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All Reporters → p2d → Volume 29

Opinions in p2d Volume 29

This is an original proceeding in this court for a writ of mandamus by the Osage County Savings Loan Association against Jesse J. Worten, judge of the district court of Osage county, state of Oklahoma. It appears from the record that the plaintiff herein instituted an action in the district court of Osage county against Albert Holder and other persons for the recovery of a money judgment on a cer...
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This is an original action in this court wherein the Oklahoma City Building Loan Association seeks a writ of mandamus against Sam Hooker, district judge, to compel him to grant a default judgment. In the petition it was alleged that on February 25, 1933, the plaintiff commenced an action in the district court of Oklahoma county against Ruth B. Carson and the Citizens Finance Company, the same bei...
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The record shows that this cause was commenced in the district court of Oklahoma county on May 23, 1932, for the purpose of procuring a money judgment on a promissory note and a judgment for the foreclosure of a real estate mortgage given to secure the same; that on August 15, 1932, a judgment was rendered in favor of the plaintiff in the amount sued for and for the foreclosure of the mortgage; th...
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This appeal is perfected from a decision of the district court of Tulsa county refusing to issue a writ of mandamus to compel the court clerk of that county to issue a summons in a mortgage foreclosure action. The parties appear in this court in the order of their appearance in the trial court, and will be referred to as plaintiff and defendant, respectively. The mortgage foreclosure action was fi...
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On September 24, 1930, the county judge and the county treasurer of Garvin county, Okla., on behalf of said county filed an accusation against S. M. Muse, county commissioner, charging him with habitual and willful neglect of duty, willful maladministration, and habitual drunkenness in public office. On the same day W. G. Long, judge of the district court, signed an order of suspension. On Octobe...
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This action was commenced by defendant in error, Dollie Miller, hereinafter referred to, as plaintiff, against the Mid-Continent Life insurance Company to enforce payment on a policy of insurance issued by said company upon the life of James Moses Miller deceased. This action is treated by both parties as an action at law. It is so treated by this court. Dollie Miller is the widow of the insured a...
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This case involves a question of fact as to the value of certain second-hand furniture. The jury fixed its value at $50, and plaintiff in error, plaintiff below, appealed. No errors of law are urged. The only complaint of plaintiff in error is that the recovery fixed by the jury is inadequate. From an examination of the record we find that the case was fairly tried, the jury properly instructed, ...
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This is an appeal from the judgment for defendants in an action on a promissory note. Defendants admitted the execution of the note sued upon, but pleaded in substance that the note in question, in the sum of $430.45, dated November 15, 1926, and due November 15, 1927, was executed for merchandise, and that an oral agreement existed between the parties that such merchandise could be returned by de...
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C. I. T. Corporation, a corporation, defendant in error, to be referred to herein as plaintiff, instituted an action in replevin in the district court of Oklahoma county, Okla., against J.H. Morgan, Walter Moore, Western Motor Company, a corporation, and C.D. Sautbine, *Page 182 plaintiffs in error, to be referred to herein as defendants. The judgment of the trial court was in favor of the plaint...
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The plaintiff in error instituted an action in the district court of Beckham county, Okla., against the defendant in error to recover a money judgment *Page 176 for an amount due under a verbal contract. He filed, or caused to be filed in the action, a garnishment affidavit and procured the issuance out of the office of the court clerk of that court of a number of garnishment summonses. The defen...
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This is a proceeding to vacate a part of the plat of South Side addition to Ponca City, Okla. The Ponca City Development Company and Continental Oil Company filed a petition in the district court seeking to vacate a portion of the recorded plat of South Side addition to the city of Ponca City, Okla. Lewis Dodson and other property owners who had purchased lots within a portion of said South Side a...
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This is an appeal from a judgment entered against plaintiff in error upon a verdict directed by the court in favor of defendant in error. The record discloses that plaintiff in error, on and prior to February 15, 1928, was engaged in the business of selling automobiles and motor trucks at Bethany, Okla., under the name of the A.R. Read Chevrolet Company. On that date he sold to John Tackett and Mr...
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On August 27, 1930, Joe Whitt, a policeman of the city of Altus, while undertaking to apprehend certain suspected criminals, received a gunshot wound in the head, which resulted in the total loss of one of his eyes and a substantial impairment of the vision of the other. The injury was accidental in character and arose out of and in the course of the performance of Joe Whitt's duties as a policema...
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This is an appeal from a judgment for plaintiff in an action in unlawful detainer. The contention of plaintiff was that defendant was his tenant, and lawfully entered into possession of the premises involved. That the tenancy was from month to month, and that in November, 1929, the said tenancy was terminated by plaintiff by serving written notice on defendant to deliver up possession of the premi...
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The question presented in this case is: Were the vendors in a contract for the sale of real estate, which provided that the purchase price should be paid on the deferred or partial payment plan, entitled to interest on the unpaid portion of such purchase price prior to the due date of the deferred payments? On the 5th day of May, 1920, a written contract for the sale of real estate was entered int...
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This action was commenced by R.L. Anderson, herein referred to as plaintiff, against the board of county commissioners, the county clerk, and the county treasurer of Garfield county, herein referred to as defendants, for an injunction enjoining defendants from erecting a courthouse, and expending any funds of the county therefor, upon a strip of land running across the courthouse square in the cit...
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This action was commenced in the district court of Tulsa county by Blanch Dearstone against Anna Grube, Pearl M. Laws, and James Calvin to cancel certain instruments and quiet title to lots 23 and 24 of block 3 of the city of Broken Arrow, Tulsa county, Okla. The trial court rendered judgment canceling the instruments and quieting title in plaintiff, and rendered a judgment against plaintiff for ...
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On November 17, 1933, the plaintiff made application and was granted permission by this court to commence an original proceeding in mandamus to compel the defendant, F.C. Carter, as State Auditor, to issue to plaintiff warrants for salary as Secretary to the Commissioners of the Land Office. The defendant waived the issuance of an alternative writ and agreed to answer plaintiff's petition, the ans...
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J.C. Patton, hereinafter called claimant, suffered an accidental personal injury alleged to have arisen out of and in the course of his employment with Shell Petroleum Corporation, and this company petitions for a review of an award made claimant upon a change in conditions, and it will be referred to herein as petitioner. The claimant filed a claim for compensation nearly one year after the date ...
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Causes Nos. 22731 and 22732 present but one issue for determination, and have been consolidated by appropriate order. Frank Dale and Martha W. Dale, husband and wife, executed a joint will dated August 6, 1929. By the terms of the will each devised to the other all property, real and personal, of which each devisor died seized and possessed, and further provided that upon the death of the survivor...
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On July 11, 1929, C.C. Worrell, while in the hospital in Edmonton, Canada, executed what purported to be his last will and testament, designating therein his sister, Eva Worrell Murtey, as executrix and wherein he bequeathed one John Ingle, Sr., an "automobile represented by his promissory note in my favor for $1,073." The will also directed the executrix to pay to said John A. Ingle, Sr., "whatev...
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This is a proceeding to review an award of the State Industrial Commission under the Workmen's Compensation Law. Respondent, an employee of H.B. Derr, petitioner, sustained an accidental personal injury on December 15 1930, arising out of and in the course of his employment with said petitioner. Respondent was carrying a box of dynamite caps. He stumbled, slipped, and dropped the caps in a nearby ...
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This is an appeal from a judgment of the Court of Tax Review sustaining a protest as to the rate of levy for the library fund of the city of Shawnee, Okla., for the fiscal year commencing July 1, 1932. It appears from the record that the financial statement as of June 30, 1931, for the library fund, showed a balance on hand at that time of $5,670.94, and that that balance was used as an asset in c...
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Plaintiff, whose crop was insured under the provisions of Chapter 39, Revised Codes 1935, by the State Board of Hail Insurance, brought this action against the Board to recover the sum of $2,200, that sum being the amount of loss he claimed to have sustained by reason of a hail storm on the 21st day of June, 1940. Trial was had before a jury and verdict rendered in favor of the plaintiff in the su...
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This is an appeal from a judgment of the district court of Craig county in favor of the defendant in error, a landowner, against the plaintiff in error, who had condemned certain land for municipal waterworks purposes, for the amount of damages sustained by reason of the condemnation of the land. The record shows that commissioners were appointed in the condemnation proceeding by the district cour...
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Frank H. Thayer instituted an action in the district court of Kiowa county, Okla., against J.H. Moore, seeking relief concerning conflicting claims of possession of an office. Thayer obtained relief in the form of a permanent injunction enjoining Moore from claiming the office or attempting to exercise the duties thereof or interfering with Thayer in his exercise of the duties of said office. The ...
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This is an appeal from an order of the district court of Carter county reviving a judgment theretofore rendered against the plaintiff in error in favor of the defendant in error. Hereinafter the plaintiff in error will be referred to as the defendant, and the defendant in error as the plaintiff. The first assignment of error is that the trial court erred in overruling the defendant's motion to qua...
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This is an appeal from the superior court of Pottawatomie county. Plaintiff in error, Detroit Fidelity Surety Company, a corporation, was defendant, and defendant in error, C.W. Robbins, was plaintiff, in the trial court. The parties will be hereinafter referred to as plaintiff and defendant, as they appeared in the court below. Plaintiff was the recipient of an award of the Industrial Commission...
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This action originated before the county treasurer of Osage county. The tax ferret employed by that county caused to be instituted a proceeding before the county treasurer to place upon the tax rolls as omitted property, certain promissory notes belonging to S.G. Kennedy and W.A. Springer. These notes were alleged to have been subject to taxation in Osage county during the years 1917, 1918, and 19...
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This is an appeal from an order of the district court of Payne county sustaining a demurrer to the evidence offered in support of a writ of garnishment, and a judgment in favor of garnishee. The Hood Rubber Products Company, hereinafter referred to as plaintiff, on December 3, 1928, obtained a judgment against R.W. Dickey in the sum of $335.17, together with interest and costs. Four executions wer...
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In February of 1927, Wilson Brothers Refining Company and the Rock-Island Refining Company entered into a contract whereby the former agreed to sell and the latter to purchase 35 tank cars (8,000-gallon capacity) of gasoline at an agreed price of 7 1/2 cents per gallon, shipment to be made at approximately a car a day. This agreement was evidenced by written communications between the two companie...
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This is an appeal from an order of the district court of Garfield county, refusing to vacate its former order appointing a receiver for the properties of the Anglo-American Royalties Corporation pending litigation. The parties will be referred to as they appeared in the trial court, where Ida M. Brentnall was plaintiff and the Anglo-American Royalties Corporation was defendant. Upon filing suit th...
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This is an original action instituted in this court in which the petitioner, Southwestern Cotton Oil Company, seeks to vacate an order and award of the State Industrial Commission made and entered on May 22, 1933, in favor of the respondent, Ray Hall (claimant before the *Page 295 Commission). The parties will be referred to in this opinion as claimant and petitioner, respectively. On December 21...
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This is an appeal from an order confirming a sale of real estate made under order of sale issued in a proceeding to foreclose a real estate mortgage lien upon 80 acres of land in Muskogee county wherein plaintiff in error was plaintiff and Clara Hoffman and Clara Hoffman Wiebe, administratrix of the estate of Henry O. Hoffman, deceased, and the board of county commissioners of Muskogee county, Okl...
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The plaintiff in error, hereinafter referred to as. the defendant, was convicted of having possession of intoxicating liquor with the intent to. barter, sell, give away, and otherwise furnish to others, and sen *277 tenced to .pay a fine of $75, and to be imprisoned in the county jail for 30 days and pay the cost of the prosecution. From a reading of the record in this case we find in substan...
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This case is an appeal by the state from an order and judgment of the district court of Oklahoma county sustaining a motion of defendant to quash and set aside the information filed against him in that court upon the ground the evidence before the examining magistrate on preliminary examination was insufficient to show the crime charged had been committed. The information alleged defendant embezzl...
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Plaintiffs in error, hereinafter called defendants, were convicted in the district court of Haskell county of robbery with firearms, and were each sentenced to serve a term of five years in the state penitentiary. The facts are about as follows: John Townsend operated a mercantile store at Star, and resided with his wife and daughter in a room connected with his store building. On November 4', ...
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The plaintiffs in error, hereinafter referred to as the defendants, were convicted of having possession of one complete copper still, and were each sentenced to pay a fine of $150, and to be confined in the county jail for a period of 60 days, and both defendants appeal. The testimony on behalf of the state shows that Don Stone and other officers went to a house; the location and description being...
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The court below, of its own motion, dismissed the action on the ground that it had no jurisdiction because the plaintiff, a foreign corporation, had not complied with the statutory requirements to entitle it to sue in the Arizona courts. The plaintiff, the defendants and the cross-complainants have all appealed, except the Arizona Strip Hotel Corporation, Relf Hotel Corporation, and Louis A. Roser...
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This appeal involves the court's rulings or orders settling the accounts of the executors of the estate of Joseph Monihon, who died in Phoenix, Arizona, testate, on January 15, 1928, leaving surviving him his wife but no issue. He left separate property and also his one-half in the community. In his will he gave certain specific legacies to his wife and a number of his relatives and provided that ...
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This proceeding in certiorari is prosecuted by the Hartford Accident Indemnity Company, the insurance carrier, to review an award of compensation to Ernest E. Roberson for an injury *Page 51 sustained by him while working for the United Concrete Pipe Corporation. On April 29, 1931, while Roberson was cranking a gasoline motor, it kicked back, causing the crank handle to strike him across the mou...
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Charles Donofrio and Hannah Marguerite Donofrio, his wife, D.A. Donofrio and Clara Zunkle Donofrio, his wife, hereinafter called plaintiffs, brought suit against United Farmers' City Market, Inc., a corporation, hereinafter called defendant, to quiet title to certain real estate situated in Maricopa county, Arizona. Defendant answered, and, a demurrer to the answer having been sustained with leave...
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This is an appeal from an order and judgment dismissing plaintiff Abraham Ackerman's complaint upon motion by the defendants A. Kaufman, Anna Kaufman, his wife, and George Gray. The complaint was filed July 18, 1932, and was for an accounting. The grounds for the motion to dismiss were that the court had theretofore, on October *Page 93 17, 1931, in cause No. 13403, enjoined and restrained plaint...
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Abraham Ackerman commenced this suit against the Southern Arizona Bank Trust Company demanding an accounting of the defendant. The defendant's answer consists of a general denial. At the plaintiff's request a jury was called in to determine the facts. The verdict went against plaintiff and judgment was entered accordingly. The plaintiff has appealed. He presents his grievances by the following as...
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R.K. Couch and John Reid, by his guardian ad litem, C.C. Reid, each sued S.A. Gerrard Company upon separate causes of action for personal injuries sustained when the car in which they were riding ran into and against a GMC truck of defendant parked on public highway 66, about one and one-half miles east of Holbrook, Arizona, without any head or tail lights or other warning. The defendant's answer ...
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This is an appeal by Nellie Dustin, hereinafter called petitioner, from an order of the Industrial Commission of Arizona, hereinafter called the commission, denying petitioner's request for a rehearing of a certain order of the respondent, made on the thirteenth day of January, 1928. The undisputed facts of the case may be stated as follows: On the thirteenth day of February, 1927, Sidney Smith, a...
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E.L. Hamilton, hereinafter called plaintiff, brought suit against Gillespie Land Irrigation Company, a corporation, hereinafter called defendant, on two causes of action. Defendant answered and cross-complained. The case was tried to a jury, which returned verdicts on both of plaintiff's causes of action in his favor and on the cross-complaint in favor of defendant, and judgment was rendered in a...
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This is an appeal from the judgment of the district court of Creek county refusing to appoint a receiver for the Creek Realty Company, a corporation, being one of the defendants. The parties will be referred to as they appear in the trial court. It appears that the plaintiff, the state of Oklahoma ex rel. W.J. Barnett, Bank Commissioner, by and on behalf of the Drumright State Bank, an insolvent 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 59 THE COURT. Appeal from a judgment for the plaintiff in an action to recover damages for personal injuries sustained in a collision between two automobiles. The plaintiff was riding as a guest in the rear seat of an automobile driven by her brother, the def...
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This is an appeal from an order directing defendant to pay to respondent certain sums for temporary alimony, attorneys' fees and costs in a divorce action. On September 8, 1932, Ludwig Kadello received a decree of divorce from Alma Kadello in Reno, Nevada, upon the ground of desertion, the defendant being served personally in California. On October 7, 1932, Alma Kadello commenced a divorce action ...
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It appears that petitioner procured a final decree of divorce from her husband, Marshall Hilmer, on August 10, 1932. The custody of the minor child of the parties was awarded to her, and the father of the child was directed to pay $50 a month for the child's support. Contempt proceedings have been necessary from time to time to compel payment of this award. In March, 1933, petitioner moved the res...
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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 747 THE COURT. Two appeals by the plaintiff are presented. The first is from a judgment confirming the title of the parties in and to certain property adjacent to San Antonio Estuary in Oakland Harbor; and the second is from an order fixing the amount to be p...
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Action to quiet title. The suit was instituted by plaintiff to quiet title to a narrow strip of real property located on the north side of Geary Street between Kearny Street and Grant Avenue in San Francisco, having a frontage of 9 1/4 inches on Geary Street and a depth of 122 feet 6 inches. Defendant's answer contained the usual formal denials, and in addition contained a second count in the alte...
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By this appeal the controller of this state seeks to reverse an order of the superior court in the above-entitled estate. The order complained of reversed in toto a previous order fixing and requiring the payment of an inheritance tax under the Inheritance Tax Act of California (Deering's Gen. Laws, 1931, vol. 3, p. 4709, Act 8443), and further provided for refund of the tax theretofore paid. The ...
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This is an action to recover money paid under a contract after its rescission. Plaintiff on February 11, 1916, contracted to purchase from the predecessor of defendant company, two lots in a subdivision in Martinez, for $1,000, payable in installments. Plaintiff lived some distance away and had never seen the lots. The contract provided that during the life of the agreement the vendor should pay s...
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THE COURT. The question presented by this appeal is whether or not the trial court should have denied a motion to modify a previous order for alimony and support of a minor child in a divorce case. Certain accrued allowances for such purpose were not paid, and the court below further found that the only income of defendant was his monthly salary, which was less than the amount of the monthly allow...
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This is an appeal by the petitioner from a judgment of the superior court in a certiorari proceeding affirming an order of the municipal court denying a motion to quash an execution. In October, 1931, a judgment for $1117.35 was rendered in the Municipal Court of the City of Los Angeles against the petitioner and in favor of one Shane. In March, 1932, Shane filed an abstract of said judgment in th...
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THE COURT. Barney McCabe died in the city and county of San Francisco on October 21, 1931. On November 12, 1931, two documents were admitted to probate as the last will and testament of said decedent. On April 28, 1932, the State of California, through its attorney-general, filed a contest of said documents on the ground that they did not in fact constitute a will nor, if they did, were they execu...
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THE COURT. This is an appeal from a judgment decreeing specific performance of a contract for the purchase and sale of a parcel of real property, together with the improvements thereon. The plaintiff is the vendor and defendant W.K. Davis is the vendee. Judgment was rendered in favor of defendant Emelie Davis and, inasmuch as plaintiff does not appeal, her rights are no longer involved. The facts ...
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Action to recover damages for personal injuries received by plaintiff on June 11, 1929, about 11:40 P.M., as the result of a collision between the automobile in which she was riding as guest of defendant Pinney, and a city sprinkling truck driven by defendant Rivera. Defendant Rivera was driving the truck easterly on Seventh Street, Los Angeles. Defendant Pinney was driving westerly on said street...
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THE COURT. On and prior to December 7, 1929, Kirk H. Prindle was a licensed physician and surgeon of this state, practicing his profession in San Mateo County, and having an association with the Church of St. Matthew Mills Memorial Hospital and also with Dr. Chidester, medical superintendent and director of said hospital, which institution will hereafter be referred to as the hospital. Ann H. MacK...
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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 36 This is a proceeding in certiorari to review certain orders of the Superior Court of Santa Clara County entered in a proceeding brought by A.A. Trippel to obtain custody of his two minor children, a boy and girl, aged respectively twelve and ten years, iss...
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This action was instituted by the plaintiff against the City of Gilroy upon a claim assigned to him by Charles E. Sloan to recover for services as an engineer, alleged to have been performed by Sloan for said city in connection with certain street improvements which the City of Gilroy planned to construct in said city. There is no *Page 768 conflict in the evidence as to the rendition of the serv...
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The trial court made an order sustaining a demurrer to the plaintiff's second amended complaint without leave to amend. From the judgment entered thereon the plaintiff has appealed. The complaint contains two counts. In the first count, in effect, the plaintiff alleged that it is a Maryland corporation doing business in this state; that defendant district is a public corporation organized under th...
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This appeal was decided hy this court September 29, 1933, and subsequently respondent, against whom the decision went, complained in a petition for a rehearing that the opinion failed to mention important facts. Upon a more particular examination of the transcript we became convinced that respondent was correct in this and we granted a rehearing. *525 This case is for damages both compensator...
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This is an appeal on the judgment-roll alone from a judgment following a trial by the court sitting without a jury. While the appeal was pending in the Second Appellate District appellant was granted permission on motion for diminution of the record to file the reporter's transcript of the proceedings in the lower court. Such a transcript was filed, but it does not bear the certificate of 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 459 Plaintiff and defendant entered into a contract dated April 1, 1931, whereby plaintiff agreed to produce sand, gravel and rock at his plant near the town of San Juan Capistrano in Orange County, and make deliveries to defendant on defendant's trucks at th...
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In an action for attorneys' fees alleged to have been earned, judgment was rendered upon a verdict in favor of the plaintiffs, from which judgment the defendant appealed. At a stage of certain litigation theretofore commenced, the appellant in June, 1926, entered into a contract in writing employing the respondents to "attempt to enforce a contract for supplying water to his land in Ventura County...
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As the result of an attempt to ride upon a small device installed for the amusement of children, personal *Page 533 injuries were incurred for which the plaintiff instituted an action for damages. Findings of fact, conclusions of law and judgment were rendered in her favor, and the defendants appealed. [1] The complaint alleged that in a certain amusement resort to which general admission was cha...
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This is an action for damages for eviction brought by a lessee. Theo. K. Hill was the owner of certain premises consisting of a store and certain bakery equipment in the town of Anderson, Shasta County, California, where he had for some time carried on a bakery business. *Page 562 On June 1, 1931, he leased the premises and equipment to plaintiff for a period of two years from June 1, 1931, for $...
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Plaintiff instituted this action on July 19, 1928, seeking cancellation of a certain promissory note executed by him in the amount of $1250 and a trust deed covering real property in Riverside County which was given to secure payment of the note. Both instruments were dated April 18, 1928. The note was made payable one year after date. The payee named in the note was Charles H. Weygint. The ground...
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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 351 Appellant was very seriously injured when a wall bed in which he was sleeping collapsed. He brought his action to recover damages and has appealed from a judgment entered for respondents following the granting of their motions for nonsuit. He does not que...
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W.S. Hopkins, usually called Earl Hopkins, died on August 4, 1931, leaving a will executed on July 18, 1931, which was duly admitted to probate on August 21, 1931. On February 3, 1932, the contestant filed a petition asking that the probate of this will be revoked on three grounds, to wit: That the deceased was of unsound mind on the day the will was executed; that the will was procured by the und...
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This action was instituted by Donald Woodman, a minor, by his guardian ad litem, and by Rena Woodman, his mother, to recover damages sustained by them because of injuries to Donald resulting from the alleged negligence of all of the defendants. A verdict was returned and judgment rendered in favor of the Riverside County Council of Boy Scouts of America and the Troop Committee of Hemet Troop No. 4...
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[1] This is a motion by respondent to dismiss an appeal for the reason that the printed transcript of the record has not been served and filed within the time required by the provisions of section 1, Rule I, of the rules of this court. From the affidavit of respondent's counsel and from the certificate of the county clerk of Kern County made pursuant to Rule VI of the rules of this court, it appea...
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Plaintiff sued upon two separate policies of insurance issued by the defendant upon the life of one Adolpho Maggini. The first policy was dated May 9, 1932, and the second May 19, 1932. The insured died on June 18, 1932, his death resulting from bronchial pneumonia. Preliminary to the issuance of the policy the insured signed an application and a report of a medical examiner designated for that pu...
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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 425 [EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 426 On July 12, 1932, the plaintiffs instituted this action to recover from the defendants the sum of $2,100 repre...
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In this action, prosecuted by the plaintiff to obtain an interlocutory decree of divorce and an award of community property, the plaintiff had judgment granting the prayer of her complaint in so far as the marriage relation theretofore existing between the plaintiff and the defendant *Page 450 was dissolved, but in its decree the court found that there was no community property, and from this por...
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Husband and wife having died at approximately the same time, a controversy as to disposition of insurance moneys was determined in favor of the estate of the latter, from which judgment an appeal was perfected, the sole question involving the sufficiency of the evidence. [1] It appeared that both of the spouses were discovered in their home, each having expired as a result of gunshot wounds. The a...
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Plaintiff and the defendant entered into a written contract whereby the plaintiff agreed to drill a well for water on certain described land of the defendant, and the defendant agreed to pay therefor at a prescribed rate measured by the number of miner’s inches of water produced from the well. A well was drilled to the depth of approximately eight hundred forty feet, from which ninety inches of w...
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We contend that the law of most jurisdictions is that upon proof by plaintiff that the car causing the injury belonged to the defendant master and was being driven by one in his general *Page 167 employment, establishes by presumption a prima facie case for plaintiff that the car was being operated in the master's business at the time by the employee, and plaintiff is entitled to have the case su...
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Plaintiff and her seven associates had defaulted upon their obligation to pay to the defendant a promissory note in the sum of $50,000 and the real property covered by the deed of trust as security for the note was *Page 558 sold pursuant to the terms of the trust deed. Thereafter the defendant herein commenced an action against this plaintiff and her associates to recover the deficiency due afte...
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This is an action to recover on a policy of accident insurance. The demurrer interposed by the defendant insurance company to the second amended complaint was overruled and said company declined to answer; whereupon a default judgment was entered, from which the company appeals. [1] The points urged in support of the appeal are that it affirmatively appears from said complaint, to which a copy of ...
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Motion to dismiss appeal. From the record it appears that on August 3, 1933, a jury rendered a verdict in the above-entitled action in favor of plaintiff and against the defendant in the sum of $8,000 and costs. The action was one brought under the provisions of section 29 (b) of the Workmen's Compensation Act for damages for personal injuries and for attorneys' fees as provided for under the act....
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[1] Petition for mandate to compel respondent to issue execution on a judgment. The facts are stated in the opinion in Rosslow v. Janssen,ante, p. 467 [29 P.2d 287], this day decided. Upon the authority of that case the petition is denied. Knight, J., and Cashin, J., concurred. A petition for a rehearing of this cause was denied by the District Court of Appeal on February 28, 1934. *Page 788 [EDI...
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THE COURT. The plaintiff, who was the owner of lot 625 of Tract No. 6380, sometimes known as Beverly Vista, in Los Angeles County, applied to Howe Haun Investment Company, a corporation, for a loan of $5,000, to be secured by a deed of trust of the property, her purpose being to erect a dwelling thereon. A written application for a loan signed by her recited that the loan was to be used for said ...
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The plaintiffs have presented this alternative motion, under the provisions of Rule V, section 3, of the Rules for the Supreme Court and District Courts of Appeal, to dismiss the appeal or affirm the order granting a new trial after judgment had been rendered pursuant to the verdict of a jury which was returned in favor of the defendant. The motion is made on the ground that the *Page 418 appeal ...
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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 495 In this action the plaintiff seeks to enjoin the defendant from storing waters of the North Fork of the San Joaquin River other than in accordance with the terms of a certain contract entered into on June 14, 1909, between the predecessors of the plaintif...
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Appellant has moved for a diminution of the record on appeal, whereby he seeks to have incorporated in it a duly certified copy of his notice of appeal, and certified copies of various documents and account books by which he maintains it is shown that a jury trial was waived by the parties. [1] The notice of appeal is a necessary part of the record in order that this court may be enabled to assume...
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This is an appeal on the judgment-roll from a judgment in favor of the plaintiff in the sum of $2,333.57. Plaintiff asks us to modify the judgment and affirm it as modified. Defendant has filed no brief but his counsel appeared at the oral argument and stated that his client desired the reversal of the judgment which had been rendered against him. The complaint states a cause of action in the f...
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Defendant appeals from a judgment of conviction of the crime of conspiracy to commit burglary; also from each of three judgments of conviction of the crime of burglary in the second degree, as well as from an order by which his motion for a new trial, which related to each of such respective convictions, was denied. [1] It is first contended that "the corroborative testimony fails to connect the a...
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From a judgment based on the verdict of a jury awarding damages for personal injuries the defendant has appealed and has brought up typewritten transcripts. It makes several points, among others, that the record does not show the defendant was negligent, but that it does show the plaintiff was negligent and that he assumed the risk out of which the injury occurred. In its opening brief the defenda...
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This action was instituted by the assignee of a mortgage to foreclose the mortgage. The defendant, Pico Investment Company, a corporation, appeals from a decree of foreclosure. The mortgagees, James Hocking and Ella Hocking, had previously, and in a separate *Page 391 action, sought foreclosure of this mortgage. That action will be referred to as No. 194481. Prior to the assignment to the plainti...
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On October 31, 1930, respondent herein filed her complaint for divorce against appellant upon the ground of cruelty. In this complaint, among other things, she alleged "that plaintiff and defendant have entered into a property settlement agreement wherein and whereby they have made a division of all the community property belonging to them and said defendant has made provision for the payment of c...
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The plaintiff commenced an action to recover damages for breach of an alleged contract under the terms of which the defendant undertook to keep the plaintiff covered with compensation insurance. The defendant answered and the action was tried before the trial court sitting with a jury. The jury returned a verdict in favor of the plaintiff and from the judgment entered thereon the defendant has app...
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The defendant was convicted of murder of the first degree and sentenced to life imprisonment. He was charged with administering strychnine to his associate, Hanjiro Onishi. The case is based largely on circumstantial evidence. [1] It is contended the verdict is not supported by the evidence and that the court erred in admitting certain declarations which were made by Onishi just before his death o...
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Motion to dismiss appeal from decree restraining the defendant association from disqualifying or barring the plaintiff school from participating in interscholastic athletics. Upon a complaint wherein the trustees and principal of Covina Union High School alleged that their students had been excluded from certain athletics illegally and contrary to provisions of the constitution and rules of the de...
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In an action for commissions alleged to have accrued for services rendered under a contract to obtain an agreement to furnish to the defendant and appellant fifty carloads of oranges, the latter appealed from a judgment founded upon affirmative findings of fact. In the interest of economy of time and discussion a common ground of the parties may be stated as established. The plaintiff, a fruit bro...
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This appeal involves the interpretation of a trust clause of a will. Mary C. Hamon, the testatrix, died in September, 1927, survived by seven adult children, a son and six daughters, one of whom was Edith I. Brown, the wife of appellant. The will provided first that all real property belonging to the estate be sold. The testatrix then bequeathed to six of her children, not including Mrs. Brown, a ...
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Plaintiff sued on a written contract. The cause was tried before the court sitting without a jury and the plaintiff had judgment for $5,000, from which the defendant appeals on typewritten transcripts. Both parties to the agreement were motion picture producers. In the summer of 1929 negotiations were had concerning the purchase by the defendant of certain literary rights of the plaintiff. On O...
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This is an action by Margie R. Montgomery, to whom the cause of action was assigned by George E. Montgomery. It seeks recovery of $7,00-0 paid to First Mortgage Company as part of the purchase price of certain real estate and personal property. From a judgment for that amount, defendant has appealed. A “memorandum of agreement” dated April 28,1931, executed by appellant, therein called the...
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From a decree enjoining the state highway commission, its engineers and R.S. Conroy, from constructing a road to be used for highway purposes on a right of way donated for that purpose to the state by defendant Conroy, this appeal is prosecuted. The defendants, with the exception of defendant Conroy, demurred to the complaint, which was overruled, and, defendants electing to stand on the demurrer,...
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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 166 Certain creditors sued for a receiver of the bank. The state bank examiner, a defendant, answered and otherwise participated in the proceedings, requesting, among other things, that he be appointed as receiver. Receivers Cooper and Powell were appointed b...
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The important point is, what does "subject to the same procedure and requirements" mean in this statute? We have to inquire what the requirements and procedure is in the procuring of a divorce generally. The general law upon this subject is stated in sec. 9460 N.C.L. First, there must be jurisdiction of the court, and the elements of jurisdiction are stated in the act. There is one other element, ...
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In 1904, the Twin Falls Land and Water Company constructed over and across unclaimed, sage-brush land, as a part of an irrigation system in Twin Falls county, a lateral for the distribution of water for irrigation and other beneficial purposes. Shortly after the construction of the lateral a village government was established, and included within its limits a section of the lateral, and land on ea...
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This is an appeal from a judgment of the district court of Salt Lake county vacating and annulling a deed signed and acknowledged by Sadie B. Bennett, now deceased, purporting to convey to Josephine Fortune, also now deceased, certain premises, which deed the court found was never delivered, but was, after the death of Sadie B. Bennett, recorded in the office of the county recorder of Salt Lake 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 189 In the matter of the estate of Joseph Mannix, deceased. From an order and decree of the circuit court affirming an order and decree of a county court overruling the objections of N.E Harju to the final account of Mary E. Cox, formerly Mary E. Mannix, admi...
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PLAINTIFF in error, the Industrial Commission of Colorado, seeks to reverse a judgment of the district court which set aside an award of the Industrial Commission granting compensation to Joe Susman, the other plaintiff in error. On May 27, 1931, Susman filed his claim for compensation with the Industrial Commission, against the Phay Mining Company by whom he was employed at the time of the accide...
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THIS case is here under the Workmen's Compensation Act for summary review of a judgment rendered by the district court, affirming an award made by the Industrial Commission in favor of one Zak. The employer and its insurer, plaintiffs in error here, contend that the commission acted without and in excess of its powers, and that the findings of fact by the commission do not support the award. The o...
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The defendant, Brown Oil Company, a corporation, was engaged in the business of wholesale and retail handling and selling of gasoline and lubricating oils at Billings, Montana, where, as owner or lessee, it controlled a number of service stations. The defendant C.H. Brown, as president and manager, had direct charge of the business. *Page 149 In the spring of 1931, the above-named company leased ...
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The Silver Bow Motor Car Company, a corporation, and Melvin W. Wrenn, defendants, have appealed from a judgment in favor of the plaintiff, Jennie Evans, doing business as "The Yellow Cab Company," in an action for conversion. The indisputable history of the transactions out of which this action arose is as follows: Mrs. Jennie Evans ran a small taxicab business in Butte, in which, in December, 193...
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Respondents' first cause of action was in claim and delivery to recover the possession of personal property; their second cause of action was to foreclose their mortgage. An action in claim and delivery is one at law. (11 C.J., p. 418; Fredericks v. Tracy, 98 Cal. 658, 33 P. 750; Kansas City Hay Press Co. v. Williams, 51 Okla. 6, 151 P. 570.) The right to a trial by jury in an action at law is con...
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Joe Lukich and plaintiff, Sofia Lukich, citizens of the kingdom of Yugoslavia, intermarried in that country, and remained husband and wife up to the time of Joe Lukich's death. Sometime prior to *Page 222 1929, Joe Lukich came to the state of Washington, where, during the month of May, 1929, he was killed in an industrial accident while subject to the workmen's compensation act as then in effect....
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The plaintiffs brought this action on a promissory note executed by defendant, Kroll, doing business as Arthur H. Kroll Lumber Company. Kroll only was served, and he answered, admitting the execution of the note. By way of affirmative defense, however, he alleged that the note had been paid. He alleged that he had made an assignment for the benefit of creditors; that plaintiffs had agreed to the a...
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This case presents an appeal from a conviction of robbery. On Saturday, March 26, 1932, between 9:30 and 10:00 o'clock in the forenoon, a lone bandit executed a robbery *Page 350 at the office of the Railway Express Agency, a corporation, in Tacoma, securing $83.90 of the company's money. The robber proceeded according to the conventional form of engaging the employee and sole occupant in charge ...
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Three actions, involving different phases of what is essentially one controversy, were consolidated in the lower court for purposes of trial, and are so treated here upon appeal. July 22, 1931, Seattle School District No. 1 (hereafter referred to as the "district") and the United Fuel Company (hereafter referred to as "United") entered into an agreement by the terms of which the United agreed to s...
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James McDonald filed a petition in the superior court of King county in which he sought a writ of mandamus directed to the members of the board of county commissioners of that county requiring them to carry into effect the provisions of the old age pension act (chapter 29, Laws of 1933, p. 173, Rem. 1933 Sup., §§ 9998-1 – 9998-20). After the petition was filed, an alternative writ of mandate was i...
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October 21, 1931, plaintiff and defendants entered into a written contract, whereby plaintiff agreed to sell and defendants agreed to buy 100,500 shares of the stock of the Blass Oyster Company. The consideration agreed upon was the payment, to be made by defendants, of the sum of $160 per month "during the remainder of the natural life of the seller." The contract contained a forfeiture clause, r...
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H.L. Jones, accompanied by Mrs. Nettie Graves, a guest, was driving a Chrysler coupe toward Wenatchee on the main highway between that city and Seattle. When going up what is known as Stein hill, a short distance east of Dryden, the car driven by Jones collided with the rear of a truck standing on the highway, resulting in severe injuries to Mrs. Graves and less serious injuries to Jones. The truc...
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This is an action for damages for the wrongful death of plaintiff's adult son, resulting from a collision between decedent's motorcycle and the rear end of a wagon loaded with farm implements, being driven by the defendant Angels along a public highway in Merced County. The defendant bank held a chattel mortgage on the wagon *Page 94 and its contents. It was plaintiff's theory, in joining the ban...
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An award was made by the Industrial Accident Commission in favor of William H. Palms and against his employer, the Atascadero Mill & Lumber Company, and against the petitioner herein, the Employers’ Liability Assurance Corporation, and the Indemnity Insurance Company of North America, as insurance carriers of said employer. The Indemnity Insurance Company had issued to the employer a policy of ...
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This action was brought to foreclose a mechanic's lien upon the ranch of defendant Stewart, arising out of the construction by plaintiff of a rice elevator and, in connection therewith, of making additions to his barn. The contest is actually between plaintiff and the appellant bank, a subsequent encumbrancee of the ranch. The case was here on a former appeal from that part of the judgment only wh...
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This litigation revolves around a contract, between the parties, in the following words: "This agreement, made and entered into this 22nd day of March, 1927, by and between R. Lewis of the City of Madera, County of Madera, State of California, and Shell Company of California, a California Corporation. "That for the term, at the rental and upon the conditions, covenants and agreements hereinafter e...
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The actions entitled as above were commenced by the owners of different parcels of land in Reclamation District No. 784 to enjoin the defendant as Treasurer of the County of Yuba and as trustee of the Bond Fund of the Reclamation District from selling the property and issuing deeds by himself, as trustee, to purchasers after default by the plaintiffs in the payment of installments of assessment on...
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D efendant was found guilty by the court sitting without a jury on four counts of an indictment charging four separate violations of the Corporate Securities Act. This is an appeal from the judgments of conviction and the order denying defendant’s motion for new trials. Appellant urges that the evidence shows that he was the owner of the stock sold and fails to show that the transactions in q...
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Certain beneficiaries of a trust estate created by means of a final decree of distribution pursuant to the terms of a will have appealed from a judgment rendered in an equitable action directing the sale of real property contrary to the express prohibition of the trust. The question which is involved in this appeal is whether a court of equity may direct a sale of real property and authorize a rei...
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Plaintiff sought to recover damages for personal injuries sustained while working on the "Castle Town", a vessel owned and operated by defendant. The cause was tried by the court sitting without a jury and from a judgment in favor of defendant, plaintiff appeals. The cause was previously tried by the court sitting with a jury. That trial resulted in a judgment in favor of the defendant, which judg...
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In 1898 Will C. Crawford, husband of plaintiff, acquired title to five acres of land in Orange County. He died in 1912 and the property was distributed to his wife in the probate of his estate. C.B. Lewis was the owner of the property adjoining the Crawford land on the north. The title to the Lewis land passed through mesne conveyances to the defendants in 1931. From 1898 to 1931, the owners of th...
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This is an action to quiet title to two quarter-sections of land in what is known as the Kettleman Plains, being partly in the county of Kings and partly in the county of Fresno. The surrounding country is sparsely settled and this land, together with large tracts of land around it, has been used for many years only for the purpose of pasturing stock. Patents covering the two parcels were issued b...
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This is an appeal from an order modifying the conditions of probation theretofore granted appellant following her conviction on a charge of burglary. The following are the circumstances leading up to the making of the order: Appellant, a young married woman who lived part of the time with her husband in Redwood City, was caught burglarizing a department store on Mission Street in San Francisco....
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Plaintiff sued to recover damages for personal injuries. Upon a trial by jury plaintiff had judgment against defendants for the sum of $1500. A motion for new trial was made in the trial court and from the order granting said motion, plaintiff appeals. [1] The only point argued by appellant is that the trial court erred in granting a new trial on the ground of insufficiency of the evidence. The mo...
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On or about March 7, 1932, Frank Sudbrock, as plaintiff, instituted suit against Elizabeth Kroener, as defendant on a promissory note for $600, dated March 23, 1927, and due one year thereafter, to recover the principal sum thereof with interest. Elizabeth Kroener filed an answer and cross-complaint, by which cross-complaint she prayed judgment against *Page 626 plaintiff and cross-defendant for ...
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Plaintiff was injured when she slipped and fell in a steam room in the Berkeley Steam Baths, an institution owned and operated by defendant Reinberg. Upon the trial defendant's motion for nonsuit was granted at the close of plaintiff's case and from the judgment of nonsuit plaintiff appeals. Plaintiff and her friend, Mrs. Steinberg, were occasional patrons of said baths. The steam rooms, which adj...
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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 701 The evidence in this case discloses that a group of five hundred or more people, members of various organizations, journeyed in a motor caravan from the city of Los Angeles to the city of San Diego on May 30, 1933, for the purpose of meeting to protest ag...
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This action was brought to foreclose a mortgage given by appellants to secure the payment of a promissory note in the principal sum of $15,000, dated March 1, 1929, due five years after date, with interest at the rate of seven per cent per annum, payable semi-annually. Both the note and mortgage contained acceleration clauses operative upon default in the payment of any installment of interest. Th...
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On review of certain proceedings had before the Industrial Accident Commission, in essential particulars it appears that in the course of and arising out of his employment with the City of Pasadena, one Silka sustained certain injuries that disabled him for a period of several months, during which time he was paid compensation. More than one year after Silka was discharged as cured of his said inj...
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Plaintiff sued to recover damages for personal injuries. A motion for nonsuit was granted at the close of plaintiff's case and from the judgment of nonsuit plaintiff appeals. Plaintiff, a lessee of defendant, conducted a beauty shop on the mezzanine floor above defendant's market. Said market was located on the ground floor on the corner of Telegraph Avenue and Williams Street in the city of Oakla...
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THE COURT. This appeal of the defendants is from judgments of conviction against each of them, and from orders denying their motions for new trial. They were both convicted by verdicts of the jury on an indictment against them, including one charge of conspiracy, ten counts of grand theft, and six counts of violation of the Corporate Securities Act. The sufficiency of the evidence to sustain the j...
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From a judgment rendered pursuant to trial upon a petition for a writ of mandamus, directing that the respondent be restored to duty upon the police department of the city of Los Angeles and that he be paid accrued salary from the date of his alleged attempted suspension therefrom, the board of police commissioners of said city has appealed. By this petition the respondent alleged and the trial 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 677 Defendant was charged in an amended information, containing five counts, with five separate offenses of forgery (fictitious name) and with two prior convictions, one in California and the other in New York. He admitted the prior conviction in California, ...
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This is an original proceeding wherein Victor Anson Redewill, hereinafter called petitioner, seeks a writ of prohibition against the superior court of Maricopa county and the Honorable M.T. PHELPS as judge thereof, restraining said judge from the pronouncing of sentence in criminal cause No. 10171, now pending against petitioner in that court. The facts are not in dispute and may be stated as foll...
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This is an original proceeding in disbarment. The record shows that one U. S. Kay, of Tucson, Arizona, made complaint against Otto E. Myrland, hereinafter called respondent, an attorney of that city, charging him with unethical conduct in' regard to a case which Myrland had handled for Kay. A grievance committee of the state bar association investigated the complaint and recommended that disbarme...
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This is an action brought by Clara A. Baker, as plaintiff, against the defendant A. A. Spaugh, on a promissory note of $2520.00, dated February 21, 1930, payable two years after date. Judgment was rendered for the plaintiff, and the defendant has appealed. The defendant in his answer admitted the execution of the note, but claimed that it was without consideration. He also alleged, as a counter...
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From a judgment in replevin awarding to appellees the possession of 91 sacks of C.R.C. Pinto beans, the appellant prosecutes this appeal. The appellant was substituted as defendant for the Mountainair Trading Company, the original defendant, who was in possession of the beans when the action was commenced, in the manner provided by Laws 1931, c. 156. The appellant filed an answer and cross-complai...
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In July, 1925, Albina Casna became possessed of six lots under an executory contract to purchase from Gallup Townsite Company. *Page 184 She proceeded to erect a residence thereon and in the main paid the cost thereof. In July, 1926, she arranged with George Bubany to furnish materials and labor for the erection of a dance pavilion and to secure him by mortgage on the property. The pavilion havin...
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This is a proceeding as to the exact nature of which counsel differ. For purposes of this appeal we shall take it to be, as appellees claim it is, an insolvency proceeding, seeking an adjudication against Reserve Oil Company, a New Mexico corporation, an injunction against continuance of its business, and a receivership. Plaintiffs are the owners of something more than one-third of the 300,000 out...
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This is an action by appellants, against respondents, for damages for breach of contract to do assessment work on a group of nine mining claims and to drive a tunnel therein. A copy of the contract was attached to the complaint and, by reference, made a part thereof. Respondents demurred to the complaint, on the ground that it did not state facts sufficient to constitute a cause of action. The de...
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Maude Flora, the appellant, filed a petition in the district court of Weber county, Utah, for a writ of habeas corpus against the respondents, A.B. Flora and Grace Flora, to obtain the custody of her minor children Edith Flora and Sylvia Flora, of the ages of 13 and 15 years, respectively, alleging that said children were being unlawfully restrained of their liberty by the respondents. The writ wa...
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A.B. Flora filed his petition in the district court of Weber county, Utah, requesting the court to appoint him guardian of the person of Sylvia Flora and Edith Flora, minors, of the ages of 15 and 13 years, respectively. He asserts that *Page 147 he is their uncle and that they now reside with him at 3208 Washington avenue, Ogden, Utah, and that he now has the custody of said minors. He also alle...
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Considering the legislative history as established by legislative action in this state, we submit it is clearly disclosed that by enacting the banking law of 1911 and the banking law of 1933 it was the intention of the legislature to place the liquidation of banks exclusively under the supervision of the state superintendent of banks, and the court was divested of any authority to interfere by or ...
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Action by the State against Edward O. Lessard and another. From a judgment of dismissal, plaintiff appeals. REVERSED. This is an action for the possession of personal property. The plaintiff alleges in its complaint and amended complaint, in substance, in addition to the formal allegations, that the state of Oregon, between and including the 12th and 24th days of October, 1931, was the owner of a ...
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IN BANC. Action by Sam Logan against the Equitable Trust Company, a corporation, and others, wherein the Equitable Trust Company and George B. Guthrie, receiver for Equitable Trust Company, prayed for a decree permanently enjoining plaintiff from prosecuting any action at law on account of matters complained of in his amended complaint and for other relief. From a decree, named defendants appeal. ...
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Action by John Mathers against Wentworth Irwin, Inc., to recover damages for the conversion of a motor truck and a trailer on September 19, 1932. From a judgment for plaintiff, defendant appeals. AFFIRMED. REHEARING DENIED. On May 20, 1931, the defendant sold to the plaintiff on a conditional sales contract a motor truck for the sum of $3,789. A payment of $1,157 was *Page 669 credited on the pu...
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Action by D.V. Walter against Beatrice Turtle. From a judgment in favor of the plaintiff, the defendant appeals. AFFIRMED. *Page 2 This is an action for personal injuries. The conceded facts are about as follows: The Oregon State College operates three farm experimental stations within a radius of seven or eight miles of Corvallis. These stations were furnished with the usual equipment found on a...
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In Banc. DEFENDANT DISBARRED. This is a disbarment proceeding in which the defendant, an attorney duly admitted to practice in this court, is accused by the proper committee of the bar association, of unprofessional conduct, which, in effect, consists of obtaining money by fraud and willful deceit. The particular charges, set up in the complaint, will appear in the findings of fact, hereinafter se...
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In Banc. Action by R.C. Buck against the Ice Delivery Company, a corporation, for damages to plaintiff's ambulance caused by a collision with defendant's truck. Judgment for plaintiff, and defendant appeals. REVERSED AND REMANDED. On February 29, 1931, plaintiff's ambulance was on an emergency call and being driven south on 25th street in Portland, Oregon. Defendant's ice truck was being operated ...
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This is a suit for divorce. On January 10, 1932, plaintiff filed a complaint in which it was alleged, in substance, that plaintiff and defendant intermarried on November 17, 1926, and both have ever since been residents of the state of Oregon. The issue of the marriage is a son, Bichard Cranston Bach, born May 18,1928; quarrels, grief and heartaches, finally ending in a separation. Plaintiff fu...
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The pleadings of the plaintiffs aver: "At no time did defendant inform plaintiffs or either of them that they would be held to the strict terms of said conditional sales contract or that defendant would elect to repossess the said personal property or terminate the said contract, and defendant repeatedly informed plaintiffs that defendant would be satisfied with and would accept payments from time...
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Action by Phillip Suetter against A.E. Kern Co., and others. Judgment for defendants on the pleadings, and plaintiff appeals. MODIFIED. This is an action for willful and malicious eviction. On January 14, 1933, plaintiff filed his original complaint which was superseded by an amended complaint filed on March 15, 1933, in which he alleges that on January 5, 1933, he was in the possession and entit...
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In Banc. Suit by Frank A. Heitkemper against R.W. Schmeer and wife and others. From a decree in favor of the plaintiff, the defendants appeal, and the plaintiff cross-appeals. MODIFIED. REHEARING DENIED. This suit was commenced to enjoin the violation of an alleged covenant in a trust agreement against the erection of an apartment house in a residential district. It arose under the following facts...
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Action by Belle Burrowes against H.M. Skibbe. Judgment for plaintiff, and defendant appeals. AFFIRMED. This is an action to recover damages for personal injuries resulting from an automobile accident. The cause was submitted to a jury and a *Page 124 verdict returned in favor of plaintiff for $8,000. From a judgment based thereon the defendant appeals. Defendant asserts error in the overruling of...
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In Banc. Action by Paul Folquet, Jr., as executor of the estate of Paul Folquet, Sr., against the Woodburn Public Schools, operating under the name of School District 103, a public corporation, and others. Judgment of dismissal, and plaintiff appeals. AFFIRMED. This appeal is from a judgment sustaining a demurrer to the complaint and dismissing the action. The action was brought by plaintiff as ad...
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In Banc. Action by L.H. Hoffman against the Employer's Liability Assurance Corporation, Limited. Judgment for plaintiff, and defendant appeals. AFFIRMED. This is an appeal from a judgment in favor of the plaintiff. The action was brought to recover on a policy of indemnity insurance issued by *Page 68 the defendant to plaintiff. Except as otherwise provided therein, the policy covers "bodily inju...
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In Banc. Suit by the City of Klamath Falls, a municipal corporation, against the Oregon Liquor Control Commission and members thereof. From a decree dismissing plaintiff's complaint, plaintiff appeals. AFFIRMED. This is a suit to enjoin the defendant officials from enforcing chapter 17, Laws of Oregon for 1933 (2d Sp. Sess.), known as the "Oregon Liquor Control Act", on the ground that it is uncon...
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This is an appeal from an order and award of the State Industrial Commission made on December 28, 1932. The Commission found that respondent was in the employ of petitioner and engaged in a hazardous occupation as defined by the Workmen's Compensation Law; that the respondent, on October 19, 1932, while in such employment received an accidental personal injury, the nature of said injury being a st...
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This is a proceeding in mandamus commenced before the district judge of Okmulgee county prior to the holding of a certain school election on Tuesday April 4, 1933, in the city of Okmulgee, independent, school district No. 1, embracing the city of Okmulgee. The applicants, having been denied the right to vote in said election, applied to the judge for an order requiring the precinct officers of the...
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Nona Elsie Everett, as plaintiff, filed suit against the Missouri State Life Insurance Company seeking to recover upon an accident policy executed by defendant company covering the life of her husband, William T. Everett. Everett died April 4, 1929, and upon defendant's failure to pay said policy plaintiff filed the suit at bar, basing the same upon the insurance policy issued by defendant. Defend...
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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 Midland Valley Railroad Company as to a certain tax levy made by the excise board of Le Flore county for the sinking fund of school district No. 26 for the fiscal year ending June 30, 1933. The record shows that 13.77 mills of the 28 mills levied was for interest and accrual on a judgment that...
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This is an original proceeding filed in this court in the name of the state of Oklahoma by the Attorney General, upon the direction and on relation of the Governor of the state of Oklahoma, against Mark L. Bozarth, judge of the Twenty-Second judicial district of the state of Oklahoma, for an order, under the superintending control of this court over inferior courts and tribunals, mentioned in sect...
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Branion Williams, plaintiff, instituted suit against L.G. Hulls and the Cushing Refining Gasoline Company, defendants, seeking to recover for personal injury received by plaintiff. Parties will be referred to as they appeared below. Defendant Cushing Refining Gasoline Company had a gasoline plant in Seminole county, Okla. Connected to said gasoline plant was a pipe line through which gasoline wa...
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This is an original action in this court to review an award of the State Industrial Commission in favor of J.B. Neal and against the Barnsdall Refineries. The record shows that on January 6, 1927, claimant was in the employ of petitioner, and while returning from work, a truck, in which he was riding with other employees, overturned and claimant was thrown out of the truck and landed on his neck a...
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The plaintiff in error appealed to this court from a judgment of the Court of Tax Review denying a part of its protest of taxes levied for the fiscal year commencing July 1, 1932. The appeal from the judgment as to item numbered 2 thereof was voluntarily dismissed, *Page 327 and the judgment of the Court of Tax Review thereon is final. Item numbered 1 of the protest pertaining to a part of the ge...
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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 against certain tax levies made by the excise board of Pottawatomie county, Okla., for the fiscal year commencing July 1, 1932. The first item involves an appropriation for the county separate school fund, in which was included an appropriation for...
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The controlling issues in this case were determined by the decisions of this court in cause numbered 25073, Thomas A. Edwards et al. v. F.C. Carter, State Auditor, et al., promulgated on November 7, 1933, and January 30, 1934,167 Okla. 282, 287, 29 P.2d 605, 610. The rules of law therein stated are applied herein. The judgment of the trial court is affirmed....
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This proceeding involves the disbarment of J.E. Fleming, a member of the State Bar of Oklahoma, referred to as respondent herein, by reason of the fact that he had been disbarred from the practice of law by the Supreme Court of the state of New Mexico on August 26, 1927. It appears that respondent was admitted to the practice of law by the United States District Court for the Southern District of ...
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This action was commenced by defendant in error, William Reinheimer, for the recovery of damages in the sum of $5,000. His claim in substance is that, in 1925, by oral agreement he rented the ground floor of a three-story brick building in Chickasha from defendant at an agreed rent in which plaintiff conducted a general mercantile business, and that he had occupied said room since said time; that ...
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The Board of Governors of the State Bar of Oklahoma have recommended to this court that C.T. Rice, a member of the State Bar of this state, referred to as respondent herein, be suspended from the practice of law in the state of Oklahoma for a period of 90 days, by reason of two charges filed against him by Hardin Ballard, an attorney at law. The first charge relates to respondent appearing without...
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Florence Mumaugh sued E. Robitaille, administrator of the estate of Alfred Mudeater, deceased, in the district court of Ottawa county on a claim for services rendered to the deceased, Alfred Mudeater, as housekeeper and nurse. The trial court rendered judgment for plaintiff in the sum of $270, and defendant has appealed. The parties will be referred to as they appeared in the trial court. Defendan...
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This is an appeal by the defendant from a judgment rendered againsl it in favor of the plaintiff. The cause is submitted to this court for determination of one proposition, as follows ; “The court erred in submitting to the jury the question of whether or not there was a decline in the market from March 28th to March 29th, for the reason that there was no evidence to support plaintiff’s claim...
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This is an appeal from the district court of Sequoyah county from an order of said court sustaining a motion to dissolve a temporary restraining order. It appears that the First National Bank of Vian, Okla., hereinafter referred to as defendant, held two chattel mortgages signed by W.C. Pickens, C.E. Pickens, and Burge Hoyle, hereinafter referred to as plaintiffs. Said chattel mortgage covered cer...
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In this action, Honorable Wm. H. Murray, Governor of the state of Oklahoma, appearing pursuant to the provisions of section 3527, O. S. 1931, has, through counsel, filed herein a suggestion that the Justices of this court are disqualified to hear and determine the questions of law and fact herein, and has requested that they disqualify. The court deems it proper to determine this preliminary issue...
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Heretofore, Honorable William H. Murray, Governor of the state of Oklahoma, was permitted, pursuant to section 3527, O. S. 1931, to intervene as such official in the above cause. The petitioners have filed a motion to dismiss the petition in intervention filed by the Governor by reason of a certain article appearing over the signature of the said Honorable William H. Murray in a newspaper controll...
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This is an original proceeding in this court in which the petitioners pray for a writ of mandamus requiring the State Auditor to allow their salary claims in the sum of $625 each month, and requiring the State Treasurer to pay said warrants or indorse thereon proper notation, as by law provided, for the allowance of interest. The allegations of the petitioners are that at the time of their electio...
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This case involves assessment for taxation by a tax ferret of public service corporation property. This proceeding was instituted by T.E. Neal, tax ferret, before the county treasurer of Creek county, alleging that the Oklahoma Union Railway Company, a corporation, had omitted certain personal property from taxation in said county for the years 1929 and 1930, said property being described on the r...
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A.W. Gage, the claimant received an accidental personal injury on February 12, 1930, while employed by the Skelly Oil Company, called petitioner. The nature and extent of the injury was described in the first report as: "Scalp wound, left side of chest bruised and right knee injured." The parties filed an agreement of settlement in which the injury was described as aforesaid. Based upon this agree...
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This action was commenced by J.H. Brown, tax ferret, before the county treasurer of Payne county, and a decision of the county treasurer ordering the assessment against plaintiff in error of certain omitted property was appealed to the county court of Payne county in the time and manner required by law. The county court sustained the action of the county treasurer, from which an appeal is taken to...
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This is an original proceeding in this court by James I. Barnes Construction Company and its insurance carrier, the Commercial Casualty Company, petitioners, to review an award of the State Industrial Commission made and entered on July 27, 1933, in favor of C.C. Hargrove, claimant herein. Said award, in its material parts, reads as follows: "(1) That on the 19th day of July, 1932, claimant was in...
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This action was commenced in the district court of Seminole county, Okla., by Annie King, hereinafter called plaintiff, against M. A. Beall et al., hereinafter referred to as defendants, to quiet title, to recover possession and recover judgment for oil and gas alleged to have been produced from the south half (S. 1/2) of the northwest quarter (N.W. 1/4) of section 22, township 10 north, range 8 e...
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THESE parties appeared in reverse order in the trial court. The fact that defendant in error was, as to a portion of its claim, an assignee, and the reason for the appearance of Continental Food Stores, Inc. as a party, are immaterial here. For convenience we refer to plaintiffs in error as P-W and to defendant in error as Lowell. Alleging that it had sold canned goods to P-W which the latter had ...
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ARTHUR Doak brought mandamus against Hertz Drive-Ur-Self System, Inc., of Colorado, a corporation, L. K. Brown and Jean F. Brown to compel the transfer to plaintiff of 625 shares of the capital stock of the above corporation. Respondents prosecute error to review a judgment in favor of Doak, the petitioner, and apply for a supersedeas. L. K. Brown was president and Jean F. Brown secretary of the c...
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THE parties appear herein in the same order as in the court below. Case No. 13045 was consolidated with case No. 13046. The two actions were tried together and are so considered here. They involve ditch and water rights under an early decree on the Huerfano river in Huerfano county, Colorado. Plaintiffs in case No. 13045 are the owners of 120 acres of land particularly described in their complaint...
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MARTIN Eder, for many years and at the time of his death a resident of Otero county, died September 5, 1928. September 27, 1928, H. W. Fox was appointed administrator of Eder's estate, apparently on theory of intestacy. April 8, 1929, three of the individual defendants in error, averring that they were the duly authorized representatives of the several churches, also defendants in error, filed a p...
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MRS. Elizabeth Peer filed a claim with the Industrial Commission against her employer, Peter Zurawski, one of the defendants in error, for compensation and medical benefits under the Workmen's Compensation Act. Her claim was denied, she appealed to the district court with *Page 228 the result that the findings, judgment and award of the commission were approved and affirmed. She now assigns error...
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THE parties will be referred to herein as the coal company, the insurance company, the commission and the claimant. This is an action to review a judgment of the district court in affirming a supplemental award for additional compensation made by the commission upon a review had on its own motion. It will be unnecessary to state all the *Page 212 facts leading up to this supplemental award, as th...
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[1, 2] THE judgment brought here by the state of Colorado for review is one rendered by the district court of Montrose county. It purports to construe the last will and testament of one Kwatkowski, deceased, which reads as follows: "I bequeath to Herbert E. Canfield and Mary E. Canfield, jointly and severally, all of my real and personal property, consisting of the East one-half, of the Northwest ...
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PLAINTIFF in error is hereinafter referred to as Fisher, *Page 219 defendant in error as the Power Company, the Acme Sand and Gravel Company as the Gravel Company, one Gerald v. Stack as Stack, and one A. J. Collins as Collins. The Power Company sued Fisher and Stack, as copartners doing business as the Gravel Company, for a balance of approximately $900 and interest, due on open account for elec...
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This is an appeal from an order denying the motion of the East Chicago Oil Association, Inc., for an execution against the Northern Natural Gas Development Company. The execution was sought to enforce a judgment entered upon a remittitur issued by this court in the case of Nepstad v. East Chicago *Page 185 Oil Assn., 91 Mont. 366, 9 P.2d 1074. A more complete statement of the facts out of which th...
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Citing to the point that there was a fatal variance or failure of proof: Sec. 9185, Rev. Codes 1921; McCrimmon v. Murray,43 Mont. 457, 117 P. 73; Spellman v. Rhode, 33 Mont. 21,81 P. 395; Gilliam v. Black, 16 Mont. 217, 40 P. 303;American Livestock Loan Co. v. Great Northern Ry. Co.,48 Mont. 495, 138 P. 1102; Kalispell Liquor Tobacco Co. v.McGovern, 33 Mont. 394, 84 P. 709; Chealey v. Purdy,54 M...
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Plaintiff instituted this proceeding in an attempt to secure compensation under the Workmen's Compensation Act. He was employed by the defendant on June 14, 1929, the date on which he asserts an injury was sustained entitling him to compensation. He continued working for the defendant for a few days after that date. Thereafter he was a patient in the tuberculosis sanitarium at Galen from October 1...
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Citing: Trull v. City of Lowell, 245 Mass. 45,139 N.E. 434; Farmers' Elevator Livestock Co. v. Satre,196 Iowa, 1076, 195 N.W. 1011; Wertz v. Hale, (Iowa) 229 N.W. 215;Gordon v. Brewer, 32 Ohio App. 199, 166 N.E. 915; FirstState Bank of Perkins v. Pulliam, 112 Okla. 22, 239 P. 595;Eastern Mfg. Co. v. Thomas, 82 S.C. 509, 64 S.E. 401;Conlin v. Trager, 84 Cal. App. 730, 258 P. 433; CrownLaundry Cle...
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Plaintiff brought this action to foreclose a real estate mortgage. In his complaint he alleged the execution and delivery of ten promissory notes dated July 28, 1916, by the defendants Evans, husband and wife, to the defendant Anderson; each of these notes was for the sum of $920, one of them maturing on the twenty-sixth day of July of each of the years 1917 to 1926, both inclusive; that five of t...
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Under the rule stated in State ex rel. Coffey v. DistrictCourt, 74 Mont. 355, 240 P. 667, an execution sale should be set *Page 214 aside where irregularities in the sale proceedings appear and in which the property has manifestly been sacrificed or any other serious wrong has resulted to anyone from the sale, in which instances the court will clearly seize upon any irregularity, and perhaps magn...
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The special election was illegal for the reason that no sufficient notice was given, in that the notice failed to state the amount of the indebtedness in excess of the three per cent. limitation which it was proposed to incur. The notice in the case at bar states that the question of the issuance of $200,000 of bonds for the purpose of securing a water supply and constructing a water system for th...
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This is an appeal from a judgment of the superior court sustaining the ruling of the department of labor and industries denying relief, and dismissing plaintiff's appeal from an order of the joint board. It appears that, in February, 1927, while in the course of extrahazardous employment, the appellant sustained an injury for which he claimed compensation. The department allowed his claim, which w...
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Acting under the Co-operative Marketing Act, chap. 115, Laws of 1921, p. 357, Rem. Rev. Stat., § 2878 et seq., the Olympia Milk Producers Association was incorporated in July, 1932, by a number of Thurston county dairymen. Appellant Ben Herman, acting on behalf of the community composed of himself and his wife, entered into a written contract with the association covering the milk and cream to be ...
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BEALS, C.J., dissents. January 26, 1931, plaintiff, while working as a hook tender in a logging operation, sustained injuries which will be hereinafter more specifically described. He received hospital care, medical attention and compensation for time lost, under the workmen's compensation act, until July 26, 1931. As of that date, the department of labor and industries, believing plaintiff's cond...
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During the course of the evening of December 17, 1931, Mrs. Gina Braseth, while crossing Fifth street, between Pacific and Park avenues, in the city of Bremerton, was struck and mortally wounded by an automobile driven by defendant Alice Farrell. As the result of the accident, several of Mrs. Braseth's ribs were broken, one of the fragments penetrating her lungs, from the effect of which she died ...
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This action was one in unlawful detainer, brought for the purpose of obtaining possession of two lots in the city of Tacoma. In the action as originally brought, one H.J. Noonan was named as the only defendant. Subsequently, John W. Feak intervened. To the amended complaint in intervention, a demurrer was interposed and sustained, and, the intervener not having pleaded further within the time spec...
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BEALS, C.J., TOLMAN, and HOLCOMB, JJ., dissent. This is an action in replevin, brought to recover possession of an automobile held by defendant. From a judgment entered on findings favorable to defendant, plaintiff appeals. On March 23, 1931, and for some eight or ten months prior thereto, Elmer Daggett was employed as a salesman by Yakima Automobile Company. On that date, the company sold him a s...
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In its complaint containing three causes of action, plaintiff sought to recover for quantities of building material furnished and delivered by it to defendant. The answer of the defendant contained certain denials; then, by way of an affirmative defense, pleaded an offset and counterclaim, and concluded with a cross-complaint setting forth a series of *Page 417 five separate causes of action agai...
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This action was brought by the state of Washington to recover from the defendant Vinther an amount equal to the liability imposed upon the accident fund of the state under the workmen's compensation act for the death of Valentine J. McNaught Davis. The complaint alleged that Vinther, by the negligent operation of an automobile on the streets of the city of Spokane, caused the death of Davis, then ...
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— This is an appeal from a judgment of contempt, resulting in a fine of three hundred dollars being assessed against each of the persons charged. The main action out of which the contempt proceeding arose was instituted by respondent to foreclose a *411 chattel mortgage upon certain laundry equipment and for the appointment of a receiver of the business of the mortgagor, the above-named defen...
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This action was brought by a former civil service employee of the city of Tacoma for the determination of his rights to a particular position and for the recovery of the compensation attached thereto. In the complaint, there were two causes of action, separately stated. The trial was to the court without a jury, and resulted in findings of fact from which it was concluded that the plaintiff was en...
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This is an appeal by the administratrix and her surety from an order requiring them to pay forthwith a claim for funeral expenses in the sum of three hundred dollars. It appears that, on October 4, 1929, appellant Nellie Robison was duly appointed as adminstratrix of the estate of the deceased Nellie M. Robison, and thereafter duly qualified, with the appellant surety company as surety upon her of...
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Plaintiff was appointed receiver of White Finance Corporation in March, 1932. He brought this action to recover on account of certain alleged preferences. Granting a motion for nonsuit, *Page 447 the court entered judgment dismissing the action, from which plaintiff appeals. For several years prior to November 18, 1930, the company had been engaged in the salary loan business. C.B. White was its ...
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THE Honorable Senate of the 29th General Assembly regularly convened in its second extraordinary session has, under date of January 19, 1934, by Senate *Page 216 Resolution No. 5, submitted to this court certain interrogatories concerning the constitutionality of a portion of House Bill No. 45. Said interrogatories are propounded under authority of section 3 of article VI of the Constitution whic...
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DEFENDANTS in error are hereinafter referred to as Dollard and Stokes respectively, and plaintiff in error, who is the wife of the latter, as Mrs. Stokes. Dollard sued Stokes for a dissolution of their partnership in a mining venture. Mrs. Stokes therein filed her petition in intervention. Dollard demurred generally thereto and that demurrer was sustained. Mrs. Stokes stood, and moved for a stay o...
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THIS case presents an unusual state of facts. As counsel for the defendant in error Plumb in their briefs say that the statement of the case as set forth by counsel for the plaintiff in error Black, is substantially correct, we reproduce it as a sufficient outline of the facts to which the pertinent principles of law are to be applied. In April, 1931, plaintiff below, defendant in error here, Fran...
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THE parties will be referred to as the association, Watson and Harris. Watson was plaintiff in the trial court wherein she filed her complaint, as amended, against Harris and the association to cancel a deed, and release deed of trust. Watson was the owner of an improved lot and one-half situated in the City and County of Denver. On May 20, 1929, at her place of business, a restaurant, she had a c...
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THE First National Bank of Fort Collins sued R. T. Poor, Don W. Poor and Sam C. Poor on a promissory note for $2,500. The plaintiff sued out a writ of attachment, which was levied upon certain live stock and farming equipment, the property of the defendants. The ground for attachment stated in the affidavit was, "That the defendants have fraudulently transferred or assigned their property or effec...
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This suit was commenced by Ackerson against Townsend and wife to foreclose a *Page 192 deed of trust given by defendants Townsend to plaintiff's assignor, covering lot 1, block 59, Terrace addition, Albuquerque, as designated on the plat of that addition filed May 24, 1928. Albuquerque Lumber Company intervened, claiming a materialman's lien. From a judgment recognizing such lien and giving it pr...
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This is a complaint by the state, on the relation of the Attorney General, for an injunction against A.T. Smith to enjoin and restrain him from practicing medicine and surgery without first having obtained a license to do so. The trial court was of the opinion that the facts stated in the complaint were not sufficient to authorize the interposition of equity and for that reason sustained defendant...
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Appellant has moved to strike from the filed transcript numerous matters of record which were included on a supplemental praecipe by appellee. The grounds of the motion are that appellant, desiring to have a single question reviewed, set it forth in his praecipe, and called for such portions of the record as he deemed necessary to such review; that the additional portions of the record called for ...
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This case is before us on motion for rehearing. We deem it convenient to withdraw the opinion heretofore handed down and to substitute the one to follow therefor. Plaintiff (appellee before us) sued in the district court of Rio Arriba county to quiet title to a portion of the Juan Jose Lobato land grant located in said county, naming innumerable defendants including the *Page 213 owners of the Po...
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Genaro Fourzan and H.S. Stephenson, as trustees, hereinafter called plaintiffs, brought suit against Earnest A. Curtis and Frances E. Curtis, his wife, hereinafter called defendants, to enjoin the latter from interfering with a certain pipeline and water improvements belonging to plaintiffs, and with their free and uninterrupted use of certain water, and for damages for the previous destruction of...
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The appellant J.J. Wesley in 1923 leased from the state of Arizona 244 acres of common school land, being part of section 16, township 1 south, range 4 east. Subsequently the same land was leased to him and appellant W.J. Burns. They cleared, leveled and cultivated the land under renewal of leases until and including 1930. In March, 1929, the state land commissioner received an application to purc...
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Albert B. Carr, hereinafter called plaintiff, brought suit against Ivy A. Florian, doing business under the name of Barker Bakery, hereinafter called defendant, for damages which plaintiff alleged he had received as the result of a collision between an automobile in which he was riding and one operated by an employee of defendant. The case was tried to a jury, which returned a verdict in favor of ...
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The appellants, as plaintiffs below, sued the appellee in the district court of Socorro county basing their cause of action upon the following state of facts, to wit: A certain check of Crown Milling Company of Socorro, payable to the order of one J.B. Kelly in the sum of $515, duly indorsed by him to the order of county treasurer, was delivered to one A.G. Whittier as delinquent tax collector of ...
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The appellee, the National Cash Register Company, commenced this action to recover of A.A. Castaneda, assignee, a cash register, or an *Page 120 unpaid balance thereon of $315. The register was sold by it on March 17, 1931, to the Tucson Shoe Company under a conditional sales contract by the terms of which it retained ownership and title until the register was fully paid for. On August 4, 1932, t...
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The state tax commission appeals from a judgment of the superior court of Yavapai County denying its application for a writ of mandamus requiring the board of supervisors of that county in their capacity as a board of equalization to comply with an order issued by the plaintiff directing it to raise the valuation of the mining claims of the United Verde Copper Company for the year 1933. The altern...
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This action was begun by appellant as an equitable action for the foreclosure of a mortgage. By their cross-complaint, respondents alleged that the land sold to them was represented to contain twenty-four and one-half acres and that the purchase price was five hundred dollars per acre, asked that the action be dismissed, that the note and mortgage be held to have been fully paid, that the cloud of...
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— The respondent was injured on November 17, 1931, while engaged in extrahazardous employment. The department, after paying time loss up to July 8, 1932, closed his claim with an award of ten degrees, or three hundred dollars, for permanent partial disability. The claimant appealed to the joint board. Evidence was received, including that of a physician who fixed the claimant’s permanent partial ...
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HOLCOMB, J., dissents. This is an action for injunctive relief. From a decree favorable to defendants, plaintiff appeals. [1] At the outset, we are confronted with a motion to strike the statement of facts. The decree was entered *Page 379 and the motion for new trial denied on March 22, 1933. The statement of facts was filed August 12th. The motion to strike the statement of facts is granted. Gr...
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-This is‘an action to recover $5,000 from A. F. Craven, formerly treasurer of appellant school district, hereinafter called the district, and $3,000 thereof from the surety on his bond (that being the amount of the bond) because of misappropriation and conversion of $5,000 of its money. The action was tried to the court, without a jury. At the close of the introduction of evidence on behalf of th...
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On May 21, 1917, T. G. Montgomery and Daisy Montgomery, to secure the payment of $10,000, executed and delivered to respondent a mortgage on a tract of land then owned by them,' which mortgage was duly recorded May 24, 1917. Subsequent to the date of the mortgage, appellant Stewart succeeded through mesne conveyances to the title of the Montgomerys. On March 2, 1932, appellant Stewart and his wif...
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This proceeding was instituted under the Workmen's Compensation Act on account of the death of A.H. Vaughn on December 15, 1931. The appeal is taken from the judgment of the district court reversing the order of the Industrial Accident Board refusing compensation. The deceased, A.H. Vaughn, had, off and on for a number of years prior to his death, been engaged in herding sheep for appellants, Robe...
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This is an appeal from the district court of Oklahoma county, growing out of a controversy resulting from the efforts on the part of defendants in error, Chas. E. Howe and Nellie R. Howe, to enforce the collection of a judgment rendered in their favor and against the plaintiff in error, J.C. Davis. The essential facts for an examination of the Issues presented, and for a determination of this caus...
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In this action the petitioner (claimant before the State Industrial Commission) seeks the vacation of a decision of the State Industrial Commission. On November 26, 1932, the Commission, after a hearing upon the merits of the controversy, found: "That the evidence is insufficient to show that claimant suffered an accidental injury arising out of and in the course of his employment." In accordance ...
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This is an action commenced by George Smith, hereinafter called plaintiff, against the city of Enid, a municipal corporation, hereinafter called defendant, to recover damages in the sum of $13,358, which plaintiff claims to have sustained by reason of the negligent act of the defendant in failing to keep its sidewalks in a reasonably safe condition for public use in the ordinary and usual mode of ...
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The plaintiff in error, defendant in the trial court, C.E. Huffman, engaged in a poker game with one J.L. Jones and others on the evening of December 19, 1927. The game was played at a residence in Oklahoma City. At the close of the game he executed and delivered to J.L. Jones his check in the sum of $2,902 to cover his losses. The check was a negotiable instrument. On the following morning, Jones...
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This is an appeal from a judgment of the district court of Grant county denying recovery of certain taxes paid under protest by the Chicago, Rock Island Pacific Railway Company, hereinafter referred to as plaintiff. W.T. Henderson, county treasurer, will be hereinafter referred to as defendant. The cause of action arose prior to the date that initiative petition No. 100 became effective. For the ...
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This action was filed in the district court of Grant county by the Chicago, Rock Island Pacific Railway Company against W.T. Henderson, county treasurer of Grant county, for recovery of certain taxes paid under protest for the fiscal year of 1926-27. From a judgment in favor of defendant, plaintiff has appealed. It is shown that on July 1, 1926, there was a surplus balance on hand in the general ...
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This action was commenced in the district court of Kay county by the United Brick Tile Company against the Southwestern Construction Company and the Metropolitan Casualty Insurance Company of New York for the purchase price of a quantity of brick furnished by plaintiff to the construction company. From a judgment in favor of plaintiff, the defendant Metropolitan Casualty Insurance Company of New ...
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This is a companion case to No. 22761, Metropolitan Casualty Insurance Company of New York v. United Brick Tile Company, this day decided by this court, 167 Okla. 402, 29 P.2d 771. The judgment of the lower court in cause number 22761 having been affirmed by the decision of this court, there is no controverted issue of law or fact in this case, and, accordingly, the judgment of the trial court is...
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B.F. Cline brought an action against Dr. J.H. Hays for injuries alleged to have occurred to B.F. Cline from a water pitcher falling from the third story of an office building and hitting B.F. Cline on the right shoulder, and causing adhesions of the muscles of the shoulder, great bodily pain and suffering, and permanent injury. Dr. J.H. Hays occupied two rooms, as lessee, on the east side and near...
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By this proceeding petitioners seek to prohibit the respondent court from proceeding to the trial of an action pending therein entitled Bank of America National Trust Savings Assn. v.Reidy et al. Petitioners contend that the issues involved in said action already have been *Page 112 tried and determined in a prior action between the same persons who are parties to the second action. In other wor...
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After a re-examination of the authorities applicable to the legal issues involved in this cause, we find ourselves in accord with the opinion of the District Court of Appeal handed down by said court when this action was pending therein. The question concerning which we were in doubt when we granted a hearing herein was whether the appellate court had properly applied the doctrine of proximate cau...
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Plaintiff obtained judgment against defendants for $1200, and defendants appeal. The complaint contained two common counts, stated separately, the first for money had and received and the second for money loaned. The answer consisted of denials of the allegations of the complaint; and on the issues of fact raised thereby the trial *Page 654 court found in plaintiff's favor and entered judgment ac...
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In 1928 an information was filed against the defendant herein charging him with lewd and lascivious conduct and by a supplemental information filed shortly thereafter it was alleged that defendant had theretofore, in the state of Oregon, been convicted of a felony. On this *Page 24 information defendant in due time entered a plea of guilty and also admitted having suffered the prior conviction. A...
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The attorney-general has moved to dismiss this appeal upon the ground that appellant has not filed any statement of his ground of appeal or any points upon which he will rely. Section 7 of Rule II of the Rules for the Supreme Court and District Courts of Appeal, provides in part as follows : ‘ The appellant must, within five days after giving notice of the appeal, file with the clerk and presen...
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This is an appeal from an order made in proceedings purporting to be supplemental to execution. Assuming merely for the purpose of this opinion that the record is sufficient, the facts material to this appeal, which are recited in the transcript, include the following. In the above-entitled action a judgment was rendered by default in favor of the plaintiffs and against the defendant corporation o...
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Action by plaintiff, as surviving wife of William L. Magby, on the double indemnity provision contained in three policies of insurance on the life of decedent, issued by defendant, the single indemnity provided for therein having been theretofore paid by the defendant company. The case was tried before a jury, which returned a verdict in favor of plaintiff. From the judgment entered upon such verd...
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The plaintiff recovered judgment in this suit in assumpsit for the return of $500 paid to the defendant under the terms of a written contract as part of the purchase price for three lots. The contract referred to the subdivision of the tract in which the lots are situated by reference to an unrecorded map. From this judgment the defendant Stubbs Company, Ltd., has appealed. In consideration of the...
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J ohn E. Fletcher and Christina Fletcher, his wife, were injured by an automobile owned by defendant Roseman and driven by his agent Morris Starker in the course of his employment. John E. Fletcher brought an action to recover the damages sustained by him, and joined with his wife in another action to recover for the damages alleged to have been sustained by her injuries. The cases were consoli...
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This action is based on section 3 of article XII of the Constitution and section 322 of the Civil Code (as of April, 1929) for the recovery of stockholders' liability. Judgment went for plaintiff. [1] The one point raised on appeal may be simply stated and its solution needs no detail as to facts. That point is: *Page 783 Are those who subscribed for stock prior to but in contemplation of incorpo...
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Defendant was charged with violation of section 141 of the California Vehicle Act. This section provides that the driver of any vehicle involved in an accident resulting in injury or death, who fails to stop and render aid, is guilty of a felony. He was tried before the court without a jury and has appealed from the judgment of conviction. [1] The court minutes contained in the clerk's transcript ...
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The defendants have appealed from an order for an injunctionpendente lite which was made in a suit in equity restraining the City of Los Angeles from discharging the plaintiff as an employee in the bureau of engineering in the department of public works of that city. It is claimed he had attained permanent tenure under civil service. The issue on appeal is whether a court of equity has jurisdictio...
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This is a motion to dismiss the appeal or affirm the judgment on the grounds that the appeal was *755 taken for delay only and that the questions involved are so unsubstantial as not to need further argument. It appears from the opening brief that the judgment entered amounted to more than $200,000; that the appellant was forced to abandon a counterclaim in a much larger amount because it was...
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Certain real property described in escrow instructions upon which the parties relied as their agreement having been conveyed by the plaintiff to the defendant, a controversy arose over an asserted discrepancy in the consideration received therefor. After a trial before a jury a verdict was returned in favor of the plaintiff under directions of the court. The defendant thereupon moved for a new tri...
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The defendant was convicted by a jury of the crime of grand theft, accomplished by stealing from E. C. Clarenbach the sum of $375. It is claimed the judgment is not supported by the evidence for the reason that no one testified to having actually seen the defendant take the money, and because the identical currency was not identified. There is no merit in the appeal. Reading the record leaves n...
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This is a motion to dismiss the appeal or affirm the judgment on the grounds that the court erred in relieving the appellant from her default in the matter of filing a bill of exceptions within the statutory time; that for this reason the court had no jurisdiction to settle a bill of exceptions; and that the points raised in the opening brief are so unsubstantial as to require no further argument....
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This is a suit on a promissory note signed by defendant in favor of Ida Shores. The original complaint alleges an assignment or indorsement of the note to Olve J. Shores. The case was called for trial and the court permitted the amendment of the title to the complaint, so that the plaintiff should be “Olve J. Shores, also signs Ida Stockton Shores”. The cause came on for trial and the plaintiff t...
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The defendant in the trial court, the appellant here, was tried before a jury upon the accusation contained in the indictment about to be set out. The jury found the accused guilty, and after a motion for a new trial had been made and denied and accused prosecuted this appeal from the judgment and from the denial of the motion for a new trial. *Page 3 The indictment is as follows: "The said Sidne...
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In Banc. Suit by the Pacific Savings Loan Association, a corporation, against Daniel Bekins and others. Decree for plaintiff, and defendants appeal. On motion to dismiss the appeal. APPEAL DISMISSED. REHEARING DENIED. Plaintiff moves to dismiss this appeal upon the ground that the decree appealed from was given for want of an answer. The suit was brought in the circuit court for Multnomah county,...
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Action by F.W. Smith against Pacific Northwest Public Service Company and another. From a judgment for plaintiff against named defendant alone, such defendant appeals. AFFIRMED. REHEARING DENIED. There are four assignments of error predicated upon the refusal of the court to give certain instructions requested by appellant. The original bill of exceptions, after quoting each requested instruction,...
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In Banc. DEMURRER TO ALTERNATIVE WRIT OVERRULED, AND PEREMPTORY WRIT ORDERED TO BE ISSUED. This is an original proceeding in mandamus instituted by the Warm Springs Irrigation District as petitioner, against Rufus Holman as treasurer of the state of Oregon, to require him as such treasurer to cancel, pursuant to chapter 242, Oregon Laws 1933, the interest certificates of indebtedness issued and de...
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Joseph F. Kostohris, former guardian of the person of estate of Charles Kostohris, an incompetent, has appealed from an order of the district court of Fergus county, declaring him personally responsible for and chargeable with sums aggregating $13,504.47 and directing the payment of that account to the guardian in succession, Merle C. Groene. Charles Kostohris, a World War veteran, was declared in...
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delivered the opinion of the court. Joseph F. Kostohris, former guardian of the person of estate of Charles Kostohris, an incompetent, has appealed from an order of the district court of Fergus county, declaring him personally responsible for and chargeable with sums aggregating $13,504.47 and directing the payment of that account to the guardian in succession, Merle C. Groene. Charles Kostohris, ...
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The main question involved is: May a nonresident illegitimate nominate an administrator under the provisions of subdivision 2 of section 10072, Rev. Codes 1921? We contend that he is not such a "child" as is mentioned in that section or in section 10068, and therefore has not the right of nomination in the present premises. In McDonald v. Southern Railway, 71 S.C. 352, 51 S.E. 138, 110 Am. St. Rep...
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delivered the opinion of the court. Paul Wehr, an unmarried man, died intestate in Fergus county where .he had resided for about twenty years, leaving *249personal property there situated. His alleged heirs consisted of a sister, Anne Wehr Eupprecht, a nephew, Paul Wehr, and an illegitimate son, Paul Noll Wehr, all residents of. Germany. F. E. Cunningham, public administrator of Fergus county, fil...
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OPINION A petition for a rehearing has been filed in behalf of relators, in which it is said that we failed to consider in our former opinion that portion of article 17, sec. 13, of the constitution as originally adopted, reading as follows: "All county officers under the laws of the Territory of Nevada at the time when the constitution shall take effect, whose off...
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The original plaintiff died during the pendency of this appeal. His executor has been substituted in his place. All references herein to the plaintiff or appellant are intended to relate to the original plaintiff. Plaintiff brought this action to quiet his title to certain real property situated in the city of Stockton. Defendants answered, and the defendant M.M. McFarland set forth in his answer ...
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THE COURT. This action was commenced by plaintiff for declaratory relief involving its asserted rights under a contract with defendant and, as incidental to that relief, for a money judgment in the sum of $15,664.50. Judgment was rendered in plaintiff's favor and the defendant prosecutes this appeal therefrom. On February 21, 1924, the parties to this litigation entered into a contract whereby the...
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Petition for review and annulment of the order of the respondent commission which denied any compensation to the petitioner. *Page 144 The petitioner claims compensation as a dependent widow of Glenn MacArthur, who met his death on April 1, 1932, at Wilmington, California, from injuries sustained while he was employed as a loftman by the respondent Raymond Concrete Pile Company. The respondent Em...
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This is a petition for review of the second order of the respondent Industrial Accident Commission denying the application of the petitioner, Fannette Winthrop, for compensation. The claim for compensation grew out of an operation by which an ovarian cyst or tumor was removed from the abdominal cavity of the petitioner. The tumor had become strangulated by its pedicle or stem having become twisted...
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This is the second review in this matter. A petition for a review of the respondent commission's first order was granted by the District Court of Appeal. The order of the commission denying any compensation to the widow and dependents of the deceased employee was annulled by that court and the application was remanded for further proceedings and findings. (Nielsen v.Industrial Acc. Com., 125 Cal.A...
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This is an appeal from a judgment for the plaintiff in an action to foreclose a mechanic's lien. The claim grew out of the construction of the Covell Hotel in Modesto. The plaintiff was employed by the general contractor to furnish the labor and materials to complete the mason work on the structure. The building was completed and accepted. No question is raised as to the due filing of the claim of...
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Action for an accounting upon sale of land by a surviving trustee pursuant to the provisions of a deed of trust. Plaintiff alleged that the money received by defendant trustee at the time of sale was $15,000 in excess of the sum required to discharge the indebtedness under the trust deed, together with advancements and expenses, including costs of sale. Defendant answered, alleging that he sold t...
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The plaintiff, a co-operative marketing corporation, organized under the laws of California for the purpose of securing the benefits of the Federal Agricultural Marketing Act, caused to be grouped together in the year 1930, a large percentage of the grape acreage of California, by securing the signatures of the owners of such acreage to a uniform marketing agreement constituting it their selling a...
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Respondent, plaintiff below, to secure the fruits of a rescission in pais on a contract to purchase shares of stock of the appellant corporation, sued the said corporation and its stock sales manager, J.G. Tavares, for the sum of $6,000, representing the value of securities exchanged by respondent for said stock, which transaction was alleged to have been induced by fraudulent representations. The...
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In an action for an alleged balance remaining unpaid upon a contract price of printing, judgment in favor of defendant was rendered by the court without a jury. A motion to vacate said judgment was denied. The plaintiff appealed from the judgment and ruling last mentioned. The parties having entered into a contract in writing for certain weekly advertising, through a purported agent of the respond...
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On August 5, 1927, the appellants leased a certain parcel of land in Kern County to the Shell Oil Company under a lease providing for the development and production of oil upon the property. Subsequently the Shell Oil Company transferred the lease to L.C. Osborn, who transferred it to Thomas B. Leddy, and he, in turn, transferred it to William H. Allen, Jr., who will herein be referred to as the r...
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This action was brought by plaintiff to foreclose a mechanic's lien for labor and material furnished in a building owned by defendant Paul I. Johnson under a subcontract entered into between plaintiff and defendant Bessolo Gualano, Inc., and to recover from it the value of said labor and material, and also to recover from defendant, the Fidelity Union Casualty Company, the value of said labor and...
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Plaintiff brought this action for the rescission of a contract to purchase real property and to recover the sum of $2,052.50 which had been paid under the terms thereof. Defendants' motions for nonsuit were granted and from the judgments of nonsuit plaintiff appeals. Defendant Title Guarantee and Trust Company, hereinafter referred to as the owner, was the owner with which plaintiff entered into t...
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Defendant was charged with violation of chapter 638, Statutes of 1931 (Deering's Gen. Laws, Act 5130b), in that he and his co-defendants on May 2, 1933, did wilfully, unlawfully and feloniously engage in the business and act in the capacity of motor carrier transportation agents without first obtaining a license therefor. The case was heard by the court sitting without a jury, and resulted in the ...
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This appeal is from a judgment entered pursuant to aremittitur of this court on the previous appeal in the cause, reported in 129 Cal.App. 738 [19 P.2d 280]. Theremittitur there directed "that the judgment of the superior court in and for the county of Los Angeles in the above-entitled cause be and the same is hereby reversed with directions to thetrial court to render judgment as prayed for in th...
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This action was begun by the plaintiff against the State Board of Education of the State of California, the County Board of Education of the County of Los Angeles, the Board of Education of the City of Los Angeles, the State Superintendent of Public Instruction, County Superintendent of Schools of Los Angeles County and the Superintendent of Schools of the City of Los Angeles, and all the members ...
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Plaintiffs, as owners of a piece of real property bordering upon Griffith Park in the City of Los Angeles, claimed an easement for ingress and egress to and from said property over a strip of land situated within said park. They brought this action to enjoin the defendants from constructing a fence along the boundary line of said park upon the portion thereof over which plaintiffs claimed such eas...
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Appeal by defendants from a judgment against them based on the verdict of a jury awarding $21,269.21 as damages for alleged fraudulent representations in the purchase and sale of lands and as inducement to plaintiff’s entering into contracts for the improvement of the lands so agreed to be purchased. It appears without question that the defendant Union Bank & Trust Company held the legal title to ...
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The plaintiffs sued on two policies of insurance, alleging that the sum of $12,500 had been paid by them to the widow of an employee of the stevedoring company who was killed during the course of his employment and that the sum of $2,000 had been paid as attorneys' *Page 119 fees in the settlement of that claim. Trial was had with a jury, resulting in a joint verdict and judgment for the plaintif...
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This is an appeal from a judgment for the sum of $12,500 with interest upon a disallowed claim against the estate of A.W. McPherson, deceased. Appellant contends that the judgment cannot stand for the reason that the statute of limitations had run against a promissory note with a trust deed securing its payment before the claim was presented to the probate court. The facts are as follows: On the t...
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The appellants Cascino, Tartaro and Cirimele were found guilty by a jury of the crime of second degree burglary, and they have appealed from the judgment of conviction, urging as grounds for reversal insufficiency of evidence and error in the giving and the refusal to give certain instructions. [1] The place alleged to have been burglarized was a grocery store on the corner of Fillmore and Jackson...
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[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 31 Plaintiffs brought this action to quiet title to eighty acres of land in Kern County. The answer of defendants is not in the record. No point is made of this omission and as both counsel agree that the answer denied title of the land in the plaintiffs and ...
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Professional services having been rendered by the plaintiffs for the defendant corporation at the instance and request of its representatives, and a portion *Page 149 only of the fees therefor having been paid, suit was instituted for the balance, in which a judgment was rendered in favor of the plaintiffs. Defendant corporation appealed. From the testimony of the defendants it appeared that defe...
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In this action the defendant was jointly indicted with Tony Cardinale, Ralph Thatcher, Charles F. Gingg and F.B. Hoyt (otherwise known as Bernard Felts), tried and found guilty of two robberies, and also the offense of murder. The verdicts returned against the defendant George Jones found him guilty of robbery on one of the counts in the second degree; guilty of robbery on one of the counts in 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 63 On the night of January 6, 1933, or the early morning hours of January 7th, about seven tons of raisins were stolen from a vineyard in Fresno County, owned by the Wishon-Watson Company. Sixty-seven boxes of raisins had been emptied and ten boxes were missi...
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Suit was brought by plaintiff to recover a balance of $3,500 on an earned commission of $8,500. It was admitted that defendant agreed in writing to pay the total commission of $8,500 and that but $5,000 thereof was actually paid. Defendant set up as an affirmative defense that the purchaser to whom the property was sold, on which sale the commission was earned, defaulted and refused to perform its...
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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 748 In action No. 53418 the defendant was accused of the crime of receiving stolen property, then and there the personal property of one Orlando, defendant well knowing the same to have been stolen. The alleged date of commission of this crime was July 11, 19...
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From a judgment in favor of plaintiffs, defendants have appealed. The evidence shows that defendant Shacklett was president and general manager of defendant Calmin Mortgage Corporation, and that after driving a car belonging to the corporation to Riverside on business of the latter, he proceeded on his own business, driving the same car; that when about 36 miles south of the town of Indio he at...
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On the twenty-fifth day of June, 1929, the City of Los Angeles was the owner and engaged in the operation of a drawbridge, spanning a channel used and maintained by the city for the purpose of ingress and egress of ships, and connecting with a public highway. On said day Joseph Huey, a thirteen year old boy, was accidentally killed on said bridge. This action was brought by the father of said mino...
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— This is a controversy involving a claim of homestead. Defendants, J. T. Tasker and Effie M. Tasker, being the owners of the north half of lots 3 and 4, block 28, Original Town of Kelso, mortgaged the east sixty-two feet of the tract, upon which stood a duplex dwelling. The west thirty-eight feet of the tract was not included in the mortgage. Suit was instituted in the superior court of Cowlit...
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Respondent, as plaintiff, instituted this action by serving and filing a complaint in which she alleged that the defendants Littlefield, on May 25, 1929, held title to certain described real estate in Pierce county by virtue of an unrecorded deed in which Ralph W. Littlefield was named as grantee. That, on the day mentioned, Ralph W. Littlefield delivered the deed mentioned to the plaintiff as a p...
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Appellants, as plaintiffs, brought this action for the purpose of obtaining a construction of the will of Dexter Horton, deceased, as applied to certain trust funds provided for and established under the *Page 503 terms of such will; for the allowance of compensation to them as such trustees and an allowance to their counsel for services in the matter thus presented to the court. By stipulation, ...
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This is an appeal from an order appointing a receiver in an action brought by respondent against appellant, Lola Skartvedt, as lessee in possession of certain property in Seattle called the Carolina Court Apartments, the real estate being owned by New York Life Insurance Company and Charles F. Clise being alleged to have some interest in the rents, issues and profits thereof. The summons and compl...
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The relators (three boys, the father of two of the boys and the mother of one of the boys), by this certiorari proceeding, seek review and reversal of a judgment of the superior court for Pacific county committing three boys (Marvin and Merrill Helwig, twins sixteen years old, and Glenn Everitt, fifteen years of age) to the state training school. On November 23, 1933, a written complaint was made,...
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A petition was filed on behalf of Parley F. Gerber for a writ of habeas corpus wherein it was alleged that he was unlawfully detained and restrained of his liberty by the sheriff of salt Lake County on a judgment of the district court in and for the county of Salt Lake, committing the applicant to the custody of the sheriff to be imprisoned in the county jail for failure to pay monthly payments of...
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The plaintiff, Maycock, brought this action against the defendants White as principal and the Indemnity Insurance Company as surety on a surety bond. It is alleged in the complaint that, in pursuance of chapter 38, Laws of Utah 1929, White was granted a license by the state agriculture board to engage in the business of a produce dealer as by *Page 447 the act provided and in accordance therewith...
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In this action the petitioners seek to vacate an order and award of the State Industrial Commission entered on June 5, 1933, in favor of the respondent George Underwood, claimant before the Commission. The parties will be referred to as petitioners and claimant, respectively. On the 12th day of June, 1930, the claimant, while performing services for the Sterling Milk Products Company, sustained an...
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This is an appeal from a judgment of the district court of Pontotoc county. The cause was before this court and the decision thereof was reported under the title of McKeel v. Mercer, 118 Okla. 66, 246 P. 619. The judgment theretofore rendered was reversed by this court by that decision for the reason that the trial court had taken from the jury a controlling question in the case, which question wa...
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On the 14th day of May, 1931, relator filed his application in the district court of Pottawatomie county, praying for a peremptory writ ordering and commanding J.H. Reynolds to vacate the office of member of the board of education of the city of Maud from ward 2 of said city. On the 16th day of June, 1931, a judgment adverse to the relator was rendered by the court, and the appeal therefrom was fi...
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The district court of Oklahoma county, over the protest of the plaintiffs in error, entered its order directing the issuance of a permit to drill a well for oil and gas. From that order they appealed to this court. It is admitted that the area of the tract on which it is sought to drill the well is less than that required by the provisions of ordinance No. 3944 of the city of Oklahoma City. The tr...
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On March 24, 1926, A.C. Bickell was appointed administrator of the estate of Nancy Horseman in the county court of Grady county. The estate, so far as material here, consisted of $1,988.86 on deposit in the Farmers Exchange Bank of Lindsay, and $50 on deposit in a bank at Blanchard. The administrator was then, and had been for about 18 months, the cashier and active manager of the Farmers Exchange...
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This is an original proceeding in this court to procure a review of *Page 399 an award of the State Industrial Commission. The record shows an accidental personal injury within the provisions of the Workmen's Compensation Law (chapter 72, O. S. 1931) resulting in permanent partial disability, for which no compensation has been paid, and an award therefor. It also shows that prior to the making of...
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This is an appeal from a judgment of the district court of Canadian county in favor of the defendant in error, who was the plaintiff in that action, against the plaintiff in error, who was one of the defendants in that action. The plaintiff alleged in her petition that she was the executrix under the last will and testament of Louise C. Reed, who died testate seized and possessed of a certain trac...
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On the 28th day of January, 1925, T.W. Vandenburg was the owner and holder of a note secured by a mortgage on a frame building in Hooker, Okla. He was carrying fire insurance on the property with the usual loss payable clause to himself as mortgagee. On the date mentioned C.W. Ferguson, who was representing him as attorney in connection with this delinquent *Page 372 indebtedness, went with him t...
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This is an original proceeding in this court instituted by the claimant before the State Industrial Commission to review an order denying the claimant's claim for compensation. The petitioner herein will be referred to as the claimant, the Oklahoma Gas Electric Company as the respondent, and the Fidelity Casualty Company as the insurance carrier. The claimant filed his first notice of injury and...
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This action was filed in the superior court of Okmulgee county by J.A. Roper, J.H. Nance, N.Z. Hays, J.M. White, D.A. Gallemore, J.E. Guess, and A.L. Wallace against the board of education of the city of Okmulgee, wherein it was sought to obtain an injunction to enjoin and restrain one W.H. Fort from performing the duties of principal of Dunbar High School in the city of Okmulgee under a contract ...
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This is an appeal from a judgment of the district court of Oklahoma county enjoining the plaintiff in error, the defendant in the trial court, from proceeding with the drilling of a well for oil or gas on property within the corporate limits of the city of Oklahoma City. The judgment was based on a finding that the defendant was violating a provision of city ordinance No. 3944 in that it was drill...
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This is an appeal from a judgment of the district court of Pottawatomie county in favor of the defendants in error, as the defendants, against the plaintiffs in error, as the plaintiffs. The parties will be referred to as they appeared in the trial court. The record shows that the defendant State National Bank of Shawnee brought an action against Sam Brown and Silvia Brown in the superior court of...
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This is an original proceeding instituted in this court for the purpose of vacating an order and decision of the State Industrial Commission. The petitioner (claimant before the Commission) suffered an accidental personal injury on January 20, 1931. At the time of his injury the claimant was employed by the respondent, Atlas Supply Company, a wholesale mercantile establishment. He was driving his ...
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This case was appealed from the district court of Kay county, Okla. The parties will be referred to as they appeared in the trial court, the plaintiff in error being the plaintiff in the district court, and the defendant in error being the defendant in the district court. The facts in this case are briefly as follows: That on the 15th day of June, 1927, the defendant, Hattie Ingle, made, executed,...
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This is an appeal by the defendants from a judgment of the district court of Oklahoma county, Okla., in favor of the plaintiff in the action. The judgment was that the defendants convey to the plaintiff a one-sixteenth interest in the land involved in the action and one-sixteenth of the proceeds of the sale of an oil and gas lease thereon, less the amount paid by the defendants to the plaintiff fo...
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Plaintiff in error was plaintiff and defendants in error (except L. Wade, who was only a nominal party and who filed disclaimer) were defendants in the court below, and they will hereafter be referred to as they appeared in that court. On the 10th day of August, 1929, the defendant L. Wade was trying to promote a drilling deal on certain town lots in Asher, Okla., which were owned by the defendant...
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The record in this case shows that Joseph E. Manning, a resident of Tillman county, Okla., owned the 160 acres of land involved in this action. It had been occupied by him, his grandson, Joseph E. Meek, a minor, and an adult son, Hartwell G. Manning, and the wife and two children of Hartwell G. Manning. Joseph E. Manning made a will by the terms of which the land involved in this action was devise...
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This is an appeal from a judgment of the district court of Seminole county in favor of the defendants in error, as defendants, against the plaintiff in error, as plaintiff. The parties will be referred to as they appeared in the trial court. The issue herein is the title to an undivided one-fourth interest in 160 acres of land in Seminole county, Okla., which was inherited by the plaintiff, a full...
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On May 14, 1926, one L.B. Edwards entered into a written contract with plaintiffs in error, Roy M. Smith and C.E. Kahle, for the exchange of certain real and personal property. Therein Edwards was designated party of the first part and Smith and Kahle were designated as parties of the second part. Thereby party of the first part agreed to sell and convey unto parties of the second part all the cap...
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This action was filed in the district court of Seminole county by R.R. Reynolds, in which he sought to obtain an injunction against A.L. Tankersley, R.B. Jackson, and Joe McDonald, members of the board of education for union graded school district No. 3, of Seminole and Pottawatomie counties. A judgment was rendered denying the application for injunction, and plaintiff has appealed. The parties wi...
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Plaintiff in error, hereinafter called defendant, was convicted in the district court of Muskogee county of murder and his punishment fixed at imprisonment for life. Defendant contends the evidence is insufficient to sustain the judgment; that neither the proof of death by poison or that defendant administered any poison to deceased is shown. The case rests on circumstantial evidence. Briefly stat...
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Plaintiffs in error, hereinafter referred to as defendants, were jointly charged, tried, and convicted of the crime of larceny of domestic fowls. The jury having failed to agree upon the punishment, the court sentenced each of the defendants to serve a term of six months' imprisonment in the state penitentiary. The evidence of the state was that on the night of April 27, 1932, one Owen McDow had f...
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The plaintiff in error, hereinafter referred to as the defendant, was convicted of giving a bribe, and sentenced to a term of two years in the state reformatory, at Granite, and to pay the cost of the prosecution. The testimony shows that on or about the 3d day of May, 1932, A, E. Pittman and C. F. Arnot were two of the duly elected, qualified, and acting members of the board of county commissione...
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Plaintiff in error, hereinafter called defendant, was convicted of burglary in the second degree in the district court of Roger Mills county and his punishment fixed at two years in the penitentiary. It appears the teacher and officers of the Diamond Front school district of Roger Mills county had lost coal from their coal house, and for the purpose of detecting the guilty person they bored holes ...
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Plaintiff in error, hereinafter called defendant, was convicted in the district court of Rogers county of the offense of driving an automobile while intoxicated, and his punishment fixed by the jury at a fine of $700 and imprisonment in the state penitentiary for a period of nine months. *Page 295 The evidence of the state is conclusive that defendant was driving his automobile on highway No. 66,...
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The plaintiff in error, hereinafter referred to as the defendant, was tried and convicted of robbery with firearms and was sentenced to serve five years in the state penitentiary at hard labor, and appeals. *Page 299 The transcript discloses that on the 13th day of April, 1933, the case was called for trial and jurors were called into the box, sworn and examined on their voir dire; and, when ther...
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The plaintiff in error, hereinafter referred to as the defendant, was convicted of having in her possession intoxicating liquor, with intent to barter, sell, give away, and otherwise furnish to others, and was sentenced to pay a fine of $50 and be confined in the county jail for 41 days, and appeals. The testimony shows that the sheriff of Kingfisher county, together with other officers, went to t...
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We believe the following cited authorities are ample to sustain our contention that a defendant who voluntarily takes the witness stand in his own defense cannot be interrogated with respect to matters which were not inquired about in his direct examination, for the purpose of impeachment, particularly where the answers to such interrogatories constitute admissions or confessions on the part of th...
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This action was commenced by respondent to recover on an accident insurance policy issued by appellant. A jury was waived and the trial resulted in judgment for plaintiff, from which defendant appealed. The record discloses that appellant, for a valuable consideration, issued a policy insuring respondent against loss by accident; that at a time when the policy was in force and effect and when resp...
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This is a suit to quiet title to the right to the use of 600 miner's inches of water, being a part of a water right consisting of 750 miner's inches, adjudicated in what is known as the "Frost decree" and appurtenant to land referred to in this case as the "Buller ranch." Appellant bases its claim to the right to the use of this water on its title to the Buller ranch, acquired by the foreclosure o...
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Action by the Wheeler Lumber, Bridge Supply Company against Herbert Shelton, sheriff of Linn county. From a judgment in favor of the defendant, the plaintiff appeals. REVERSED. REHEARING DENIED. It appears from the record that Sim F. Etzel was engaged in cutting rough fir lumber at a mill which he was operating some seven miles from the town of Lyons in Linn county, Oregon. On November 10, 1930, ...
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In Banc. Action by Gillen-Cole Company, a corporation, against Fox Co., a corporation, in which the Plumbing Heating Sales Corporation was brought in as garnishee. *Page 209 From a judgment for $1,445 entered upon findings of fact and conclusions of law, the garnishee appeals. AFFIRMED. July 18, 1930, the plaintiff instituted this action, alleging that it had sold merchandise of the value of $1...
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Action by Josephine Gabriel and another against Frank Collier and others. From a judgment against defendant named and in favor of his codefendants, defendant named appeals, and plaintiffs cross-appeal. MODIFIED. *Page 248 This is an action for damages on an alleged conspiracy to defraud. Plaintiffs, in their complaint, allege, in substance, that during the early part of the year of 1929 they were...
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THIS action was commenced in the district court of Jefferson county by the Colorado Central Power Company *Page 289 under C. L. '21, § 7287. It seeks to set aside the assessment of the company's property theretofore made for the year 1929 by the Colorado Tax Commission. It was alleged in the complaint that the assessment of the commission was illegal, erroneous and not uniform with the assessment...
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THIS case is between the same parties as appear in No. 12,949, Colorado Tax Commission v. Colorado CentralPower Company, 94 Colo. 287, 29 P.2d 1030, just decided. There we reversed a judgment of the district court of Jefferson county, and directed that the tax assessment which had been made upon the company's property by the commission, and which had been *Page 293 erroneously reduced by the lowe...
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THIS case is in all its aspects similar to No. 12,990,Colorado Tax Commission v. Colorado Central PowerCompany, 94 Colo. 292, 29 P.2d 1031, just disposed of on the authority of No. 12,949, same title, 94 Colo. 287,29 P.2d 1030. In the present instance there is involved only that portion of the tax assessment which represented the company's property in Weld county. The place of trial was, by writte...
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THIS controversy concerns the boundary or dividing line between the NE 1/4 and the NW 1/4 of section 11, Twp. 22 S., R. 61 W., Pueblo county, Colorado, and involves a strip of land approximately 40 feet in width along the dividing line between the two quarter sections. The defendant in error, on the 13th day of March, 1931, instituted this action which is in the nature of ejectment, designated, ho...
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PLAINTIFF in error, who is the Dill mentioned in the second paragraph of our opinion in Crane and Flynn v.People, 91 Colo. 21, 11 P.2d 567, is hereinafter referred to by name. He was convicted of a violation of section 6946, C. L. 1921, by obtaining money for corporate stock by a swindling or cheating transaction, and sentenced to a term of from four to ten years in the penitentiary. To review tha...
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THE plaintiff in error was plaintiff in the trial court and by his complaint, according to the prayer thereof, sought to quiet the title to a certain strip of land theretofore used for a railroad right of way across property of which he is now the owner; sought to enjoin the defendant from trespassing on said property and seeks to recover possession thereof. He now asks this court to review an adv...
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The complaint is insufficient in not negativing the exception that if the insured was employed on the premises of an open pit or mine, the benefit would be reduced one-half. This is not the case of a contract imposing a liability and then providing a discharge therefrom under certain contingencies, but it is a case where the contract at the very outset imposes a restricted liability, the happening...
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The plaintiff brought this action in a justice's court against[1] defendant upon an account for goods sold and delivered. Plaintiff had judgment, upon which a writ of execution issued February 6, 1933. Pursuant to the writ, the sheriff on February 11, 1933, levied upon moneys due defendant from a bank sufficient to satisfy the judgment in full and sheriff's costs, collected the same, and paid the...
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On the petition of John J. Dunn, an alternative writ of mandamus issued from the district court of McKinley county, directed to the town of Gallup and officials thereof, commanding them to cause the removal of specified curb gasoline pumps as street obstructions, or to show cause. An answer raised issues of fact and of law. Upon findings and conclusions, final judgment was entered dismissing the w...
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Tootle-Campbell Dry Goods Company, a corporation, hereinafter called plaintiff, brought suit against Rose Scorse Knott and her husband, John Doe Knott, E. B. Newman and his wife, Julia Scorse Newman, and John Doe Chambers and his wife, Ellen Scorse Chambers, hereinafter called defendants, alleging that they were doing business under the trade name and style of the H. H. Scorse Estate. The case wa...
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This is an action brought by B.D. Proctor, hereinafter called plaintiff, against George W.P. Hunt, Mit Simms and Ana Frohmiller, at the time of filing this action being Governor, treasurer and auditor of the state of Arizona, whom we shall designate hereafter by the titles of their offices, under the provisions of section 105, Revised Code 1928, which reads as follows: "§ 105. Officers and persons...
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City of Phoenix, a municipal corporation, hereinafter called the city, sought a writ of certiorari in this court to review the proceedings of the superior court of the state of Arizona, in and for the county of Maricopa, in a certain case which went to judgment in that court, wherein J.D. Greer was plaintiff, and the city was defendant. The writ was issued, and the record certified to us shows the...
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Continental Oil Company, a corporation, hereinafter called plaintiff, brought suit against Phoenix Title Trust Company, a corporation, hereinafter called defendant, to recover damages for the alleged negligence of defendant in preparing a certain abstract of title to property which was purchased by plaintiff from N.B. Cooper and Nell B. Cooper, his wife, in reliance upon said abstract. The case w...
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The opinion of the court was delivered by This is an action to recover a bank deposit. A jury was waived, the trial court made findings of fact and conclusions of law, and rendered judgment for plaintiffs. Defendant has appealed. The principal point in controversy is whether the transaction out of *54which the deposit arose was a bank transaction or the individual transaction of an officer of one...
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The opinion of the court was delivered by These were actions to recover damages for the unlawful conversion of live stock. Judgment was for the plaintiff in each case. Defendant appeals. W. W. Hill had borrowed about $20,000 from defendant bank; To secure this indebtedness he had given two notes and a chattel mortgage on several hundred head of sheep and sundry mules and cattle. When he shipped th...
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The opinion of the court was delivered by This was an action for damages to plaintiff’s herd ' of dairy cows and other incidental damages caused by the discharge of deleterious substances from defendant’s storage tanks into a natural course which flowed through plaintiff’s cow pasture. His seven milch cows drank of the polluted water, which sickened them; their milk yield greatly decreased; and th...
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The opinion of the court was delivered by This was a suit to recover damages for injuries sustained during the course of a wolf hunt, the plaintiff having been struck by shot from a gun discharged by the defendant. A trial was had to a jury which returned a general verdict in favor of the plaintiff, and answered special questions. The eighth question was: “Was the plaintiff guilty of contributory...
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*4The opinion of the court was delivered by This is an action by the Peoples Exchange Bank, of Elmdale, Kan., against ten directors of the Chase County National- Bank to recover upon a contract $930.15 interest on the deposit of the former bank in the latter -bank, the interest accruing after the closing of the latter bank and the serving of notice upon the directors of demand for payment. Judgme...
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The opinion of the court was delivered by This is an action to recover the earned premium on .an insurance policy canceled within the term for which it was written. Defendant, contending it had paid for the- full term, sought, by cross petition, to recover the unearned portion of the premium. Trial was to the court upon an agreed statement of facts. Judgment was for defendant, as prayed, and plai...
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The opinion of the court was delivered by This is an appeal from the ruling of-the trial court in denying the defendant’s motion for a new trial in an action for damages occasioned by an automobile collision, particularly because the verdict was given by the jury under the influence of passion and prejudice and that the amount of the verdict was excessive. Appellant also alleges errors in overruli...
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The opinion of the court was delivered by This case was decided November 11, 1933, and the opinion appears in 138-Kan. 322, 26 P. 2d 448. A petition for rehearing and an amended petition for rehearing will be noticed, principally because, since we decided the case, appellant has gone back to the trial court and procured a correction of a journal entry which now shows that answers to four certain ...
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The opinion of the court was delivered by This action under the workmen’s compensation act was brought by Rosa Finck, mother of Jesse Owen Towles, deceased, and Robert Finck, his stepfather, for compensation as partial dependents. Compensation was denied because the commission and the district court each held that the injury did not arise out of the employment in which Towles was engaged when he ...
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The opinion of the court was delivered by This is a rehearing. Our first opinion gave the facts and the trial court’s disposition of the case. (138 Kan. 99, 23 P. 2d 500.) Appellee complains that our order directing the trial court to enter judgment on the special findings of the jury was ill-advised. A reperusal of the record discloses that while the trial court stated that the special findings w...
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The opinion of the court was delivered by This is an appeal by plaintiff from a judgment in *136his favor in an action to enjoin the defendants from levying and collecting assessments upon a parcel of land owned by him in a tract of platted acreage designated “West Hills” and which is located about a quarter of a mile west of the city of Lawrence. It appears that in 1931 the board of county commi...
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The opinion of the court was delivered by This is an action to recover damages for injuries received by the negligence of the defendant whose car bumped into the rear of a car in which the plaintiff was sitting while waiting for the movement of two other cars ahead of it at a busy intersection of streets in the city of Wichita about 5:30 p. m., on June 28, 1932, so that her right shoulder was inju...
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The opinion of the court was delivered by For reasons deemed sufficient a rehearing was granted in this appeal. The material facts are sufficiently stated in our first opinion. (138 Kan. 31, 23 P. 2d 475.) It is now strongly urged that the evidence was insufficient to identify this defendant as one of the three robbers who invaded Warden’s place of business on the night of April 18, 1931. This con...
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The opinion of the court'was delivered by Defendants were tried and found guilty on an information charging them in the first count with rape of a woman, and in the second count with robbery of a man of an automobile. Defendants appeal, and assign as error denial of a motion to quash the information on the ground distinct and dissimilar felonies were improperly joined. The information charged the ...
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The opinion of the court was delivered by Lulu Bayless Martin was charged with and convicted of having possession of intoxicating liquor and also of maintaining a nuisance at a place in Topeka. Defendant has appealed. *32There was testimony that she used a friend, Mrs. Seavers, to rent a house for her in which liquor was kept and defendant furnished the money to pay the rent. Liquor was purchased ...
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The opinion of the court was delivered by The action is one of mandamus, commenced by the state highway commission, to require the pipe-line company to adjust its pipe lines and other structures to highway needs. The parties have collaborated in a most commendable manner in preparation of the motion for the alternative writ and the answer. Issues of fact have been eliminated, and the highway comm...
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The opinion of the court was delivered by This is a disbarment proceeding. The members of the state board of law examiners, after considering complaints made to them, prepared and filed in this court an accusation in fifteen counts for the disbarment of J. P. Evans, an attorney at law of Ulysses, Kan. To these charges he filed a general denial. This court appointed A. M. Ebright, of Wichita, form...
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The opinion of the court was delivered by A rehearing was granted because of the urgent appeals of counsel appearing as amici curice for a modification of the second paragraph of the syllabus and corresponding portion of original opinion (138 Kan. 36, 23 P. 2d 585), wherein it was ruled the trial court committed no error in refusing appellant permission to amend the bond given or to file a new bon...
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Application to assume original jurisdiction denied. RILEY, C. J., OULLISON, V. C. J., and SWINDALL and BAYLESS, JJ., dissent. ...
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This is an original proceeding in habeas corpus in which petitioner is charged with murder in Oklahoma county and was held by the committing magistrate for the district court. Petitioner alleges that there is not any showing of probable cause and proposes that he be discharged, but in the alternative defendant prays that, in case the court should: find a showing of probable cause, he be admitte...
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In Banc. APPEAL DISMISSED. REHEARING DENIED. The respondents have filed a motion to dismiss the appeal in this action and to affirm the judgment appealed from in the respect hereinafter specified. On December 27, 1933, the judgment was entered by the circuit court in this case, in which judgment it was stated that the defendants had, in open court, given notice of appeal to the Supreme Court. On D...
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BEALS, C.J., STEINERT, and TOLMAN, JJ., dissent. This is an appeal from an order appointing a receiver for mortgaged premises in Seattle during the pendency of the suit. The appointment of *Page 134 the receiver was based upon the amended complaint, the answer of appellant, and certain affidavits set out in the statement of facts. The order of the lower court appointing the receiver was to the ef...
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ON REHEARING. Upon a rehearing En Banc, the court adheres to the Departmental opinion heretofore filed herein, and reported in173 Wash. 679, 24 P.2d 117....
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