person of another daughter, of the age of fourteen years, all of said acts having occurred on...
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This is an action based upon a bond issued by the appellant Indemnity Insurance Company of North America to the respondent whereby appellant bound itself to pay to the respondent "any direct financial loss, that it may sustain by reason of any act of larceny, embezzlement, theft or any other fraudulent or dishonest act, wrongful abstraction or wilful misapplication", committed during the term of t...
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The main contention of the appellants on this appeal is that the evidence is not sufficient to support the judgment. It is admitted that on the twenty-fifth day of April, 1927, defendant William F. Smiley was, by written instrument, appointed the trustee of plaintiff to receive for her certain money amounting to $8,500 from Orson L. Early, and that on or about the fifth day of August, 1927, the ap...
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On August 20, 1928, default of plaintiff was entered for failure to answer defendant's cross-complaint. Thereafter on December 11, 1928, and pursuant to said default, judgment on the cross-complaint was entered. On February 19, 1929, pursuant to notice given, cross-defendant presented to the court a motion that the said default and judgment be set aside and that the execution on the judgment be re...
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General and special demurrers having been sustained, the plaintiff appealed from the resultant judgment. Respondent Schreiber was a notary public in and for the county of Los Angeles, and the respondent corporation issued its usual bond guaranteeing the faithful performance of her services as such notary public. A deed of trust, bearing the forged signature of appellant as one of three trustees of...
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The plaintiff, Lutitia Smith, was kicked by a horse belonging to the defendants. She and her husband, William C. Smith, brought this action for damages. The cause was tried by the court without a jury, resulting in a judgment in favor of the plaintiffs for both special and general damages in the total sum of $1929.20. From this judgment the defendants prosecute this appeal. Appellants, who are hus...
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This is an action for personal injuries. Judgment went for the plaintiff and the defendants have appealed. On the evening of the sixteenth day of March, 1930, the plaintiff was knocked down and suffered the injuries complained of when he was a few feet from the westerly side of the highway leading from San Mateo to San Francisco. The accident occurred in the city of San Mateo approximately ninety ...
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Defendant was accused under two separate indictments of grand theft. The two indictments were consolidated. Trial was had and he was found guilty as charged in both indictments. Motion for a new trial was made and denied and this is an appeal from the order and judgment. The main point urged for a reversal is that the verdict is contrary to law and the evidence. The first indictment charged that d...
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Petition for rehearing denied October 20, 1931 ON PETITION FOR REHEARING (3 P.2d 987) Defendant has filed a petition for rehearing in which he first assumes that we held in our former decision that the presumption of innocence is not applicable in civil cases and then asserts that, because the presumption is applicable in civil cases...
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This is an action to recover for breach of an alleged promise. The complaint in substance alleges as the inducement for the promise that plaintiff purchased from defendant certain bonds of two irrigation districts of the state of Idaho; that both of said districts have since defaulted in the payment of the bonds and that the bonds are now of no value; that plaintiff sold a part of said bonds so pu...
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THE Santa Fe Land Improvement Company, a corporation, together with forty-six other landowners in Part C, of Sub-district No. 18, of the West and South Side Sanitary Sewer District, hereinafter referred to as District 18-C, brought an action in the district court against the City and County of Denver, and certain of its officers, to have certain special assessments declared invalid; to enjoin and ...
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FREDERICK R. Ross, together with numerous other landowners in the Park Hill Storm Sewer District, in the City and County of Denver, plaintiffs in error, will hereinafter be referred to as plaintiffs, while the City and County of Denver, Colorado, a municipal corporation, and its various officers charged by the city charter with duties respecting special assessments and the collection thereof, defe...
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I concur. The proper determination of the question in hand involves a consideration of two provisions of our statute, Comp. Laws Utah 1917, § 8285, set forth in the prevailing opinion defining larceny and relating to possession of stolen property, and section 8992, also set forth in the prevailing opinion, that a conviction shall not be had on the testimony alone of an accomplice. Both statutes ha...
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The plaintiff brought this action against the defendant, a physician and surgeon at Salt Lake City, to recover damages alleged to have been sustained by him through the negligence of the defendant in removing wax from and treating the left ear of the plaintiff. That the defendant was a licensed physician and surgeon of long practice and experience and in the treatment of diseases and disorders of ...
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BEALS, J., dissents in part. In this action Anna Norton, as plaintiff, recovered a joint and several judgment in the sum of seven thousand dollars against King county and J.L. Anderson, as defendants, for personal injuries suffered from a fall on an approach to a ferry *Page 57 operated by the defendant Anderson. From this judgment, the defendants separately appeal. The facts giving rise to the a...
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This action arose out of an automobile collision at a street intersection. Tbe respondent sued tbe appellants to recover for personal injuries and for damages to bis automobile. The appellants made no counterclaim. Tbe appellant Herman Hun-ziker owned and was driving tbe automobile that collided witb tbe respondent’s car. Tbe appellant Jane Doe Hunziker was joined because of tbe marital relation;...
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This action was brought to recover upon an insurance policy issued by the respondent, The Fidelity Casualty Company of New York, insuring against the burglary of a safe. The person in whose name the policy had been issued, W.G. Beardslee, was made a party defendant, but at the opening of the trial the action was dismissed as to him, with the consent of the other parties. At the conclusion of *Pag...
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The appellant, Dryden Local Growers, is a corporation, organized under the general incorporation laws of the state of Washington. The respondents Dormaier, the respondents Harnden, and the respondents Krause, severally entered into contracts with it, the purport and nature of. which will presently he made to appear. The appellant brought three separate actions against the respondents to recover l...
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This is an appeal from a judgment of the Court of Tax Review sustaining the protest of the Chicago, Rock Island Pacific Railway Company as to the current expense fund of the town of Comanche, Okla., for the fiscal year commencing July 1, 1930, reducing the amount of the appropriation therefor and reducing the rate of levy therefor. The protestee, the town of Comanche, defended the appropriation a...
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The five foregoing styled and numbered cases are attempted appeals by the state from a judgment in favor of defendant sustaining pleas of former jeopardy. The record in each of the cases is identical, except that the indictment in the different cases charges a different embezzlement. To these indictments defendant filed what is styled "Plea in bar and motion to dismiss indictment." This instrument...
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This is a purported appeal from the county court of Pawnee county, from a judgment rendered on the 17th day of November, 1930, convicting the plaintiff in error, hereinafter for convenience referred to as the defendant, with possession of home brew, a substitute or imitation for beer, containing more than one-half of 1 per cent. alcohol measured by volume, sentencing the defendant to serve a term ...
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The plaintiff in error, hereinafter referred to as the defendant, was convicted of selling one pint of intoxicating liquor, and was sentenced to pay a fine of $50 and be confined in the county jail for thirty days. From which judgment and sentence the defendant has appealed. The testimony on behalf of the state is, in substance, as follows: K. W. Greer and Charles Johnson, who were officers, gave ...
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The plaintiff in error, hereinafter called defendant, was convicted in the county court of Choctaw county of having the unlawful possession of intoxicating liquor, and was sentenced to pay a fine of $50, and to serve 30 days in the county jail. An examination of the record discloses that the evidence sufficiently sustains the judgment. A statement of facts is deemed unnecessary. It is urged at len...
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The plaintiff in error, hereinafter called defendant, was convicted in the district court of Okfuskee county of manslaughter in the first degree, and his punishment fixed by the court at imprisonment for 10 years in the state penitentiary. The record discloses that on October 22, 1929, the defendant, a negro, shot and killed one M. A. Combs, another negro, near the town of Boley. Judgment was e...
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The plaintiff in error, hereinafter called defendant, was convicted in the district court of Payne county of the larceny of domestic fowls, and his punishment fixed by the jury at a fine of $100, and imprisonment in the county jail for a term of 30 days. Defendant assigns numerous grounds of error, but for the purpose of disposing of this appeal it will only be necessary to consider one, viz.: Tha...
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The plaintiff in error, hereinafter called the defendant, was jointly informed against *Page 460 with Denton Sewell, charged with assault with a dangerous weapon with intent to do bodily harm, was tried separately, convicted, and sentenced to be imprisoned in the state penitentiary for two years. Motion for new trial was filed, considered, overruled, exceptions saved, and defendant appeals. The t...
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The plaintiff in error, hereinafter referred to as the defendant, was convicted of having *Page 2 possession of intoxicating liquor, and was sentenced to pay a fine of $250, and to be imprisoned in the county jail for 90 days. This is a companion case to Murray v. State,51 Okla. Cr. 45, 299 P. 506. Under the provisions of sections 2619 and 2626, C. O. S. 1921, the defendant, in addition to his pl...
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The plaintiff in error, hereinafter referred to as the defendant, was charged by information *Page 4 in the county court of Oklahoma county, with the possession of a certain quantity of intoxicating liquor, and entered her plea of guilty, and on the 5th day of September, 1930, the court sentenced the defendant to serve 30 days in the county jail and to pay a fine of $50. On the 8th day of Septemb...
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Plaintiff in error, hereinafter called defendant, was convicted in the district court of Oklahoma county of the crime of larceny of an automobile, and, the jury being unable to agree upon his punishment, the same was fixed by the court at imprisonment in the state penitentiary for five years. The evidence of the state was that one Francis was the owner of a red Buick automobile, 1929 model, mot...
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The plaintiff in error, hereinafter called defendant, was convicted in the district court of Tulsa county of murder, and was sentenced to life imprisonment. The record discloses that, at the time charged, defendant, as a result of some quarrel over the use of a garage, shot and killed Charles Morton. Morton at the time was in an automobile attempting to enter the garage, and defendant was on the r...
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Plaintiff in error, hereinafter called defendant, was convicted in the district court of Lincoln county of the crime of perjury, and his punishment fixed by the jury at imprisonment in the state penitentiary for ten years. The evidence of the state was that there was a case pending and on trial in the district court of Lincoln county, wherein the state of Oklahoma was plaintiff, and *Page 29 Gold...
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The compensation statutes of different states are as varied as the amendments of the various legislatures have made possible. However, the principles applicable are similar in some of the statutes and the question here involved has been passed upon by the supreme courts of some of the states. It is held quite generally that under similar statutes regarding commutation of payments, a lump sum settl...
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This is an action to enjoin the issuance and sale of state bonds to the extent of $2,096,500 under authority of Chapter 126, Laws of 1929, and Chapter 186, Laws of 1931. Chapter 126 was passed by the legislature, approved by the governor, and ratified by the people at the general biennial election held on November 4, 1930. Section 1 of the Act authorizes and empowers the legislative assembly to di...
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OPINION OF THE COURT San Juan Coal Coke Company, the petitioner, operates coal mines at La Ventana. Santa Fe, San Juan Northern Railway Company, hereinafter referred to as the San Juan Road, is a common carrier, owning and operating a 31-mile line from Tilden, two miles north of La Ventana, to San Ysidro. Santa Fe Northwestern Railway Company, hereinafter referred to as...
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OPINION OF THE COURT The plaintiff, an attorney at law, seeks to recover in this action against the husband for disbursements made in the course of his employment by the wife in a proceeding for separate maintenance, which disbursements were necessary to an efficient preparation and presentation of her case. In such proceedings the plaintiff prevailed, and separate mainte...
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OPINION OF THE COURT Appellee, plaintiff below, brought suit to quiet title to a tract of land within the boundaries of the Santa Fe Grant southeast of the city of Santa Fe. The appellant, one of the defendants below, filed an answer and cross-complaint alleging ownership and possession of a tract of land which conflicts with the land described in the complaint at the ext...
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I am unable to concur with the majority opinion. As I understand the record the judgment was entered December 20, 1929. On February 6th the defendant moved to set aside the judgment. On March 12th this motion, treated as a motion for new trial, was denied. Thereupon the court took a hand and of its own motion set aside the judgment and ordered a new trial. April 10th the plaintiff appealed from th...
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Certain newspapers published in Latah county submitted bids for the latter's printing. Among these, were the "Genesee News" and the "Idaho Post," the former offering to undertake the work for a compensation appreciably less than that submitted by the "Post." By an order entered January 24, 1931, the board of county *Page 67 commissioners awarded the contract to the "Genesee News." From such order...
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This is an action for damages for personal injuries to surgical patient on account of burn from hot water bottle occurring after the operation. Mrs. A.L. Potter, a graduate trained nurse, owns and operates a hospital in the city of Coeur d'Alene, known as the Home Hospital, which is her sole and separate property. The hospital is small and the nursing is looked after by Mrs. Potter. Appellant, H.J...
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In this action we granted a rehearing for the reason that we failed in the opinion heretofore rendered by us to pass upon the special demurrer interposed to the second amended complaint in this action by the defendant surety company. We are in entire accord with the conclusions reached by us regarding the merits of the general demurrer as set forth in our former opinion, and we express our approva...
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THE COURT. This is a proceeding to review the action of the board of governors of The State Bar recommending that the petitioner be disbarred. The board found the petitioner guilty of misappropriation of funds entrusted to him as trustee and while acting in the dual capacity of attorney and trustee for Mary *Page 239 Cynthia Gesford Lott. The petition is based mainly on the contention that the ev...
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The judgment appealed from must be affirmed and it is so ordered. Our reasons are to be found in the following observations: *368 Prior to 1917 Moulton Irrigated. Lands Company and Gould Land Company, corporations, were the owners of a large area of land in Colusa County, the easterly boundary of which was Butte Creek. In said year these companies entered into an agreement with William G. Hen...
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Following their conviction in the superior court upon charges of the commission of a felony, the defendants Malone and Brown appealed to the District Court of Appeal. The attorney-general moved to dismiss the appeal on the ground that it was not perfected as required by section 7, rule II, Rules for the Supreme Court and District Courts of Appeal, which requires that an appellant "must, within fiv...
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Appeal from a decree in favor of defendant administrator decreeing that certain real property situate in the city of Turlock and described in a certain deed executed by third parties in which the wife of appellant, since deceased, was named as the sole grantee, the purchase *Page 395 price of which was paid by appellant husband, was a gift from said husband to his wife. Said real property when co...
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On March 9, 1927, both respondent Acme Gravel Company and appellant J.A. Steele were creditors of defendant Harry B. Williams, the former in the sum of $1572.60, the latter in the sum of about $2,500. Apparently Williams was a contractor engaged in laying cement sidewalks, to whom respondent had furnished materials for that purpose and expected to supply further materials thereafter. On March 7, 1...
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This action was instituted to recover on three promissory notes, executed by the defendants L. L. McDonald and B. L. McDonald and secured by a mortgage *398 upon certain real property and personal property. The mortgage was executed by the defendants above named and by defendant Mary E. McDonald, in favor of defendant J. W. Seimens. The plaintiff became the owner thereof by assignment through t...
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This is an appeal from a judgment for the defendant in an action to set aside a deed. For many years the plaintiff was the owner of a ranch called "Spring Mountain Ranch", comprising some 688 acres, and situated in Napa and Sonoma Counties, this state. Prior to July, 1927, the property had become run down, the buildings dilapidated and the owner had become financially involved. The Bank of America...
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This is an appeal from a judgment for the defendants in an action to quiet the plaintiff's title to real property in Grass Valley. The court granted a motion for a nonsuit after both sides had introduced evidence and rested. The action covered numerous pieces of property, but was finally narrowed down to a controversy over the title to what is called "Old Block Mining Claim", consisting of about t...
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Petitioner E.S. Green was brought before local administrative committee No. 3 of The State Bar *Page 404 for the county of Los Angeles, to show cause why he should not be disbarred, suspended or reproved for conduct alleged to involve moral turpitude. At the conclusion of its hearings, the local committee made findings upon which it based a recommendation that petitioner be suspended from the pra...
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This is an appeal from a judgment declaring the infant daughter of the appellants to be an abandoned child. [1] There is also a motion to dismiss the appeal on the ground that the transcript of the evidence is incomplete. The appeal was regularly taken, and we have before us a clerk's transcript and what purports to be a reporter's transcript. The motion must, therefore, be denied, and the appeal ...
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This action was instituted to foreclose a mortgage given to secure a promissory note for $2,200, executed in favor of the plaintiff by the defendants. In their answer the defendants did not contest the execution and delivery of the note and mortgage, but set up as an affirmative defense to said action that the money, loaned them and to secure which said note and mortgage were given, was not the m...
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[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 324 Petitions for transfer to this court of this proceeding, after decision by the District Court of Appeal of the Fourth District, were filed by the Occidental Indemnity Company and by the Industrial Accident Commission. These petitions we granted and the wh...
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This is a petition to review a recommendation of the board' of governors of The State Bar that petitioner be suspended from the practice of the law for a period of one year. The proceeding was commenced before local administrative committee No. 6, in Los Angeles County, and resulted in a recommendation of disbarment, which was reduced to suspension by order of the board of governors. Petitioner...
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The motion to dismiss the appeal herein is denied, being without merit for the following reasons: Plaintiff sued to foreclose a materialman’s lien and to have it impressed upon two city lots in Merced, together with the building erected' thereon, praying also for the sale of the property to satisfy its claims. The building was a portable steel service station structure furnished by appellant fo...
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This is an appeal from a judgment in specific performance. In October, 1919, Anna Dalton, the plaintiff, and George W. Gould, since deceased, established a joint bank account in the Hibernia Savings and Loan Society in San Francisco. Thereafter from time to time and until August 24, 1926, deposits were made in that account aggregating some $15,000. It is an admitted fact that all of the money depo...
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Appeal from judgments for defendants in suits to compel the reconveyance of certain real property. The causes of action are identical, are submitted under one set of briefs and will be considered together; the word "appeal" will refer to both appeals. The real basis of the appeal is the contention that the findings do not support the judgment. The substance of these findings will therefore be set ...
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THE COURT. Upon a re-examination of the record on this appeal after decision by the District Court of Appeal, First District, Division Two, we are satisfied with the statement of the facts, reasoning and conclusions of that court and hereby adopt the opinion there rendered, prepared by Mr. Justice Sturtevant, as the opinion of this court. It is as follows: "Action for personal injuries. The verdic...
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Appellant, Oscar Karlslyst, brought this action to obtain equitable relief from a provision in an interlocutory decree of divorce entered in an action brought against him by respondent herein, who is now Elsie Frazier, ordering him to contribute $25 a month to the support of Marian Elaine Karlslyst, found by the court to be the child of the parties, until further order of court. As grounds for rel...
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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 192 The facts in this case are correctly stated by the District Court of Appeal (295 P. 98) and are as follows: "This is an action brought by Clyde E. Cate, as administrator of the estate of Genevieve Brennan, deceased, against the Fresno Traction Company and...
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THE COURT. This is an appeal from a judgment rendered for the defendant for costs. The plaintiffs' complaint alleged the execution of a lease dated December 26, 1924, whereby the plaintiffs let to the defendant a 331-acre ranch and an additional 160-acre tract for a period of three years at a monthly rental of $100 per month payable $400 on the first of June of each year and $800 on the first of N...
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This action was brought for an accounting after dissolution of a partnership consisting of the plaintiff and defendant. The action came on for trial. Bach party introduced his evidence and rested. Thereupon the court, by order entered upon its minutes, appointed Louis M. Simonsen referee to expert the books of the copartnership and make a report to the court in accordance with said accounting. It...
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The three actions above named were tried together, and involve only one question, to wit, the ownership of a tract of land lying between the meander line and the waters of Clear Lake. The respective plaintiffs had judgment and the defendant appeals. The actions were brought to quiet the title to lots 1, 2, 3, 4 and 5 of section 29, township 15 north, range 7 west, M.D.B. M., abutting on Clear Lak...
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This is an appeal from a judgment in favor of the plaintiff in an action to enforce a stockholder's liability. Andrew Johnson died intestate on July 22, 1921, in the county of Sacramento. Carl Johnson was appointed administrator of his estate, consisting of separate and community property. A final decree distributing the estate to the heirs at law and the assigns of certain of them was filed on Ap...
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[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 454 Plaintiff appeals from a judgment for defendants in an action brought by him to quiet his title to four parcels of mining property and a mill site situate in the county of Calaveras. Defendants assert that plaintiff's title has been divested by proceeding...
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THE COURT. Plaintiff brought this action to recover damages from the defendant for an alleged libel. A demurrer to the first amended complaint was sustained without leave to amend. Judgment for costs was thereupon entered for the defendant, from which judgment this appeal was taken. It is alleged in the complaint that the plaintiff was, and is, what is generally known and termed a "publicity agent...
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Action for specific performance of written contract with prayer for damages as alternative relief. A trial was had; findings and judgment were made in favor of defendants; plaintiff appealed. The several individual defendants constituted the board of education of the city of Modesto as of July 16, 1926. This board is made by law the governing body of a series of school districts of various kinds, ...
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Defendant Martin was the payee of a promissory note for $3,500 made by his co-defendants, payment of which was thereafter guaranteed in writing by Martin and the same was deposited with the Peoples National Bank of Los Angeles as collateral security for a debt owing by him to the bank. Plaintiff brought suit on *79 the note and guaranty. Defendant Martin alone was served and the action was appa...
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On November 2, 1928, Mary B. Ehle made an olographic will as follows: "November 2, 1928 "My Will "I leave to Phoebe Boatright everything I have at my death and I appoint her Executrix without bonds. "MARY B. EHLE "ARIETTA ESTELLE COFFIN "ORA LEE BOATRIGHT" *Page 658 Contestants, who are nieces and nephews and the heirs at law of testatrix, filed a contest against the probate of said will, allegin...
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It appears that the defendant is the owner of a tank steamship which at the time in question was berthed in the port of Los Angeles, which harbor was under the direct control of the harbor department of the plaintiff, and that the action of the defendant in shifting the position of said ship from the berth then occupied by it to another berth, which at that time was vacant and open to occupancy, r...
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This is an appeal from an order or judgment by which a portion of the estate of the decedent was distributed to each of certain corporations either specifically mentioned or sufficiently described as a legatee by the provisions of the last will of the deceased. That part of the will which is questioned by appellant was as follows: "After funeral expenses are paid whatsoever property remains, is to...
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This action was brought by respondent to recover damages for personal injuries alleged to have been sustained by reason of a collision between an automobile driven by himself and a street-car alleged to have been negligently operated by the appellant on Grand Avenue at its intersection with Twelfth Street in the city of Los Angeles. The answer of appellant denied the negligence charged and specifi...
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Upon a trial by the court sitting without a jury plaintiff recovered judgment in the sum of $2,509.94, with interest, for goods alleged to have been sold and delivered to defendant by plaintiff's assignor. Defendant appeals from the judgment. [1] Appellant contends that the findings are not supported by the evidence. In our opinion this contention must be sustained, but we do not deem it necessary...
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This appeal is prosecuted under what is known as the alternative method, provided for by section 953a of the Code of Civil Procedure and by several other sections which follow it. Section 953c provides, in part: "In filing briefs in said appeal the parties must, however, print in their briefs, or in a supplement appended thereto, *Page 140 such portions of the record as they desire to call to 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 116 This action was instituted to recover damages from the City of Los Angeles and the Department of Water and Power of said city for personal injuries. The United States Fidelity and Guaranty Company, compensation insurance carrier for Francisco and Ellingto...
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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 46 The above-entitled action, Luvada R. Lewis v. SouthernCalifornia Edison Company and Harry Plotz, was an action brought by appellants for the wrongful death of Henry E. Lewis, husband of Luvada R. Lewis and father of Mary Lewis. The action entitled"City of ...
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The petitioner filed in the superior court a petition for a writ of mandamus to compel the City Council of the City of Oceanside to call a recall election. The petitioner recites that he, and other qualified electors, prepared and circulated a petition for the recall of H.D. Brodie and E.A. Walsh as Trustees and Members of the City Council of the city named. It is alleged that the petition was sig...
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This is an application for a writ of habeas corpus based principally upon the ground that the trial court was without jurisdiction to punish petitioner for contempt. The commitment was issued after the court had made two orders, one of which found the petitioner guilty of contempt of court for failure to pay alimony, and sentenced the petitioner to two days in the county jail, which order was afte...
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Plaintiffs instituted the present action alleging in their complaint that they owned and held legal title to a large number of parcels of real property specifically described and that defendants claimed some interest in said property adverse to plaintiffs' ownership, which claims of interest were alleged to be without legal right, constituting clouds upon the title of plaintiffs. Plaintiffs prayed...
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The defendant was charged with the crimes of incest and rape, in two counts of an information filed by the district attorney of Imperial County. The first count of the information charges the defendant with an act of intercourse with the prosecutrix, committed on January 15, 1931, alleging that the prosecutrix was "a female child of the age of 16 years, she . . . being then and there the daughter ...
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The defendants appealed from a judgment rendered by the Superior Court of Los Angeles County in favor of the plaintiff for the possession of personal property. [1] Said judgment is based upon allegations of the complaint and findings of fact reciting merely that the plaintiff was the mortgagee and entitled to the immediate possession of the property described, and that the defendants were at all t...
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This is an action brought by appellant against respondent under the provisions of section 29, subdivision b, of the Workmen's Compensation Act (Stats. 1925, p. 494), which, in brief, provides that in the event an employer fails to insure, the employee, or in the case of death, his dependents, may bring an action for damages against the employer as though the act did not apply, with the provision t...
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This is an action for damages arising out of the sale of 8,500 shares of the capital stock of Coast Amusements, Inc., under circumstances more particularly described in this and in the companion case of Coast Amusements, Inc., v. F.L. Stineman (Civil No. 860), post, p. 746 [2 P.2d 447]), this day decided. Respondent and appellants entered into a written agreement to operate a place of amusement at...
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This is an action to recover the par value of 8,500 shares of respondent's stock alleged to have been subscribed for by appellants and for which they failed and refused to reimburse the company. The court found that respondent was a corporation duly organized and existing under the laws of the state of California; that on or about July 7, 1925, appellants, together with W.E. Knotts, F.W. Becker an...
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The defendant was charged with the crime of making, drawing, uttering and delivering a check upon a bank without sufficient funds to meet the same, the information containing three counts. In the first count it is charged that the defendant on or about the fifteenth day of May, 1930, in the county of Fresno, committed a felony in that he, with intent to defraud Arthur R. Lindburg, Inc., a corporat...
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The plaintiffs commenced separate actions against the defendant to recover damages caused by the collision of two automobiles. The defendant answered and thereafter both actions were consolidated for the purposes of the trial. In each action judgment went for the defendant and the plaintiffs have appealed. At about 3 o’clock in the morning, on January 1, 1930, the defendant was driving a Ford a...
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The defendant insurance company issued to one Nettie E. Ratchford a policy of fire insurance covering certain property in Taft, California. The plaintiffs herein held a mortgage on the property, and a mortgage clause in their favor was attached to the policy. The insured property was destroyed by fire on February 7, 1928, while the policy was in force. Subsequently, Nettie E. Ratchford conveyed th...
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The complaint in this action purports to state two causes of action, each designed to recover on one of two policies of life insurance. We shall treat the controversy, in our discussion of it, as if there were but one cause of action, as the questions presented by the appeal are identical as to each of the two alleged causes. Among other things it is alleged in the pleading of plaintiffs that Mary...
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Plaintiff sued on a common count for money had and received in the sum of $1,015.20. The cause was tried without a jury. Judgment went for plaintiff against defendant Busby for $145, and for the other defendant for its costs. Plaintiff appeals upon typewritten transcripts. On April 15, 1929, plaintiff sold to defendant Busby his leasehold interest together with the furnishings and equipment of cer...
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Defendant was convicted upon a charge of violating the provisions of section 288 of the Penal Code, denouncing the commission of lewd and lascivious acts upon the persons of children under the age of fourteen. Defendant’s victim was a girl nearly twelve years of age. He himself was forty-nine. The cause was tried without a jury. Defendant appeals from the judgment of conviction and from an order ...
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The appellant Harold Vincent was convicted of robbery in the second degree and sentenced to serve the term prescribed by law in the state penitentiary at San Quentin. Judgment was pronounced on April 6, 1931, and on the same day defendant gave oral notice of appeal from the "judgment of conviction". On April 8, 1931, written notice of appeal was filed, stating that the defendant appealed from the ...
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This action is predicated upon a stipulated statement of facts, from which the following pertinent to the issues involved in this action are taken: Plaintiff, an investment company, was assessed in 1924, for city and county taxes in the city of Los Angeles and the county of Los Angeles in the sum of $463,573.91 as solvent credits. Against this amount a deduction in the sum of $142,175.15 on accoun...
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Plaintiff Mrs. Dwyer was injured by collision with a street-car of respondent under circumstances which may be described in general terms as follows: At the corner of Seventh and Mateo Streets, in the city of Los Angeles, the route of travel for the street-cars of respondent makes a turn whereby north-bound cars on Mateo Street, when they reach said intersection, turn to the left and then travel w...
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The above actions grew out of an automobile accident which occurred in San Mateo County. Inasmuch as both cases involved the same accident and the witnesses were the same in each, there was an order of consolidation in the court below. The cases were tried together and the appeals are presented through one bill of exceptions, under stipulation. The accident referred to was a collision between the ...
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This is an appeal by the defendant H. Hamaguchi from a judgment entered against him upon a *Page 602 verdict of a jury in the sum of $3,750 in a case for personal injuries. Plaintiff Birdene Wieck, a minor, and W.A. Wieck, her father brought this action for damages against defendants, William Hockett and H. Hamaguchi, charging that Birdene Wieck was severely and permanently injured by reason of t...
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Plaintiff sustained injuries by reason of a collision between a motorcycle driven by him and an automobile operated by defendant. The case was tried by the court sitting without a jury and plaintiff had judgment. Defendant appeals. Plaintiff was a traffic officer and deputy sheriff; was on duty and chasing a hit-and-run driver whose car had struck another automobile and injured the occupants. The ...
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This is an action brought by appellant for damages for personal injuries. He was struck by an automobile being driven by respondent at the intersection of Fifth and Robinson Streets in the city of San Diego, at about 7:30 o’clock on the evening of Friday, May 13, 1927. Fifth Street runs north and south. It is fifty feet in width between curb lines and has parallel street-car tracks on each side...
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On the twenty-fifth day of June, 1929, deceased executed an olographic will, naming respondents as executors thereof. Her death occurred on November 3, 1929. Thereafter her will was duly probated. On August 20, 1930, respondents filed their first and final account. On the eighth day of September, 1930, the court made an order settling the said account and decreed distribution of the estate. From t...
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This is an appeal from an order of the superior court settling the second annual account and report of D.W. Carmichael, as executor of the last will of Sarah Mildred Jones, deceased. The appeal is by the Independence Indemnity Company, the surety upon the official bond of Carmichael, as executor of the last will of decedent. The facts are briefly these: Sarah Mildred Jones died testate on February...
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The plaintiff was injured by being struck by an automobile which was at the time being driven by one of the defendants but which was owned by the other defendant. The defendants answered and a trial was had before the trial court sitting with a jury. The jury returned a verdict in favor of the plaintiff and fixed his damages in the sum of $1,000. The plaintiff made a motion for a new trial and the...
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Plaintiff commenced an action against the defendants on a promissory note, claiming a balance due thereon of $606 together with interest at twelve per cent per annum from March 16, 1926, attorneys’ fees and costs. On June 18, 1928, a default judgment against the defendants was entered in the sum of $839, together with costs. This judgment became final without any appeal therefrom. Thereafter, upo...
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This is an action to recover damages for personal injuries sustained by plaintiff, such injuries having been caused, so it is alleged, by the negligence of the defendant McJimsey in the operation of a certain automobile bus which was the property of defendant D.B. Maurice, doing business under the fictitious firm name of West Coast Rapid Transit Co. During the trial of the action it was stipulated...
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In this action for conversion of certain capital stock, judgment was entered in favor of defendant, from which judgment plaintiff appeals. On the trial no evidence was offered by defendant. There is no dispute regarding the facts hereinafter set forth, which facts were proved either by the uncontradicted testimony introduced by plaintiff or by stipulation. Plaintiff borrowed the sum of $500 from d...
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Defendant Lane appeals from a judgment rendered against him in favor of plaintiff in an action for personal injuries. [1] The sole question presented by appellant is whether the amount of damages awarded to plaintiff is excessive; and the reason urged by appellant for a reversal of the judgment is that the decision of the court and the judgment based thereon are not sustained by the evidence. As s...
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The plaintiff filed his second amended complaint in the court below alleging two causes of action, both in substance that in the month of October, 1929, one Edwin S. Pascoe was the owner of certain real property in Imperial County and entitled to the rents *Page 43 and profits thereof; that during the month of November, 1929, the defendant was appointed receiver in a certain mortgage foreclosure ...
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Plaintiff recovered judgment in conversion in the lower court. This action was originally commenced against James C. Byers, who was sheriff of San Diego County and who levied an attachment on the stock of goods in an action against C.X. Thompson. Plaintiff, who is the wife of C.X. Thompson, filed a third party claim. The attaching creditor filed with the sheriff an indemnifying bond and obtained j...
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Respondents brought this action to recover from defendant $1323.50 upon written guaranty of appellant to pay same. Judgment went for respondents, from which appellant has appealed. It appears from the evidence that respondents were copartners doing business under the name of the Star Plumbing Hardware Company, and on July 7, 1926, they entered into a contract with L.C. Adams to do the plumbing wo...
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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 172 This is an action to recover a secret profit realized and retained by the defendant from a sale of real property negotiated by himself and the plaintiff. From a judgment in favor of the plaintiff the defendant takes this appeal. It is the theory of the pl...
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It appears that plaintiffs, together with Stuart M. Salisbury and Lois C. Salisbury, were the owners of certain real property which, for the purpose of drilling and operating thereon for the production of petroleum, etc., they leased to the A.F. Gilmore Company, a corporation, and that thereafter, following several preceding assignments thereof, the said lease was assigned to defendants E.C. Joann...
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This is an action for personal injuries. The defendant in his answer pleaded contributory negligence. A jury rendered a verdict in the sum of $2,000 in favor of the plaintiff. The trial court granted a motion for a new trial on the ground of the insufficiency of evidence to sustain the verdict. Plaintiff appealed from the order granting the motion for a new trial. At about 11 o'clock P.M. on the n...
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The defendant appeals from an adverse judgment in an action to quiet title to a lot situate in the city of Santa Monica. The appeal is taken on the judgment-roll alone, the main ground urged for reversal being that the findings do not support the judgment, in that they show that' plaintiff acquired the property with knowledge of the fact that defendant held an unrecorded deed thereto. The entire ...
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This action was brought by plaintiff against defendant to recover damages for an alleged breach of contract. The cause was tried by the court, sitting without a jury, and from an adverse judgment plaintiff prosecutes this appeal. The record is voluminous and comes to us through a bill of exceptions. The contentions advanced cover almost the entire law of contracts and appellant urges that the most...
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THE COURT. The above action was brought upon a promissory note executed to plaintiff by defendants T.M. Rallis and L. Rallis, his wife. The instrument, which was for $1303, was dated August 2, 1926, and payable with interest on August 1, 1927. Some time before its date defendant T.M. Rallis became indebted for money loaned and services rendered by the plaintiff and others. The latter assigned thei...
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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 308 The above-entitled cases were consolidated for the purpose of trial and pursuant to stipulation and order were consolidated for the purpose of appeal. In the trial court judgments were entered upon the verdicts in favor of plaintiffs Sarah J. Maggart and ...
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Defendants and appellants Pennington owned and operated an apartment house in San Francisco. Plaintiff and respondent Aileen Fisher paid one month's rent in advance for a furnished apartment. On the morning of the thirteenth day of March, 1929, plaintiff was occupying a bed in the furnished apartment when the door to which the bed was attached fell inward over the top of the bed, causing injuries ...
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In an action for damages against a hospital, two nurses and a surgeon, in Ventura County, the jury were directed to return a verdict in favor of the defendants, and the plaintiff appealed from the judgment. From such argument in the briefs as is based upon evidence appearing in the record, as distinguished from statements of counsel, we assume that the contention as to its sufficiency to warrant s...
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This is an appeal from an order deny-in the motion of the Zurich General Accident Liability Insurance Company to set aside a satisfaction of judgment and consent thereto, and for a lien upon that judgment in favor of the insurance company. The plaintiff Lidberg was injured while in the course of his employment as an interior decorator. In due course the Industrial Accident Commission awarded him ...
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In this action to recover for personal injuries judgment upon the verdict was entered in favor of plaintiff from which judgment defendant appeals. Appellant urges several grounds for a reversal, the main contentions being: First, that there is no evidence of negligence on the part of appellant; and second, that even if it can be said that there is testimony showing negligence on appellant's part, ...
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Plaintiff brought this action to recover certain sums of money alleged to be due on several assigned claims against the defendant corporation, one of which was based on a promissory note for $5,000. The trial took place before the court sitting without a jury, and judgment was given in favor of plaintiff on all counts but one, which related to the promissory note. With reference thereto the court ...
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Plaintiffs employed Mr. Gloria and Mr. Hennessy as their attorneys to prosecute an action in tort for injuries arising from a motor vehicle accident. After the suit was filed plaintiffs moved for leave to substitute other counsel. Their motion was granted and Mr. Gloria and Mr. Hennessy appeal upon a bill of exceptions. [1] The contract of employment was in writing. The parties agreed to pay their...
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This is an appeal by defendant Soffel from a judgment awarded on two trade acceptances signed by said defendant and held by plaintiff. *Page 354 [1] The points raised by appellant would require a weighing of the evidence by this court. It cannot be said that there was not sufficient evidence to support the findings or that the findings were not sufficient to support the judgment. This is an acti...
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Petitioner and decedent intermarried in Chicago, Illinois, on the eighth day of February, 1912. He had known decedent and lived in her family a greater portion of the time for more than thirty-three years prior to the marriage. They took up their residence in California *Page 527 on November 1, 1923, and continued to reside in this state until the death of the decedent, which occurred on August 6...
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This is an appeal by plaintiffs from a judgment in favor of the defendant, rendered by the court sitting without a jury, in a trial held after plaintiffs' demand for a jury trial had been denied. This appeal presents just one question, viz., did the court err in denying plaintiffs' demand for a jury trial? On March 21, 1929, the attorney for the plaintiffs wrote the clerk of San Diego County askin...
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These appeals include two actions which were consolidated for trial. In action 42,098 the defendant was accused of burglary committed on September 12, 1930, at the house of one Katayama in the city of Arcadia. In said action it was further charged that before the commission of said offense the defendant on May 11, 1925, was convicted of burglary in the county of Los Angeles; and in April, 1911, wa...
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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 128 In this action respondent seeks to recover damages against appellant for personal injuries sustained by him while employed by appellant in interstate commerce as a switch-tender, which position he had occupied in the Los Angeles yards for approximately th...
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While walking across a street in San Francisco, plaintiff was struck and injured by a Ford delivery truck owned by the defendant Peoples Laundry Company and driven by its employee and co-defendant Tashiro; and subsequently he brought this action for damages against the owner and the driver, claiming that the accident was caused by the driver's negligence. Upon trial a jury rendered *Page 565 a ve...
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The plaintiff sued to recover broker's commissions alleged to be due and owing to him from the defendant's testator. The defendant asserts that there is no testimony to support the finding that the plaintiff performed the contract under which he claims relief. She also asserts that there was no agreement employing the plaintiff. And she further asserts that the purported agreement *Page 228 was o...
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Upon objection to the first and final account of the appellant as administrator of the estate of Nellie A. Montague, deceased, and a petition to determine heirship and distributive rights, filed by the sisters and a brother of said deceased, a decree was made and entered apportioning the estate to appellant and to the said petitioners. The administrator appealed from that portion of the decree whi...
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Plaintiff sued to foreclose a mechanic’s lien. The cause was tried before the court and, at the close of plaintiff’s case, the trial court granted a nonsuit, as to certain defendants. The plaintiff appeals on typewritten transcripts. Plaintiff is the assignee of Union Tank and Pipe Company, a corporation. This company sold to defendant Bailes a quantity of oil-well casing which Bailes used in s...
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Pursuant to count two of an information duly filed, defendant was convicted of the crime of violation of chapter 339, Laws of 1923 (Act 1970 of Deering’s Gen. Laws 1923), “committed as follows: That the said John Forrester, on or about the twenty-ninth day of January, 1931, at and in the county of Los Angeles, state of California, did wilfully, unlawfully and feloniously have in his possession an...
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Respondent, by a written agreement, employed appellant to design a sewerage and sewerage disposal works, to prepare all drawings and the contract for its construction and to supervise and inspect such construction for a percentage of its cost, payable in progress installments, subject to final determination thirty-five days after completion. Although providing that time was of its essence, the agr...
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This is a petition for a writ of habeas corpus. It is contended the order of a magistrate holding the petitioner for trial in the superior court upon a charge of attempting to extort money contrary to the provisions of section524 of the Penal Code is void for failure to have established at the preliminary examination the corpus delicti. It is asserted the record fails to show probable cause to bel...
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This is an action for damages for personal injuries alleged to have been sustained by the plaintiff Herman Clark under the following circumstances. On August 2, 1929, the plaintiff was driving a 1927 Dodge coupe automobile in a westerly direction on Addison Avenue in the city of Palo Alto. At the same time and place the defendant was driving a 1930 Nash sedan automobile in a southerly direction on...
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Appellant was convicted upon ten counts of an indictment, each charging a separate crime of grand theft. His motion for a new trial was granted as to the first nine counts, but was denied as to the last. This tenth count accused appellant of the crime of grand theft by charging that on June 11, 1930, he unlawfully took the sum of $260, the property of the complaining witness. From the order denyin...
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Respondent instituted this action to recover the sum of $2,000 for the use of pasturage on property which he owned in Imperial County. The case was tried before a jury. The court gave a peremptory instruction to return a verdict in favor of respondent in the sum of *Page 291 $928.20, upon which verdict the judgment was entered. From this judgment an appeal was taken. At the time of the trial the ...
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Plaintiff sued for $3,500, the balance due on a promissory note. Defendant admitted the execution of the note and pleaded that the transaction was usurious. The cause was tried without a jury. Plaintiff had judgment as prayed and defendant appeals upon a bill of exceptions. On September 21, 1927, defendant wired plaintiff’s assignor : “We will gladly pay you five thousand shares (stock in New E...
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This is an appeal by defendant from an adverse judgment in an action to recover the sum of $2,000 which plaintiff claims was loaned by him to the defendant at the *Page 303 latter's request to enable defendant to purchase certain shares of stock in a mining corporation which the parties were organizing. The defendant denied that the money advanced by plaintiff constituted a loan, but the trial co...
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From the record presented on this appeal it appears that for the sum of $4,250 defendant purchased from plaintiff's assignor a two-thirds interest in "one ambulance, all the furnishings and equipment located down stairs at 1011 North Wilmington street, Compton, California, and all outstanding contracts with any person, corporation, or municipality, the subject of which are the performance of dutie...
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The trial court, sitting without a jury, awarded plaintiff a judgment against the defendants for the sum of $1853.59, in an action for damages based upon the alleged negligence of defendants in operating a motor-truck, and defendants have appealed, contending as sole ground for reversal that the evidence is insufficient to support the trial court's finding on the issue of defendants' negligence. I...
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Defendants' demurrers to plaintiff's second amended complaint were sustained with leave to amend. Plaintiff failed to amend after notice and judgment was *Page 369 entered in favor of defendants. Plaintiff appeals upon the judgment-roll. [1] The complaint in question is entitled "Action for Damages" and covers twenty pages of the transcript. It appears to be drawn upon the theory that a conspirac...
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Plaintiff brought this action seeking to recover damages against defendant Carmichael's U-Drive Autos, Inc., for personal injuries inflicted upon plaintiff when struck by an automobile belonging to defendant. The trial court directed a verdict in favor of defendant and from the judgment entered upon the directed verdict plaintiff appeals. The accident occurred on the evening of August 7, 1928. The...
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This is an action in which the plaintiff, the assignee of Mrs. N.E. McCann, alleges that on or about the 2d of March, 1926, the defendant entered into a contract with said Mrs. McCann by the terms of which he agreed to give to her the exclusive agency for selling certain property and to pay her the regular commission allowed to relators on sales and, in addition thereto, to pay two and a half per ...
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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 341 Plaintiff sued for personal injuries resulting from a collision between a motor vehicle which he was operating and a street-car operated by defendant. The cause was tried with a jury. A verdict was returned for defendant and plaintiff appeals from the jud...
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Plaintiff in error, hereinafter called defendant, was convicted in the county court of Oklahoma county of the crime of unlawful possession of intoxicating liquor, and his punishment fixed by the jury at a fine of $500 and imprisonment in the county jail for a period of six months. The evidence of the state was that the sheriff's office was called to send officers to the eleven hundred block on eas...
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The plaintiff in error, hereinafter called defendant, was convicted in the district court of Caddo county of larceny and his punishment fixed at four years and six months in the penitentiary. The defendant was jointly charged with one Lester Pierce of the larceny of two sets of harness of the value of $30. The evidence sufficiently sustains the judgment. Defendant did not take the stand and off...
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Plaintiff in error, hereinafter called defendant, was convicted in the district court of Muskogee county of the crime of obtaining money by false pretenses, and his punishment fixed by the court at imprisonment in the state penitentiary for seven years. The evidence of the state was that Margaret Hilton, the prosecuting witness, had bought four lots in Muskogee county from the defendant, which he ...
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The plaintiff in error, hereinafter referred to as the defendant, was convicted of having possession of intoxicating liquor, and sentenced to pay a fine of $50 and be imprisoned in the county jail for 30 days; and appeals. The testimony on behalf of the state tends to show that the sheriff and his deputies went to the home of the defendant and found no one at home; they searched the premises and i...
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The plaintiff in error, hereinafter referred to as the defendant, was by information charged with the crime of murder, was convicted of manslaughter in the first degree, and was sentenced to serve *93 a term of thirty years in the state penitentiary at Mc-Alester. From the judgment and sentence, defendant has appealed. The appeal was filed in this court on March 26, 1930. No brief has been fi...
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Plaintiff in error, hereinafter called defendant, was convicted in the district court of Beaver county of the crime of grand larceny, and his punishment *Page 18 fixed by the court at imprisonment in the state reformatory at Granite for a period of two years and six months. The evidence of the state was that J. E. Ingland was the owner of one grease gun for a caterpillar tractor and one eight-gal...
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Plaintiff in error, hereinafter called defendant, was convicted in the district court of Beaver county of the crime of grand larceny, and his punishment fixed by the jury at imprisonment in the state reformatory at Granite, Okla., for a period of one year and six months. *Page 21 The defendant was charged with having, on or about January 17, 1929, stolen from W. J. Leaming, one Peter Wright anvil...
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This is an appeal by the state. Defendants were charged in the county court of Nowata county with the unlawful taking of fish. A demurrer to the information was by the court sustained. The state appeals. The prosecution is based upon section 1, art. 5, c. 24, Session Laws of 1931, which section is an amendment and substitution for section 23, c. 35, Session Laws 1927, and reads: "Sec. 1. That sect...
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The plaintiff in error, hereinafter called the defendant, was convicted of having possession of mash fit for distillation, and sentenced to pay a fine of $250, and be imprisoned in the county jail for six months, and has appealed. The testimony on behalf of the state in substance is that on March 9, 1929, the sheriff and his deputies went on a tract of land with a search warrant, and searched the ...
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The plaintiff in error, hereinafter called defendant, was convicted in the district court of Muskogee county of larceny by fraud, and was sentenced to serve a term of four years in the penitentiary. At the time charged defendant was manager of a gin belonging to the Muskogee Gin Cotton Company. The evidence for the state discloses that he fraudulently issued a check on the gin company signed by h...
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The plaintiff in error, hereinafter called the defendant, was jointly charged by information with Bill Brown, was tried and convicted, and his punishment fixed at a fine of $50 and 30 days in the county jail, and has appealed. The testimony on behalf of the state tends to show that Cecil Cozby, a deputy sheriff of Carter county, was in Murray county, looking for Bill Brown; that the officers st...
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Plaintiff in error, hereinafter called defendant, was convicted in the district court of Lincoln county of the crime of perjury, and his punishment fixed by the jury at imprisonment in the state penitentiary for ten years. Defendant was charged with the crime of perjury committed in the trial of Golden McCollum, charged with robbery with firearms of the First National Bank of Prague, Okla. The evi...
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Plaintiff in error, hereinafter called defendant, was convicted in the county court of Custer county of the unlawful transportation of intoxicating liquor, and his punishment fixed by the court at a fine of $100 and imprisonment in the county jail for thirty days. *94 The evidence of the state was that J. W. Cooke, a deputy sheriff aud policeman in the town of Clinton, observed the defendant ...
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Plaintiff in error, hereinafter called defendant, was convicted in the district court of Comanche county of the crime of perjury, and his punishment fixed by the jury at imprisonment in the state penitentiary for a period of five years. The evidence of the state was that the defendant was charged in the county court of Comanche county with the crime of transportation of intoxicating liquor; that s...
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The plaintiff in error, hereinafter called defendant, was convicted in the county court of Noble county of having the unlawful possession of intoxicating liquor, and was sentenced to pay a fine of flOO and to serve 60 days in the county jail. At the time charged, certain officers with a search warrant went to the residence of defendant, which was also a rooming house, made a search, and found f...
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Plaintiff in error, hereinafter called defendant, was convicted in the county court of Custer county of the crime of transportation of intoxicating liquor, and his punishment fixed by the court at a fine of $250 and imprisonment in the county jail for a period of 60 days. Defendant contends, first, that the court erred in overruling his motion to dismiss the case, for the reason that he had not be...
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The plaintiff in error, hereinafter called defendant, was convicted in the district court of Oklahoma county of manslaughter in the first degree and his punishment fixed at 25 years in the penitentiary. The case was tried and judgment rendered June 21. The appeal was lodged in this court December 24. The record for appeal is styled "case-made" and was settled and signed as such, but it is in fact ...
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From a judgment in favor of plaintiff providing for foreclosure and sale of 80 acres of land in Millard county, Utah, *Page 243 and 80 shares of stock in Delta Canal Company, A.W. Steele, one of the defendants, appeals from that part of the judgment "wherein 40 shares of stock in Delta Canal Company evidenced by certificate 1718 were ordered sold in satisfaction of plaintiff's mortgage and the in...
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In this action the appellant and the respondent each claim that she received a plurality of votes cast for the office of county recorder of Salt Lake county, Utah, at the general election held November 4, 1930. The official ballots used at that election in Salt Lake county, Utah, contained four tickets, the Republican, Democratic, Socialist, and Liberty. The name of "Mrs. Helen F. Reiser" appeared...
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The plaintiff, Mrs. Hanley, commenced this action in the superior court for Spokane county, seeking recovery upon a death indemnity rider attached to an accident and sickness indemnity policy of insurance issued to her deceased husband, Daniel C. Hanley, by the defendant insurance company. The cause proceeded to trial in that court, sitting with a jury, and resulted in a verdict awarding to Mrs. H...
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The plaintiff, Celinda Fox, seeks a judgment canceling a written contract entered into between her and the defendants, Archie Fox and Mildred J. Fox, his wife; and also canceling a deed executed by her in pursuance of the terms of the contract, whereby she conveyed her thirty-acre farm in Whatcom county to the defendants. The plaintiff’s claim for relief is rested upon alleged fraud on the part...
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MAIN, J., dissents. Appellant sued to recover damages for personal injuries incurred in an automobile collision, the trial of which was before the court and a jury. The jury returned a verdict in favor of appellant for damages in the sum of $1,195, whereupon respondent moved for a judgment n.o.v., and in the alternative for a new trial. Upon a hearing of these motions, the trial court granted judg...
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This action was brought by the owners and holders of bonds issued in payment of the construction costs of diking improvement district No. 5 of Cowlitz county, Washington, to compel an additional or supplemental assessment and levy against the lands within the district to meet the requirements of the fund for the redemption of such bonds. Additional assessments to a limited extent were ordered by t...
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The plaintiff, J.J. Theodore, by his original complaint in this action, commenced in the superior court for Yakima county on January 2, 1930, sought recovery from the defendant Washington National *Page 244 Investment Company of eighteen bonds issued by the Northwestern Refrigerating Company, each evidencing a principal indebtedness of that company in the sum of fifty dollars; and also, in the al...
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Relators made application to the trial court for a writ of mandate, to be directed to the respondent as county assessor of King county, requiring him to list for purposes of taxation as of March 1, 1931, all moneys in bank, mortgages, notes, money, certificates of deposit, tax certificates, judgments, state, county, municipal and school district bonds and warrants, and all other property, both tan...
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Respondent sued appellants individually, alleging that they were copartners engaged in the business of selling blue foxes, with their principal place of business in Seattle, to recover eight hundred dollars and interest upon a contract for the sale and delivery to him of four pairs of blue foxes. The complaint set up a contract in writing, dated April 17, 1925, which recites: "Fox Farmers is a cor...
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Respondent sued and recovered judgment for damages, and this appeal results. The complaint of respondent, in substance, alleges: That respondent, a man sixty-two years of age, was employed by appellant during the period from July 27, 1927, to March 5, 1929, in a veneer mill and work shop operated by appellant, where machinery is used and manual labor is exercised for the purpose of gain within an ...
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Two appeals are here for determination, which involve the same questions of jurisdiction, and are treated as one appeal. *Page 9 On May 20, 1930, the lower court, upon an ex parte application of respondent, without notice, upon the ground that an emergency existed, appointed a temporary receiver for appellant. The complaint on which that order was made, supported by affidavits, alleged that the f...
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Plaintiff brought this action to recover for personal injuries and damages to his automobile, resulting from a collision with the automobile of the defendants, who, by cross-complaint, prayed recovery for personal injuries and damages to their automobile. The cause was tried to the court, which found that the defendants' negligence was the proximate cause of the *Page 178 accident. From judgment ...
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This action was brought to recover damages for personal injuries sustained by the plaintiff Myrtle C. Viles. The cause was tried to the court and jury, and resulted in a verdict in favor of the plaintiffs *Page 191 in the sum of $2,500. The court, however, entered judgment for the defendant notwithstanding the verdict, on the theory that Mrs. Viles was contributorily negligent as a matter of law,...
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TOLMAN, C.J., dissents. The respondents brought this action to recover damages for personal injuries sustained by the respondent Mollie K. Cole in a collision between *Page 163 an automobile driven by the respondent W.B. Cole and an automobile driven by the appellant, Schaub. The cause was tried to the court with a jury, and a verdict was returned in favor of the respondents in the sum of $7,500....
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MAIN, BEALS, and MILLARD, JJ., dissent. The plaintiff, Field, seeks recovery of damages for injuries to his person and to his automobile, claimed as the result of the negligent driving of a stage of the defendant transportation company. The insurance association was made a defendant because of its having issued and filed with the department of public works, as required by law, its insurance policy...
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Appellant, as plaintiff, began this action in the court below, seeking to enjoin the collection of the tax assessed against certain real property in Thurston county. It is not claimed that the tax is void or that the property taxed is exempt from taxation, but the basis of the action is the alleged gross over-valuation of the property for taxation purposes, resulting in a greatly excessive tax. It...
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We shall refer to Nick Beglinger as the "plaintiff," to the United Pacific Casualty Insurance Company as the "Insurance Company," to the Shield Transportation Company as the "Stage Company," and to the Union Transfer Company as the "Truck Company." On August 9, 1929, the plaintiff became a passenger for hire on a bus or stage operated by the Stage Company, intending to travel from Seattle to Aubur...
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On and prior to May 20, 1926, the Woodland Lumber Company was a corporation organized under the laws of the state of Washington, and was doing business therein. The corporation desired to borrow money. To give it a credit with the respondent, Vancouver National Bank, the appellants McCredie, the appellant Harvey, and the appellant Erickson, executed and delivered to the respondent an instrument in...
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This is an appeal from a judgment of the superior court for Thurston county affirming, in writ of review proceedings, an order of the department of public works, which order granted to the respondent Puget Sound Freight Lines, Inc., a certificate of public convenience and necessity to operate vessels *Page 238 for passenger and ferry service between North Beach or Thompson Point on Orcas Island a...
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HOLCOMB, J., dissents. *Page 258 On September 10, 1926, the respondent and the defendant Washington Idaho Theatres, Inc., entered into a written conditional sale contract whereby the former agreed to sell and the latter agreed to purchase a pipe organ for the sum of $4,892, to be paid in monthly installments. The defendant Will Starkey and the appellant George Turner guaranteed the payments spec...
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This is an attack upon the will of the late Josephine L. McCombs, waged by her son, Roland D. McCombs, individually and as guardian ad litem for his minor son, James Roland McCombs, by Pearl McCombs Clark, daughter of the testatrix, individually and as guardian ad litem for her minor daughter, Elizabeth Clark, and by Denny Clark, son of Pearl McCombs Clark. The respondents in this proceeding are E...
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The appellant was convicted and sentenced to the penitentiary on the verdict of a jury finding him guilty on counts II, V and VIII of an information filed on April 11, 1930. The sentence imposed was for not less than one nor more than five years on each count, to run concurrently. Each count rests upon Rem. Comp. Stat., § 2344, as follows: "Every person who shall allow a prisoner lawfully in his c...
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TOLMAN, C.J., and HOLCOMB, J., dissent. In the complaint in this case, there are two causes of action, separately stated, each upon a real estate broker's bond. The cause was tried to the court without a jury, and resulted in findings of fact from which the court concluded that no recovery could be had. Judgment dismissing the action was entered, from which the plaintiff appeals. *Page 223 There ...
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The respondent sold to the appellant certain machinery, the major part of the purchase price of which was to be paid in deferred installments. The sale was evidenced by two written contracts, but they were executed simultaneously and contemplated a single installation and were identical in terms so far as concerns this controversy; so that they may be regarded for present purposes as constituting...
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This is an appeal from a judgment entered on the verdict of a jury in an action against the appellant, a physician and surgeon, for malpractice. On November 27, 1927, the respondent, who was then seventeen years of age, sustained a fracture of the right femur, at about the middle third, in an automobile accident. At the same time she sustained several minor injuries to the right leg. These were a ...
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In November, 1928, the plaintiff, Peabody, commenced this action in the superior court for King county, seeking recovery of a money judgment against the defendant company. Peabody, in his fourth amended complaint, upon which the cause proceeded to trial, alleged his cause of action as follows: "I. That the defendant now is, and at all times hereinafter mentioned, was a corporation duly organized a...
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This action was brought to recover damages for personal injuries. The defendants denied liability, and affirmatively pleaded contributory negligence. The cause was tried to the court without a jury, and resulted in findings of fact from which the court concluded that the plaintiff was entitled to recover. Judgment in the sum of two thousand dollars was entered against the defendants, from which th...
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This action was originally commenced by the plaintiff lumber company, seeking recovery from the defendants Seaton and Lawson of the alleged value of building material furnished by it to and used *Page 400 by them in the construction of a garage building on land owned by them; and also seeking foreclosure of its claim of lien therefor upon the land and the building. R.L. Cross was made a defendant...
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This action was brought by the plaintiff to restrain the defendant, the state commissioner of public lands, from leasing certain tide lands, owned by the state, and situated at or near the mouth of the Columbia river. The cause was tried to the court without a jury, and resulted in a judgment dismissing the action, from which the plaintiff appeals. There has been a prior trial of the action, and a...
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In a petition for rehearing, the appellant takes exception to the following direction given at the close of the opinion filed herein January 20, 1931 (160 Wn. 412): "Appellant shall pay interest on the respective amounts tendered, from the date when each tax became due." What the court had in mind was that, inasmuch as the appellant, upon commencing this action, did not bring into court the money ...
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This action was brought by appellant, as relator, against respondent, as mayor of Longview, Washington, to compel respondent, as mayor, by mandate to appoint relator to the office of police judge of that city. The petition of relator for the writ alleges that respondent is mayor of Longview, a city of the third class having a population of more than five thousand, and that respondent had been elec...
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The plaintiff, Stubbs, seeks recovery of damages for the death of his minor son Robert, claimed as the result of the alleged negligent driving of an automobile belonging to the defendants, Boone and wife. Defendants, Boone and wife, and their son Daniel Jr., the driver of their car, by their answer, denied negligence on their part, and alleged negligence on the part of plaintiff's deceased son Rob...
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The plaintiffs and the intervener in this action were shareholders in the Spokane Savings Loan Society; the defendants are the Spokane Savings Bank, the Spokane Savings Loan Society, and the officers and directors of those two corporations. The purpose of the action was to have declared illegal and void the transfer of the assets of the Building Loan Society to the Savings Bank. The trial was to ...
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This action was brought to recover damages for fraud, which the plaintiffs claim was practiced upon them in a real estate transaction. The cause was tried to the court and a jury, and resulted in a verdict in favor of the plaintiffs in the sum of $25,714. Motion for judgment notwithstanding the verdict, and in the alternative for a new trial, being interposed by the defendants and overruled, judgm...
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The appellant John F. Barton is a physician and surgeon, specializing in diseases of the *Page 280 eyes, ears, nose and throat. At the time of the transactions hereinafter recited, he had in his employ the appellant Bellas, who is also a specialist in like maladies. In October, 1929, the minor respondent, J.D. Tennant, was suffering from diseased tonsils, and applied to the appellant Barton for t...
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The defendant was charged by information with the crime of murder in the first degree. The trial resulted in a verdict of guilty as charged and a special verdict or finding by the jury that the death penalty should be inflicted. From the judgment and sentence pronounced on the verdict and special finding, this appeal followed. The jury were warranted in finding that, prior to and on October 30, 19...
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This is a receivership proceeding in which the affairs of Gravelle Farmers Elevator Company, a corporation, are being liquidated in the court below. Appellants are creditors holding the promissory notes of the corporation. The trial court disallowed their claims upon the theory that they were barred by the statute of limitations. Appellants rely upon payments made on the notes by the company on Ju...
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This action was brought to recover damages for personal injuries. The cause came on for trial before the court and a jury. At the conclusion of the plaintiff's evidence, the defendant challenged the sufficiency thereof, and moved for a judgment, which motion was overruled. The defendant offered no testimony, but rested upon the case made by the plaintiff. A verdict in favor of the plaintiff in the...
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Elizabeth Bandy, a girl approximately eighteen years of age, was accused of crime by an information which contained two counts, in the first of which she was charged with assault in the second degree, and in the second with interfering with a public officer in the performance of his duties. The jury returned a verdict of not guilty upon the first count, and one of guilty as to the second. At the ...
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In this proceeding, W.H. Hemmi and Albert H. James are rival claimants to the office of justice of the peace in Marietta township, in Whatcom county. January 13, 1931, the regular annual meeting and election of officers was held in that township. The notices posted for the meeting recited that it was to be held January 13, 1930, whereas they should have recited January 13, 1931. There were six not...
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THE COURT. A petition for hearing in this case after decision by the District Court of Appeal, First Appellate District, Division One, was granted by this court. After further consideration we are satisfied with the opinion of the District Court of Appeal and hereby adopt the same as and for the opinion of this court, as follows: "This is an appeal by the State Controller from an order entered in ...
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This is an application for a writ of prohibition. On or about October 8, 1929, Arthur M. Loeb and others, alleging themselves to be minority stockholders of Sunset Pacific Corporation and acting on behalf of said corporation in a representative suit, brought an action in the Superior Court of Los Angeles County against various defendants. It was alleged in the complaint that on April 15, 1929, all...
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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 476 This is an appeal from a judgment in favor of the defendant Walter A. Gripton, a chattel mortgagee, and against plaintiff, the trustee in bankruptcy of the mortgagor corporation, in an action brought by such trustee to have certain chattel mortgages decla...
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This appeal was first passed upon by the District Court of Appeal, First Appellate District, Division Two, Presiding Justice Nourse writing the decision in affirmance of the trial court's judgment. ([Cal.App.] 293 P. 93.) A petition for hearing by this court was granted and the appeal is now before us for decision. Said District Court of Appeal affirmed the judgment upon the ground that the issue ...
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This is an appeal by plaintiff from a judgment of the Superior Court of Sutter County in favor of defendants in an action seeking various forms of equitable relief. The controversy arises out of a contract for the sale of about 1600 acres of real property in said county, entered into by defendants as vendors and plaintiff as purchaser, on October 27, 1927. The sale price was specified to be $65,00...
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This action was brought to cancel two notes and deeds of trust by which they were secured. Upon motion of plaintiffs, judgment was rendered in their favor on the pleadings. Defendants appeal on the judgment-roll. From the pleadings it appears that plaintiffs executed one note and deed of trust on their own property, and later succeeded to the property subject to the other deed of *Page 498 trust ...
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This action was brought by the plaintiff claiming to be the owner of certain real property in the possession of the defendant, for the purpose of obtaining possession of said real property. The defendant held said real property under a lease from one F. E. Johnson and the court permitted said Johnson to intervene in said action, and under said permission he filed a complaint in intervention *468...
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This is an action to quiet title and to annul certain building restrictions contained in the deeds through which the plaintiffs deraign their title to lot 31 of tract No. 1600 in the city of Los Angeles. Plaintiffs *Page 614 seek to avoid the effect of the restrictions by reason of an asserted change of conditions in the character of the neighborhood, it being alleged that their property is no lo...
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THE COURT. This is an appeal by several individual defendants from two orders of the lower court, one confirming a commissioner's sale of property and another settling the final account of a receiver. The issues which are determinative of the appeal were decided in prior litigation between the parties, culminating in the decision of this court in California Nat. Bank v. El Dorado Lime Minerals Co....
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This is an action to recover damages for personal injuries sustained by the plaintiff in a collision between the defendant Eslow's automobile, in which plaintiff was riding as a guest, and a bus belonging to and operated by the Great Western Motorways, a corporation. In their respective answers the defendants denied the allegations of the complaint, the defendant bus company alleging the defense o...
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THE COURT. The plaintiff brought an action for damages for alienation of his wife's affections by the defendant, the wife's aunt. The jury returned a general verdict in plaintiff's favor for $6,000, and divided it, by answers to special interrogatories, into $3,000 compensation for actual and $3,000 for punitive or exemplary damages. A motion for a new trial was denied. The appellant's principal c...
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[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 556 [EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 557 In this cause the pleadings tender both equitable and legal issues which have arisen out of the conflicting *P...
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Appeal from a judgment permanently enjoining defendants, and each of them, their agents, employees and servants, during the pendency of a lease, from interfering with the leasehold rights of plaintiff in property at the southwest corner of 31st and M Streets in Sacramento used as a gas and oil station and of which the plaintiff is the lessee under a recorded "Advertising and Facilities Lease" ente...
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Plaintiff and defendant entered into a contract by the terms of which plaintiff agreed to sell to defendant an hotel business, furniture and other equipment, and to procure a new lease for him. This action is for the balance of the purchase price. The answer of defendant alleged misrepresentations inducing the making of the contract and partial failure of consideration. It further alleged a notice...
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The petition for writ of prohibition is denied and the alternative writ is discharged. One reasoning, briefly, is: First, that we are concerned here necessarily with questions of jurisdiction only and not with defects in pleadings, nor with difficulties, even if *Page 598 well nigh insuperable, which may be encountered in proving the facts necessary to a recovery. The action in the court below is...
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[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 516 These two actions, which have been consolidated on appeal, were instituted under the provisions of sections 1060 to 1962a of the Code of Civil Procedure by the plaintiffs on behalf of themselves and other land owners and water users situated outside of th...
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By reason of the fact that the courts look to the speedy termination of litigation, the stability and enforcement of judgments and decrees already of record and the preservation of records when the opportunity for evidence in support of the facts has ceased by lapse of time, the rule is that the fact conditions decided by a decree are disposed of by that decree in so far as they concern the partie...
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The judgment of nonsuit herein is affirmed. Two of the many reasons which seem to justify the action of the court below will be found in the brief narrative following: The action is by plaintiff corporation, an insurance broker, for damages by way of loss of prospective profits in the form of commissions which were to accrue over a period of fifteen years, lost to it because of the failure of defe...
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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 461 Peter Farrington, accused of the crime of murder in having, on or about April 29, 1930, killed John Malcolm, a police officer of the city and county of San Francisco, was convicted of murder in the first degree, and the death penalty was imposed. It was a...
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THE COURT. This is an action for wrongful death. The deceased, Mrs. Bridget Bowler, a woman sixty-two years of age, was riding in an automobile driven by her son, Edward Bowler, when a collision occurred between the said automobile and one driven by defendant Larson for his employer, defendant Roos. The heirs of Mrs. Bowler, nine in number, joined in this action, and the jury returned a verdict in...
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Appellant was found guilty of murder in the first degree and sentenced to life imprisonment. A large number of witnesses testified at the trial. The testimony on the part of the witnesses for the state tended to show that appellant was guilty of murder in the first degree. Testimony of witnesses for appellant substantiated his plea of self-defense. The evidence discloses that appellant, with his f...
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Plaintiff sought to recover the sum of $1,000 deposited by his assignors with defendants as lessors *Page 418 under the terms of a lease. The cause was tried without a jury and from a judgment in favor of defendants, plaintiff appeals. The lease, executed on May 1, 1926, by defendants and Michael McGuinn and Robert W. Lawton, plaintiff's assignors, was for a term of five years commencing July 1, ...
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THE COURT. Plaintiff corporation, which has its principal place of business in Los Angeles, was at all times material to this case and until about January 25, 1926, a member of an unincorporated association of merchants known as the San Francisco Board of Trade (which will be hereinafter referred to as the board). For some time prior to the month of August, 1925, William R. Davis and Brother, Inc....
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Claiming to be a member of the police department of the city of Oakland, the plaintiff applied to the trial court for a writ ofmandamus commanding the defendant as auditor to draw his warrant in payment of two salary claims. His application was denied. He made a motion for a new trial and the motion was denied and he has appealed from the judgment. Plaintiff set forth a cause of action to recover ...
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THE COURT. On petition for writ of mandate to require that respondent court issue its citation in a proceeding wherein certain persons are accused of an alleged contempt in relation to orders contained in a judgment of respondent court. [1] This court being of the opinion that the act of the accused persons in serving and filing notice of intention to move the court to set for trial the action num...
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Defendant appeals from a judgment rendered against him in an action for damages for personal injuries. The injuries sustained by plaintiff were the result of a collision between him personally and an automobile owned and operated by defendant at a time when defendant was backing his automobile a distance of twenty-six feet out of his private driveway across a public sidewalk on which plaintiff was...
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The first of these two actions grew out of the ordinary automobile accident in which the plaintiff Rosebelle King, a minor, was severely injured and was awarded judgment against both defendants. In the second case the plaintiff Lucile H. King, the mother of Rosebelle King, recovered judgment against both defendants for medical and hospital expenses. The two cases were by stipulation of all parties...
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Plaintiff sued for damages for the death of her minor son who was employed in the playfield of the Golden Gate Park operated by the city and county of San Francisco. The defendants are the park commissioners, the park superintendent, the superintendent of playgrounds and the manager of the "Fleishhacker Playfield". The cause was tried with a jury. At the close of plaintiff's case the trial judge g...
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The petitioner has applied for a writ of prohibition to prohibit the Industrial Accident Commission from proceeding with the rehearing of his ease before said Commission upon the ground that the order granting the petition to reopen said case was made in violation of the requirements of section 20 (d) of the Workmen’s Compensation Act (Stats. 1917, p. 850), in that it was granted without notice t...
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In this motion to dismiss the appeal from the judgment, the record shows that the judgment was entered on December 2, 1930; that the notice of intention to move for a new trial was filed on February 28, 1931, which motion was denied on March 31, 1931; and that the notice of appeal from the judgment was not filed until the twenty-seventh day of April, 1931. [1] It thus appears that considerably mor...
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Plaintiff sued for separate maintenance. The defendant answered setting up a divorce from plaintiff in the courts of the Republic of Mexico. The trial court awarded plaintiff $75 a month and defendant appeals upon a bill of exceptions. [1] Appellant insists that there is no evidence of his ability to pay the amount of the award. The only evidence found is that the appellant was without property, w...
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THE COURT. An information was filed in the Superior Court of the City and County of San Francisco which charged one Leo Buckbee with the commission of a felony, to wit, burglary, and with a prior conviction of a felony in the state of Utah. Upon his arraignment in such cause Buckbee entered a plea of not guilty and denied having suffered a prior conviction. Subsequently on the day set for the tria...
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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 394 This is an action for personal injuries. The jury returned a verdict in favor of plaintiff for the sum of twenty-five hundred dollars. [1] The defendant Pacific Auto Stages, a corporation, operates auto stages upon the San Francisco-San Jose highway. The ...
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The opinion of the court was delivered by . The action was one for damages for injuries sustained by a section man on defendant’s railroad. Plaintiff recovered, and defendant appeals. Plaintiff was riding on a section motor car, operated by the section foreman, Smith, over a roadbed composed of chat, gravel, cinders, and. other material. When the car was operated at a high rate of speed, loose mat...
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A petition for the writ of mandamus was filed by plaintiff in the court below. The defendants interposed a demurrer on general and special grounds which was sustained. Judgment was thereafter entered and this is an appeal from an order vacating that judgment. The points now raised by appellants will be more readily understood if we set down all the facts surrounding the making of the order. The pe...
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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 405 This is an action to secure a decree quieting title to real property and to cancel restrictions. In April, 1922, defendant C.W. Boden, the owner and entitled to possession of a tract of land situated in the city of Oakland, county of Alameda, subdivided t...
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Prom the record herein it appears that defendant was a general contractor to whom plaintiff’s assignor (as a subcontractor) furnished labor and material on each of several different jobs, amounting in the aggregate to an ascertained balance of $2,320.22; that on each of three of such jobs a certain materialman from whom plaintiff’s assignor had purchased paint supplies which had been used on such...
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Plaintiff was the owner and operator of a clothes cleaning and pressing business which he conducted in a storeroom which was a part of a certain building to and for the use of which the defendant furnished steam for heating and other purposes. By means of a tunnel the steam was conveyed in an eight-inch pipe to a point beneath a basement of the building of which plaintiff's storeroom was a part an...
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Plaintiff sued upon a written contract for advertising. The cause was tried by the court without a jury and judgment went for plaintiff as prayed. The defendant appeals upon typewritten transcripts. On February 20, 1928, the parties executed a contract in writing under which plaintiff agreed to run thirty feet of advertising film six days a week alternating weekly between the Southern Pacific and ...
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From the record herein it appears that one Scrimsher while working in the course of his employment received injuries (which later resulted fatally to him) from the negligent operation of a power shovel, which Scrimsher's employer, Oswald Brothers, had rented from the defendant Reliance Rock Company. On the trial of the action brought by the widow and guardian ad litem of the children of the deceas...
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This action was brought by plaintiff to recover the sum of $3,000 alleged to have been had and received by defendants for the use and benefit of plaintiff. Motion for nonsuit was granted as to defendant Nakamura. At the time of trial, by a pleading called a "supplementary answer", Inoguchi not only admitted that he was indebted to plaintiff in the sum for which the action was brought, but as well ...
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This is an appeal from a judgment covering two cases – Nos. 162,584 and 171,792 – which two cases were consolidated for trial and were tried together upon the same evidence. The first of these actions was brought to recover on twenty-five promissory notes, the complaint alleging that the defendant for a valuable consideration waived any right which he (the respondent here) thereafter had to plead ...
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These are actions for personal injuries consolidated for trial wherein judgments were entered for each plaintiff. The cases have likewise by stipulation been consolidated on appeal. Defendant Prukop filed a cross-complaint against the plaintiff Noles wherein he claimed damages. During the trial plaintiffs deemed it material to establish the particular hospital to which defendant had been taken aft...
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The original complaint in this action sets forth two causes of action: First, an action to quiet title, containing the usual averments, and second, a cause of action for cancellation, as to the defendant, of a deed from one Hartley, conveying to all of the parties, as joint tenants, the property described in the complaint, on the ground that the defendant's interest in the property had been obtain...
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THE COURT. This action was brought by plaintiffs to recover from defendant the sum of $2,500, alleged to be due under the terms of a certain written agreement. The case was tried by the court, without a jury, and judgment went for plaintiffs, as prayed. Defendant appeals. On October 5, 1928, the plaintiffs as parties of the first part, and defendant as party of the second part, executed a certain ...
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Robert Marsh and Company, a corporation, gave its note, the subject of this action, to United Finance Company for $6,496.86 indorsed by Robert Marsh. This note was transferred before maturity to J.H. Scales, the president of the United Finance Company. Scales, individually, borrowed the sum of $3,500 from the Pacific National Bank giving his promissory note therefor and the $6,496.86 Marsh Company...
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This is an appeal from a judgment in an action at law tried to the court without a jury. The action was brought by William N. Martin as plaintiff against the appellant, William O. McKay Company, to recover the value of a Whippet automobile. The appellant filed an answer and cross-complaint, seeking by the cross-complaint to recover the unpaid part of the purchase price of a Ford automobile; and, ...
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The plaintiff, Rich, seeks recovery of damages for personal injuries caused, as he claims, by the negligent driving by the defendant, Campbell, of his taxicab. Rich was a passenger in the taxicab. He alleged in his complaint that, by Campbell's negligence, he was injured, ". . . and particularly was caused to suffer the following express injuries, to-wit: Complete fracture of right superior articu...
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This action was brought on behalf of the state by the department of public works against the Inland Forwarding Corporation, a corporation, to enjoin it from operating freight trucks, in a business the corporation had organized, over a regular route between Seattle and Yakima, this state, because the corporation was not the holder of a certificate of convenience and necessity, as required by the ac...
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Mary Godfrey, being a resident of King county and having property therein, died December 5, 1928, at an advanced age. A will executed by her July 18, 1928, was admitted to probate by the superior court for King county on December 13th of that year. The will appointed Julia Godfrey, a step-daughter, executrix, and one Thomas Burns executor, thereof, and the decree admitting the will confirmed the ...
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The respondent, a section hand in appellant's employ, brought this action under the Federal Employer's Liability Act to recover damages for personal injuries which he sustained by reason of being struck on the face by a track wrench, while riding on one of the appellant's motor cars operated on its main railway line in the vicinity of Lamont, Washington. Respondent in his complaint charged that th...
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This case involves a dispute between adjoining landowners in Box Elder county as to the quantity of water each is entitled to use from Clear and Rosevear creeks. From a decree quieting plaintiff's title to a proportion of the creek and of water claimed by him, defendant appeals. Clear creek arises in the mountains near the northern boundary of Utah and runs in a general northerly direction into Id...
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This is a will contest. A Chinese, Dong Ling Hing, generally known as D.L.H.D. Grover, a resident of Park City, Utah, died February 11, 1926, at the age of 63 leaving a substantial estate. Upon application for probate of the estate of the deceased, Dong Team Chew, also known as Joe Grover, the reputed son of the deceased, was in February, 1926, appointed as administrator and thereafter qualified a...
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This is a will contest. A Chinese, Dong Ling Hing, generally known as D. L. H. D. Grover, a resident of Park City, Utah, died February 11, 1926, at the age of 63 leaving a substantial estate. Upon application for probate of the estate of the deceased, Dong Team Chew, also known as Joe Grover, the reputed son of the deceased, was in February, 1926, appointed as administrator and thereafter qualifie...
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I concur in the reversal of the judgment and in remand--ing the case for a new trial In his .complaint the plaintiff alleged that while his automobile at a time stated and a place described in Salt Lake City “was lawfully parked,” the defendant “carelessly and negligently and without due care ran a large truck against said automobile” to plaintiff’s damage in the sum of $153.65. In no particular ...
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On May 31,1924, W. R. Campbell et al. commenced a suit against Luke E. Walker et al. in the circuit court for Klamath county, asking that an injunction issue against defendants restraining them from interfering with plaintiffs in the irrigation of their lands with water from the south fork of Sprague river, and calling for an adjudication of their rights. The court thereupon made an order referri...
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The plaintiff, a widow, brought this action against the defendant for the loss of consortium of her husband whose injury and subsequent death, she alleged, occurred through the negligence of the defendant. A demurrer to the complaint predicated upon the contention that that pleading did not state facts sufficient to constitute a cause of action, was sustained by *Page 342 the circuit court, and j...
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This is an appeal from a decree of the circuit court which awarded judgment in the sum of $5,000 to the plaintiff, who is trustee in bankruptcy of Herman's, Inc., a corporation, upon an alleged balance due the latter upon subscriptions to its corporate stock made by the defendant Leon Bernstein and one D. Solis Cohen, now deceased, whose estate is represented by the defendant Charles Kahn. Accordi...
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In Banc. This is a suit in equity to enforce a trust upon a fund amounting to $2,652.26, which has come into the possession of defendant as state superintendent of banks through the insolvency of the Astoria Savings Bank, and his taking over of its assets for the purposes of liquidation. The case is here upon appeal from an order sustaining a demurrer to the complaint and dismissing the suit. It a...
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In Banc. Plaintiff, who is seventy-seven years of age, filed suit for divorce from defendant, who is fifty-six years of age. In her complaint, after alleging jurisdictional facts and that there are no children, she avers as grounds for divorce cruel and inhuman treatment, the particular specification being in effect: *Page 336 That during the summer of 1923 and up to the time of filing her compla...
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This is an appeal from the district court of Oklahoma county, and the parties will be referred to as they appeared in the trial court, Chas. M. Riedell, plaintiff in error, as plaintiff, and R.T. Stuart and A.L. Welch, defendants in error, as defendants. Plaintiff commenced this action in said court on the 17th of November, 1926, and in his petition alleged, in substance, that he was an expert acc...
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This is an appeal by the protestees from a judgment of the Court of Tax Review sustaining the protest of the Chicago, Rock Island Pacific Railway Company against certain tax levies of Pottawatomie county for the fiscal year commencing July 1, 1929. The first item presented on the appeal involved the sinking fund of consolidated school district No. 1. The protestant confesses error in the judgment...
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This is an appeal by the protestant from a judgment of the Court of Tax Review in favor of the protestee. The protest involved the sinking fund levies for Pottawatomie county and Earlsboro township in that county for the fiscal year commencing July 1, 1930. The basis of the protest is that interest accruing from the deposit of the sinking fund in the various banks should be apportioned and credite...
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This is an original action commenced in the district court of Caddo county by plaintiff in error herein, R.L. Boake, against the defendant in error herein, the city of Anadarko, a municipal corporation, to recover damages. The parties appearing herein will be referred to as they appeared in the trial court. The plaintiff alleged in his original petition that defendant was a municipal corporation; ...
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This is an original action filed in this court to review an award of the State Industrial Commission made and entered on the 20th day of January, 1931, wherein the State Industrial Commission awarded respondent E. Hohimer 100 weeks' compensation at the rate of $18 per week for the loss of the sight of the left eye. Petitioners contend that the award is contrary to law; the said award was not suppo...
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This is an appeal by the protestant from a judgment of the Court of Tax Review denying the protest of the St. Louis-San Francisco Railway Company against certain Oklahoma county township levies for the drag fund for the official year commencing July 1, 1930. There is herein involved the validity and application of section 10203, C. O. S. 1921, and in addition thereto it is here contended that the ...
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This cause comes from the district court of Creek county, Honorable Fred A Speakman being judge. The *Page 118 case started by the filing of a petition in the district court of Creek county by Salina Land and Joseph H. Land against the Pluto Oil Gas Company and the Gulf Pipe Line Company of Oklahoma on the 27th day of September, 1921. The petition sought to recover the oil that was extracted fro...
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This is a suit by Horace Hollis, plaintiff, against the Farmers Union Co-Operative Gin, an Oklahoma corporation, defendant, seeking to collect for salary due and unpaid. The defendant company was organized for the purpose of constructing and operating a cotton gin. A board of directors had been selected and said board desired to secure a manager for the cotton gin. Plaintiff met with the board of ...
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This is an appeal from the judgment of the district court of Logan county in an action wherein plaintiff in error was plaintiff. Plaintiff in error has served and filed his briefs in this cause as required by the rules of this court. The defendants in error have failed to file any brief or to offer any excuse for failure to do so. We have examined the brief of plaintiff in error, and the assignmen...
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This is an appeal from the judgment of the district court of Okmulgee county in an action wherein plaintiff in error was defendant. Plaintiff in error in due time served and filed his brief in full compliance with the rules of this court, but the defendant in error has wholly failed to file any brief, or to otherwise plead to the merits of the cause in this court, nor has it offered any excuse for...
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This is an appeal by the protestee from a judgment of the Court of Tax Review sustaining a protest of the Chicago, Rock Island Pacific Railway Company of a part of the levy of the sinking fund of Jefferson county for the fiscal year commencing July 1, 1930. The facts out of which this controversy arose are as follows: Sometime prior to March, 1928, the qualified voters of Jefferson county, at an ...
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This is an action by F.W. Hammond against the Commissioners of the Land Office of the State of Oklahoma, to quiet title to certain lots located in the city of Lawton. The lots were originally a portion of a tract of land granted to the state under the Enabling Act for school purposes. They were sold to various persons by the Commissioners of the Land Office and *Page 128 certificates of purchase ...
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Dolese Brothers Company, a corporation, prosecutes this appeal from a judgment of the district court of Comanche county dismissing its appeal from the board of equalization of that county. The appeal was dismissed for the reason that no transcript of the evidence taken before the board of equalization was by it filed in the district court, and for the further reason that appellant, having paid the...
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This is an original proceeding by the petitioners seeking to review the record and order made in the proceeding before the State Industrial Commission wherein Tom Fritts was claimant and Hankins Brothers Company were respondents. The order of the State Industrial Commission was made on the 6th day of March, 1931, in favor of the respondent, Tom Fritts, awarding him compensation for a total permane...
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Plaintiff instituted suit in the district court of Tulsa county, Okla., to cancel deed of conveyance, covering real property in the city of Tulsa, which said deed plaintiff alleged was a forgery. The case was tried to the court without a jury, and, at the conclusion of said trial, the court made the following finding: "The court finds the issues of fact herein in favor of the defendant and against...
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Robert A. Johnson died *Page 259 testate seized of the west 70 feet of lots 1 to 6, inclusive, in block 15, Longview addition to the town of Carney, Okla., together with other property. These lots were not disposed of by the will. The remainder of his property, both real and personal, was devised and bequeathed one-third to Elnora Johnson, his surviving wife, and the remaining two-thirds to his c...
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The plaintiff in error, hereinafter called defendant, was convicted of murder in the district court of Carter county, and his punishment fixed at death. The record discloses that at the time charged defendant and his brother were at the town of Wirt, in the possession of a stolen automobile. Two deputy sheriffs, W. C. Keirsey and Vernon Cason, went to the place where the defendant and his brother ...
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The plaintiff in error, hereinafter referred to as the defendant, was charged by information in the county court of Comanche county with possession of intoxicating liquors, and on a plea of guilty the *Page 84 court sentenced the defendant to serve a term of 45 days in the county jail and pay a fine of $100 and costs. The defendant's plea of guilty was entered on the 17th day of July, 1930, and o...
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The plaintiff in error, hereinafter called defendant, was convicted in the district court of *Page 82 Tulsa county of the theft of an automobile, and was sentenced to serve a term of 15 years in the penitentiary. The record discloses that at the time charged defendant, a young man about 20 years of age, and two other young men, stole an automobile at Tulsa and were apprehended with it near Sand S...
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Plaintiff in error, hereinafter called defendant, was convicted in the district court of Wagoner county of the crime of robbery with firearms, and his punishment fixed by the jury at imprisonment in the state penitentiary for 30 years. The evidence of the state was that the defendant, Ealph Ehodes, and Eddie Cowden committed the crime of robbery with firearms by robbing the Security National Ba...
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The plaintiff in error was convicted in the district court of Blaine county of forgery in the second degree, and his punishment fixed at imprisonment in the state penitentiary for a period of one year, and costs of this prosecution, from which judgment the defendant has appealed. The petition in error and case-made was filed in this court on the 17th day of March, 1931. No further appearance ha...
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The plaintiff in error, hereinafter referred to as the defendant, was convicted of the possession of intoxicating liquor, with the intent to barter, sell, give away, or otherwise furnish to others, and was sentenced to pay a fine of $500 and to be imprisoned in the county jail for six months. Motion for new trial *Page 77 was filed, considered, and overruled, and the defendant duly excepted. The ...
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The plaintiff in error was convicted in the county court of Lincoln county of having possession of intoxicating liquor, to wit, three pints of corn whisky, containing more than one-half of 1 per cent, alcohol, measured by volume, and capable of being used as a beverage, with the intent then and there, on the part of the said Norman Alley, to sell, barter, give away, or otherwise furnish the same,...
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The plaintiff in error was convicted in the county court of Lincoln county of having possession of intoxicating liquor, to wit, 16 half pints of corn whisky, containing more than one-half of 1 per cent, alcohol, measured by volume and capable of being used as a beverage, with the intent then and there on the part of the said Ik C. Alcorn to- sell, barter, give away, or otherwise furnish same, and...
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Plaintiff in error, hereinafter called defendant, was convicted in the county court of Atoka county of the crime of unlawful possession of intoxicating liquor, and his punishment fixed by the court at a fine of $100 and confinement in the county jail for a period of 30 days. The evidence of the state was that the officers had a search warrant and on searching defendant's premises found five or six...
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The plaintiff in error was convicted in the county court of Jackson county of the crime of selling intoxicating liquors, and was sentenced to pay a fine of $75 and serve a term of 45 days in the county jail, and has appealed. The petition in error and transcript of the record were filed in this court on January 9, 1931. No further appearance has been made by the plaintiff in error, nor any furt...
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Plaintiff in error, hereinafter called defendant, was convicted in the district court of Comanche county of the crime of murder, and her punishment fixed by the jury at imprisonment in the state penitentiary for the term of her natural life. The record discloses that on the 13th day of August, 1929, the defendant shot and killed one Ted Culver, in the town of Lawton; that deceased was a member ...
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The plaintiff in error, hereinafter called defendant, was convicted in the district court of Noble county of murder and was sentenced to life imprisonment. At the time charged, defendant and his wife, Melissa Mayberry, negroes, had been married about two years. About a week prior to the homicide they had a controversy and defendant had not been staying at the home. Late on the Sunday afternoon of ...
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This is an original proceeding in habeas corpus. Petitioner alleges that she is unlawfully imprisoned and restrained at Oklahoma City by the chief of police of said city, John Watt; that according to the best of her knowledge and behalf she is charged with the pretended violation of an ordinance of the city of Oklahoma City for the crime of vagrancy. Petitioner alleges that said restraint is illeg...
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The plaintiffs in error were convicted in the district court of Wagoner county of the *46 crime of forgery in the first degree, and their punishment fixed at hard labor for a term of fifty years in the state penitentiary, and have appealed. The petition in error and case-made was filed in this court on March 12, 1931. No further appearance has been made by the plaintiffs in error; nor any fur...
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The plaintiff in error was convicted in the county court of Oklahoma county of the crime of maintaining a. public nuisance, and his punishment fixed at a fine of f 100 and confinement in the county jail for 30 days, and has appealed. The petition in error and case-made were filed in this court March 5, 1931. No' further appearance has been made by the plaintiff in error; nor any further extensi...
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OPINION OF THE COURT This is an appeal from a judgment of the district court of Colfax county, dismissing an appeal from the order of the probate court allowing claims against the estate, by L.S. Wilson, guardian of the heirs of the decedent. See 35 N.M. 167,290 P. 742, where motions were disposed of. [1] Copied in the record proper there is an affidavit of appellant whic...
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The plaintiff in error, hereinafter called defendant, was convicted in the district court of Seminole county of manslaughter in the first degree ,and his punishment fixed at four years in the state penitentiary. The record discloses that at the time charged defendant was driving an automobile while in an intoxicated condition, and while doing so struck and killed Harry Hannah, a youth about 12 ...
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This proceeding in certiorari is before us upon hearing granted after decision by the District Court of Appeal, Second District, Division Two (291 P. 861), refusing to annul an order of the Superior Court of the County of Los Angeles made by Judge Moncur of Plumas County, sitting as judge pro tempore in said court, which order appointed, or confirmed the previous appointment of a referee to take a...
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THE COURT. After a further consideration of the merits of this appeal upon rehearing, we have concluded that the opinion written by Mr. Justice Shenk and filed herein on *Page 622 April 30, 1931, expresses the present opinion of this court in determining the issues presented on the appeal. Said opinion is therefore adopted as the opinion and decision of this court, and is as follows: "This is an ...
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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 584 This action was originally appealed to the District Court of Appeal, Fourth District, which court, upon submission of the case, affirmed the judgment of the trial court. We granted a petition for a transfer thereof to this court for the reason that we wer...
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Appellant instituted this action seeking to abate an alleged nuisance and to recover damages alleged to have been occasioned thereby. At the close of appellant's case respondents made a motion for nonsuit which was granted. From the judgment entered, appellant has prosecuted this appeal. This action grew out of a controversy over the construction to be placed upon certain provisions of a deed exec...
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Plaintiff appeals from a judgment denying recovery in an action instituted by it to recover damages from a notary public and the surety on her official bond. The record discloses the following pertinent facts: For approximately two and one-half years prior to December 27, 1928, one Lewis H. Homer was an attorney-in-fact for respondent Indemnity Insurance Company of North America in the city of San...
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Respondent is a corporation whose principal place of business is in the city of San Pedro, California, *Page 564 where it is engaged in the business of supplying gear, tackle and supplies to ocean-going boats. The defendants J.V. Giaconi, Mrs. K.M. Giaconi and Peter M. Hanson were the owners of the ocean-going motor boat Astorian, which was engaged in fishing along the Pacific Coast from Alaskan ...
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This is an appeal by plaintiff American Material Service Company, a corporation, from a judgment allowing priority of a deed of trust of defendant John R. McCoy and Title Guarantee and Trust Company over the mechanic's lien of plaintiff. The facts are briefly these: Defendant L.O. Wallin, Fred W. Klein and Frances Klein owned a lot in the city of Los Angeles. During the early part of 1926 they com...
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The defendant, the county assessor of the county of San Diego, was convicted on two counts of an indictment charging him with malfeasance in the use of public funds. The first of said counts charges that the said defendant did wilfully, unlawfully and feloniously use for purposes not authorized by law, public moneys in the amount of $21,599.69, which moneys were in his possession in his official c...
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Plaintiff sued for damages for the death of her son, who was drowned while employed in the construction of a tunnel for the East Bay Municipal Utility District. The demurrer of the district was sustained and the cause went to trial before a jury, which returned a verdict against the defendant Smith Bros., Inc., for $7,500. This defendant has appealed under section 953a of the Code of Civil Procedu...
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This is an appeal from an order purporting to grant a new trial after a previous order had been duly made and entered denying plaintiff's motion for a new trial. The appeal is presented to this court upon a bill of exceptions. It is contended the court was without jurisdiction to change its original order denying a new trial. The plaintiff lost a hand in operating a drag-line excavating machine. I...
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This is an appeal by defendant from a judgment convicting him of murder and from an order denying his motion for a new trial. *Page 313 The debatable point in the case is whether the court erred in allowing testimony tending to show an undue intimacy between defendant and the wife of Swarthout, the deceased, hence tending to show motive. Defendant, a widower, lived with his mother and two sons on...
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In this cause the defendant in 1927, being the operator of certain oil-wells, withheld out of the money due to plaintiff under an instrument designated "Assignment of Royalty," money for the purpose of paying the net income tax upon the royalty yielded to plaintiff upon his alleged royalty interest during the calendar year of 1926, claiming the right to do so by virtue of the provisions of Chapter...
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The commission agreed upon was due to plaintiff when within the time limit it brought the parties together and the customer 2. Right of broker employed by owner as against prospective purchaser who refuses to complete purchase, see note in 20 A.L.R. 214. *Page 318 was accepted by the employer. (Shober v. Dean, 39 Mont. 255,102 P. 323; Laux v. Hogl, 45 Mont. 445, at 450,123 P. 949; Shober v. Black...
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The complaint does not state any cause of action. In the absence of a sufficient plea for special damages, the complaint in a libel action must show a libel per se, or it states no cause of action at all; the allegation of damages in the complaint is a general one, and wholly inadequate as a plea for special damages; the publication complained of is not a libelper se. Ergo: the complaint states no...
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This action was instituted in the district court of Caddo county *Page 164 by the state of Oklahoma ex rel. Wm. McFadyen, county attorney of Caddo county, Okla., plaintiff in error herein, against Alfalfa union graded school district No. 4, W.H. Holtzclaw, V.W. Stephens and W.D. Harris, defendants in error herein. The plaintiff in error herein filed its original petition against the defendants in...
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This is an appeal from the judgment of the district court of Pottawatomie county rendered on the 9th day of March, 1928. The parties will be referred to as they appeared in the trial court, John A. Villines and Minnie C. Villines, his wife, plaintiffs in error, as plaintiffs, and John A. Conatser, defendant in error, as defendant. Plaintiffs were the owners of and resided on a tract of land, compr...
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This is an appeal from a judgment of the district court of Texas county in favor of the defendants in error, defendants in the trial court, against the plaintiffs in error, plaintiffs in the trial court. The parties hereinafter will be referred to as they appeared in the trial court. The record shows that a general demurrer of the defendants to the petition of the plaintiffs was sustained. The pla...
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This is an appeal from the judgment of the district court of Lincoln county granting a new trial. Spellman Company brought an action in that court against E.D. Aughenbaugh to recover on an Illinois judgment. The judgment was a judgment upon confession based upon power of attorney alleged to have been executed by defendant. No service of summons was had upon him. The defense was that the power of ...
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This action was commenced in the district court of Grant county, Okla., by Lee Berline, defendant in error, against Ora Berline, plaintiff in error, for divorce. The parties will be referred to as they appeared in the trial court. Plaintiff alleged in his petition that defendant had defeated and destroyed the end of matrimony by fault-finding and hectoring and prayed for divorce. Defendant filed a...
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This is an action by Eliza and others, Seminole Indians, against Ray W. Reed and others, to recover certain real estate located in Seminole county. The land originally constituted the allotment of Lusanna, a full-blood Seminole Indian, who died in March, 1911, and left as her only heir her father, Tommy, who was also a full-blood Seminole. In May, 1911, Tommy conveyed the land to T.S. Cobb, who wa...
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This action was begun in a justice of the peace court of Pottawatomie county by Sam C. Musson, defendant in error, as plaintiff, against E.H. Phillips, plaintiff in error, as defendant, for the recovery of a money judgment on a promissory note in the sum of $200. The parties will be referred to as they appeared in the trial court. Judgment was rendered by the justice of the peace in favor of the p...
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The State Industrial Commission found that Herman Brown on July 4, 1930, "was engaged in the operation of a hazardous industry subject to and covered by the provisions of the Workmen's Compensation Law of the state of Oklahoma, to-wit; delivering for the respondent on a motorcycle. That, arising out of and in the course of such employment with respondent herein, claimant sustained an accidental pe...
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The plaintiff in error, hereinafter called defendant, was convicted in the county court of Ok-fuskee county of having the unlawful possession of whisky, and was sentenced to' pay a fine of $250 and to serve 90 days in the county jail. The record discloses that at the time charged, officers with a search warrant found on premises adjoining that of defendant a half gallon of whisky. There is also...
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Plaintiff in error, hereinafter called defendant, was convicted in the superior court of Creek county of the crime of grand larceny, by the jury, who returned the following verdict: *Page 100 "We, the jury impaneled and sworn in the above entitled cause, do upon our oaths, find the defendant guilty of grand larceny, and fix his punishment at eighteen months in the penitentiary, and we recommend t...
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The plaintiff in error, hereinafter referred to as the defendant, was convicted of arson in the second degree, and his punishment fixed at imprisonment in the penitentiary for the term of one year and one day; and he appeals. The record in this case was filed in this court March 9, 1931; no brief has been filed in support of the defendant’s assignment of errors. *99 A careful examination of...
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This is an original proceeding to disbar E.A. Lohrke, an attorney of this court, brought on October 31, 1930, by the Attorney General upon the recommendation of a grievance committee of the State Bar Association. The respondent filed an answer to the accusations. Thereafter the court appointed Wallace W. Clark, Esquire, a member of the bar, located in Phoenix, Maricopa county, as referee to take a...
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S.H. Stewart, hereinafter called plaintiff, brought suit as trustee in bankruptcy of the estate of Edward Guy Attaway against the Southwest Cotton Company, a corporation, hereinafter called defendant, to enforce an implied agreement of a principal to reimburse his agent for losses sustained in carrying out his agency. The alleged agency was based upon an oral contract which was set forth in full d...
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This is an appeal from an order approving the ninth annual report of the trustees of a testamentary trust created by the will of Austin Byron Dunlap, including a claim for compensation of trustees during that accounting period. Austin Byron Dunlap, a resident of Phoenix, Arizona, died testate in 1919 leaving an estate of approximately a million dollars, consisting, principally, of high-class liste...
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The defendant was convicted of murder in the first degree and sentenced to be executed. He appeals. The evidence shows that he is a native of Finland. He came to the United States in 1914, and to Salt Lake City, Utah, in December, 1927. Soon after he arrived in Salt Lake City he purchased a pool hall and restaurant which he conducted until August, 1928. In January, 1928, he became acquainted with ...
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Plaintiff was injured as a result of a collision on June 8, 1929, between a Buick automobile driven by the defendant Phillip S. Mahoney and a Chevrolet automobile driven by one Dan F. Eagan. Both Mahoney and Eagan were sued. The latter entered a special appearance on account of want of proper service of summons. A change of venue was taken from Natrona to Sheridan County, and the cause was tried a...
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An information was filed in this case against the defendant, William H. Perue, in three different counts, the first count charging him with the possession, on September 5, 1929, of a still, designed and intended to be used by the defendant for the manufacture of intoxicating liquor. The second count charged him with the possession of intoxicating liquor on September 5, 1929, and a third with the u...
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OPINION OF THE COURT The plaintiffs appellees, heirs at law of C.S. Hart, deceased, maintained this action for the purpose of canceling their deed of conveyance of certain land to defendant B.B. Walker, one of appellants, on the ground that the conveyance was induced by the fraud of said defendant. Judgment was entered by the trial court canceling the deed of conveyance a...
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OPINION OF THE COURT Carrie Adair Armijo, Luis Martinez, and Roy Gentry were jointly indicted for conspiracy to burglarize the Bernalillo county courthouse, and to steal therefrom a box containing $1,300 in money, both box and money the property of the state. They were also jointly indicted for larceny of said box and money. By agreement of the parties and by order of the...
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delivered the opinion of the court. Jennie R. Becker, defendant in error, hereinafter referred to as plaintiff, brought an action against B. Lutz, plaintiff in error, hereinafter referred to as defendant, to recover damages for the conversion of certain property. Trial was had to the court without the intervention of a jury; certain findings of fact were made, and judgment rendered for plaintiff. ...
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delivered the- opinion of the court. Anna M. Nordlander sued Nellie C. Russell and several tenants to recover possession of certain real property in Denver, and for damages for its detention. Before the trial John P. Moody, the ABC Realty Company, and Edward S. Ballenger were made defendants, and Minnie B. Wood was substituted for Nellie C. Russell as a defendant. Judgment went against the plai...
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A. P. SAMPLES sued Labbe Manufacturing Company, R. A. Labbe, John F. Busboom, Magnus Nielson, Clifford L. Dundas, Fred C. Jones, William T. Binford and John E. Moore for damages alleged to have been sustained by Samples and his ten assignors by reason of alleged fraudulent representations in the sale of capital stock of the company. The individual defendants were officers and directors of the comp...
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Judgment affirmed en banc without written opinion. ...
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ADDIE W. Walton, daughter of Charles Walton Wormington, deceased, sued her mother, Adrienne R. Wormington, Hannah M. Wormington, her sister, and the Colorado National Bank seeking a judicial determination of her rights under the will of her grandfather, Henry Wormington, deceased. She prosecutes this writ to review an adverse judgment. Henry Wormington died testate May 27, 1911, leaving surviving ...
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BENDINA Henderson sued the People's Pharmacy Company and William Rogers, who owned practically its entire capital stock, to recover damages caused, she alleged, by the intoxication of her husband, George Henderson. Judgment was rendered for the defendants. *Page 339 The action was brought under section 3719 of the Compiled Laws, which provides: "Any wife * * * who shall be injured in person or pr...
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The plaintiff, a minor, by his guardian ad litem, commenced this action in the superior court *Page 460 for King county, seeking recovery of damages for personal injuries suffered by him alleged as the result of the negligence of the defendants city and Seattle school district No. 1, as follows: "That on the 4th day of October, 1929, plaintiff was riding a motorcycle, and coming down along East U...
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MILLARD, J., dissents. *Page 516 Plaintiff filed in this court his application for a writ of review, seeking to bring before us for consideration an order of the superior court, dated July 20, 1931, denying the application of this plaintiff, filed in the case of Rosenburg v. Marston, an action pending before the superior court for King county, for an order requiring the receiver of the tenant of ...
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July 1, 1930, the department of public works of Washington entered an order in its cause No. 5896, directing that West Coast Telephone Company (the owner of the telephone system in the city *Page 485 of Everett, as successor to Puget Sound Telephone Company) ". . . discontinue the use of telechronometers in Everett and vicinity, and disconnect and remove the instruments and appliances from its te...
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This is a personal injury action in which the parties concede that their rights are governed by the provisions of the Federal Employers' Liability Act. At the time of his injury the plaintiff was a brakeman in the employ of the defendants, who are common carriers. From a judgment in favor of the plaintiff, based upon a verdict, the defendants appeal. Since the assignments of error are limited to t...
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Plaintiff, while walking from the second to the first floor of the Morgan building in the city of Portland, slipped on the stairway and, in falling, sustained an injury. To recover the damages alleged to have been thus sustained, he brought this action against the Fechheimer Estate Company as owner of the building and the Morgan-Bushong Investment Company as lessee. The stairway in question was e...
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In Banc. Defendant was convicted of the crime of forging the name of Tom Lorenzen as an endorsement on a warehouse receipt issued by the Boyd Union Elevator Company located in Wasco county, Oregon, to cover the storage of wheat owned by Tom Lorenzen. At the conclusion of the evidence the defendant moved for a directed verdict of acquittal for the reason, among others, that there was no evidence te...
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This is a suit to remove an alleged cloud upon the title to certain lands described in the record. It involves the validity of an attachment and judgment by virtue of which the land was sold upon execution. The facts are as follows: On October 31, 1922, D.B. Halberstadt filed a complaint against J.H. Crans in the circuit court of the state of Oregon for Josephine county. An affidavit and undertaki...
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On the Merits (6 P. (2d) 1085) Plaintiff brought this suit for divorce on the grounds of cruel and inhuman treatment. She alleges many specific acts of such treatment. She asked for the custody and control of four of the minor children and for support for herself and said minor children, attorneys ’ fees, and a one-third interest in the real estate owned by the defendant and described in the compl...
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In Banc. Plaintiff makes application to this court for an order granting plaintiff and respondent an additional sum as suit money, $250, to enable respondent to make her defense. The motion is governed by the principle announced in the opinion this day rendered in the case of LaFollett v. LaFollett, 138 Or. 411 (2 P.2d 1109). For want of jurisdiction in this court to allow the application, the sam...
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The accident out of which the present proceedings developed occurred at the Oaks Amusement Park in the city of Portland, Oregon. The Oaks Park is leased and controlled by the United Amusement company. Among the many amusement devices or concessions operating in the park is that known as the "Merry Mix Up," owned by the United Amusement company and operated by Louis Crillo and E.H. Bollinger. The a...
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This action was prosecuted under section 2991, Oregon Laws, 1920, in the name of the state of Oregon for the use and benefit of Albert Pegan and Joseph Gassman, plaintiffs, against American Surety Company of New York, a corporation, and J.W. Sweeney and Fred Sparth, individuals, and as copartners, doing business under the firm name and style of J.W. Sweeney Construction Company, defendants. Among ...
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In Banc. On July 12, 1920, there was filed in the circuit court of Oregon for Multnomah county, a complaint by the defendants herein against the Highway Commission praying for an injunction against the building of a certain portion of the west side Pacific highway in Polk county. Later the Warren Construction Company, plaintiff herein, was also made a party defendant in that suit. On July 26, 1920...
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In Banc. On February 28, 1930, a decree was entered determining the relative priority of water rights in Pine creek and its tributaries. This appeal concerns those rights adjudicated in Contests 8 and 10. The motion to dismiss the appeal is based upon the ground, among others, that the transcript was not filed within the statutory time and that therefore this court has no jurisdiction. It is discl...
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motion of appellants the appeal herein is ordered dismissed. ...
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On motion of respondent Boris A. S. Aronow, supplemented by motion of the Attorney General, for Appellant, tbe appeal herein is dismissed. ...
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On motion of respondent praying dismissal of the appeal herein on the grounds that the order of *614 which appellant complains is not an appealable order, and that the appellant is not a party aggrieved within the meaning of section 9730, Revised Codes 1921, is sustained and the appeal ordered dismissed. Mr. Merle C. Groene, for Respondent. Messrs. Ayers & Ayers,...
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Upon motion and stipulation of tbe parties it is ordered that tbe appeal herein be and tbe same is dismissed. ...
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Decided April 14, 1931. The petition of relator for a writ of review herein is denied....
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