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an order made July 1, 1907, authorizing the said plaintiff to take possession and use said lands during the pendency of and until the final conclusion of the litigation, and to prohibit all other proceedings under or in furtherance of the judgment; and incidentally to annul all the proceedings subsequent to the verdict of the jury." The proceedings of the trial are set out in extenso in the pleadings before us. It is not claimed that the court acted in excess of its jurisdiction until after the verdict of the jury was rendered. The said verdict, in response to the only issues submitted to said jury, was as follows: "We, the jury in the above entitled cause, find for the defendants as our verdict, in this case, and answer the questions submitted as follows: (1) What was the value per acre on the 13th day of November, 1906, of the first or smaller tract or parcel including the improvements thereon sought to be condemned? Answer: 0.354 acres at $400 per acre$141.60. (2) What was the value per acre on the 13th day of November, 1906, of the second or larger tract or parcel of land sought to be condemned? Answer: 2.723 acres at $500 per acre, $1,361.50. (3) What damages, if any, will accrue to the larger tract not sought to be condemned by reason of the deprival of a site for a wine cellar? Answer: $2,000. (4) What will be the damages, if any, accruing to the larger tract not sought to be condemned by reason of its severance from the portion sought to be condemned, and the construction of the improvement in the manner proposed by the plaintiff, accruing from all sources other than the deprival of a site for a wine cellar? Answer: $500. (5) What will be the cost of a good and sufficient fence along the line of the proposed railroad? Answer: $1,025.00. (6) Total value of land $1,503.10. Total damages, $2,300."

Neither party demanded that any other issue be submitted to the jury, and it is claimed by respondent that no objection was made by petitioners to the form of the issue. Petitioners, however, aver that they objected to the segregation of the damages to the portion not to be taken as provided in questions 3 and 4. This conflict in the pleadings as to the objection must be considered of no importance on an application for a writ of prohibition. The peculiar method of presenting the question of damages to the land not to be taken, though, has a bearing of some significance upon the determination of the question before us. It was claimed by the defendants in the condemnation proceeding that, if the portion of tract No. 2 described in the complaint and sought to be condemned should be taken, they would be deprived of a site for a wine cellar of great value for that purpose on account of its peculiar location. During the trial, after the plaintiff becam apprised of this contention of the defendants, it sought to abandon any claim to a portion of said tract and to withdraw it from condemnation, and thereby leaving a sufficient

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area of said tract 2, according to the testimony of some of the witnesses and the subsequent finding of the court, for every pur pose of a wine cellar. It asked permission of the court to so amend its complaint as tc eliminate the element of damage on account of the deprival of the site for a wine cellar. Defendants objected to the proposed abandonment or to any amendment to the complaint, and their o'jection was sustained. The judge of the court, however, remarked: "At the conclusion of the case, if the plaintiff sees fit to abandon the piece now under discussion, the court will consider that proposition, and, if the plaintiff asks the court to instruct the jury to eliminate from their estimate of damages and values that caused by this piece, the court will consider that proposition. I will consider those propositions at the conclusion of the case." There is some controversy as to what took place subsequently and before the verdict of the jury was rendered, but respondent avers that when the evidence was closed plaintiff, through its attorneys, stated to the court that it abandoned that proportion of the proposed right of way described in the complaint as tract No. 2 and constituting the so-called wine cellar site, and that the court instructed the jury that the motion to amend the complaint and all proceedings under that motion were for the court, and not for the jury, "and that during the course of the opening argument of plaintiff's attorney to the jury he was proceeding to state that this portion of the land was not necessary for plaintiff's use, and for that reason plaintiff had abandoned it, and that thereupon the attorneys for defendants objected to this line of argument upon the ground that it was a matter for the action of the court alone. Whereupon the court sustained the objection, and instructed the jury to disregard the matter objected to, and that the question of the necessity of the taking of said land and of the abandonment by plaintiff of one portion of the land sought and described in the amended complaint was wholly reserved for the court, and that the court would attend to that matter, after the verdict of the jury upon the issues of value of land taken and damages sustained was rendered. Some time after the jury was discharged the court filed its findings." These covered the various allegations of the amended complaint as to the incorporation of the plaintiff, and the location and general route of its railroad. They contained, also, the verdict of the jury and a declaration that it is necessary that plaintiff shall acquire a right of way over tract No. 1 as described in the amended complaint, and that it is not necessary for said purpose that plaintiff should acquire a certain portion of the second tract described in paragraph 6 of the amended complaint. It is also found that at the trial in open court plaintiff abandoned, waived, and relinquished any right to acquire or condemn said portion of lot No.

2, and admitted and declared, and the evidence adduced by plaintiff established the fact, that said piece of land is not required, and that the sum of $500 comprises the entire damages to the portion of the land not taken and that the residue of the land adjacent to a certain spur track of the Southern Pacific Railroad Company is available for a site for a wine cellar for the deprival of which site the jury assessed the damage at $2,000. Then follow the specific findings of damage in accordance with the verdict of the jury, except that the $2,000 for the said site is eliminated, and the value of the land found necessary to be taken is substituted for that of the whole tract at the price per acre found by the jury. Judgment was entered accordingly. Afterwards the defendants gave notice of a motion to set aside the judgment as provided in section 663, Code Civ. Proc. The court sustained an objection of the plaintiff to the hearing of said motion on the ground that proper notice was not given as required by section 6632, Code Civ. Proc. The court afterwards made and entered its

final judgment of condemnation authorizing the plaintiff to take possession of the land after reciting that the money due the defend

of the writ of mandate. It arrests the proceedings of any tribunal, corporation, board or person, whether exercising functions judicial or ministerial when such proceedings are without or in excess of the jurisdiction of such tribunal, corporation, board or person." The significance and scope of this legislative declaration have been considered many times by the higher courts. Among the cases the following will be found of interest: Raine v. Lawlor, 1 Cal. App. Dec. 352, 82 Pac. 688; Kinard v. Police Court, 1 Cal. App. Dec. 682, 83 Pac. 175; Maurer v. Mitchell, 53 Cal. 289; Talbot v. Pirkey, 139 Cal. 326, 73 Pac. 858. In the Maurer Case, supra, it is said: "At the common law the writ of prohibition was issued to restrain subordinate courts and inferior judicial tribunals from exceeding their jurisdiction. *** We are of the opinion that the writ mentioned in the Constitution is the writ of prohibition as known to the common law. Nor does the language of section 1102 of the Code of Civil Procedure require of us to hold that the office of the writ has been ex

tended or that it should now issue in cases

in which it could not have been resorted to

ants had been deposited in court as provided prior to the statute." The foregoing decision

in section 1253, Code Civ. Proc. Petitioners maintain that the court exceeded its jurisdiction in finding that a portion of the land described in the complaint was not required and in its modification of the verdict of the jury accordingly, in its refusal to hear the motion to set aside said judgment, and also in rendering its final decree of condemnation.

Respondent insists that a case for prohibition is not presented for three reasons: (1) Petitioners have a plain, speedy, and adequate remedy at law under the authority of many cases, among which are the following: Murphy v. Superior Court, 84 Cal. 594, 24 Pac. 310; Mines D'Or, etc., Soc. v. Superior Court, 91 Cal. 101, 27 Pac. 532; White v. Superior Court, 110 Cal. 58, 42 Pac. 471; Valentine v. Police Court, 141 Cal. 616, 75 Pac. 336; McAdoo v. Sayre, 145 Cal. 351, 78 Pac. 874; Carr v. Superior Court, 147 Cal. 227, 81 Pac. 515. (2) The acts challenged have already been consummated and the writ of prohibition is a preventive, and not a corrective. remedy. Valentine v. Superior Court, supra, and cases therein cited. (3) It does not appear that the court was without jurisdiction or acted in excess of its jurisdiction in any of the matters of which complaint is made by petitioners.

We pass by a consideration of the first two grounds above stated, as we feel satisfied that the record as presented would not justify us in holding that the court either has exceeded or is about to exceed its jurisdiction in the premises. We are not left in any uncertainty as to the nature and scope of the writ of prohibition. In section 1102, Code Civ. Proc.. it is defined as follows: "The writ of prohibition is the counterpart

was rendered under the old Constitution and prior to the amendment of 1881 to said section 1102, adding the words: "Whether exercising functions judicial or ministerial." The scope of said writ, however, has not been enlarged by said amendment. Camron v. Kenfield, 57 Cal. 550. The question under this application, then, is whether the superior court had the legal power to hear and determine the matters in the manner disclosed by the record. Ex parte Bennett, 44 Cal. 84; Sherer v. Superior Court, 96 Cal. 653, 31 Pac. 565. It cannot be controverted 653, 31 Pac. 565. that the court had jurisdiction of the subject-matter and of the parties. Section 1243, Code Civ. Proc.; Bishop v. Superior Court, 87 Cal. 226, 25 Pac. 435; Los Angeles v. Pomeroy, 124 Cal. 597, 57 Pac. 585. Again, the regularity of the proceedings of the court, if within its jurisdiction, cannot be reviewed on prohibition. Powelson v. Lockwood, 82 Cal. 613, 23 Pac. 143; Goddard v. Superior Court, 90 Cal. 367, 27 Pac. 298; Talbot v. Pirkey, supra.

All the allegations of the amended complaint were put in issue by the answer. Hence it was necessary to find upon every material averment. The necessity for the taking of the land or any portion of it was denied by the defendants. Petitioners made no demand that this issue should be submitted to the jury. In fact, petitioners are here contending that the only issue to be decided was as to the value of the land to be condemned and the damage to the residue, but we determine what the issues are by an inspection of the pleadings. As the privilege of submitting to the jury the other questions is deemed to have been waived, it became the

duty of the court to find upon them. Shepherd v. Jones, 71 Cal. 224, 16 Pac. 711; Montgomery v. Sayre, 91 Cal. 210, 27 Pac. 648; Reclamation District v. Thisby, 131 Cal. 574, 63 Pac. 918; San Francisco & S. J. V. R. R. Co. v. Leviston, 134 Cal. 418, 66 Pac. 473. Under the circumstances shown by the record the court not only had the jurisdiction, but it was its duty to determine the question of fact-whether any, and, if so, what, portion of the land was necessary for the purpose of plaintiff. So. Pac. R. R. Co. v. Raymond, 53 Cal. 223; City of Pasadena v. Stimson, 91 Cal. 253, 27 Pac. 604; Spring Valley W. W. v. Drinkhouse, 92 Cal. 528, 28 Pac. 681; City of Santa Ana v. Gildmacher, 133 Cal. 399, 65 Pac. 883. At most, petitioners might contend that the action of the court was irregular in reserving the question of necessity until after the jury rendered its verdict. The more orderly procedure would be for the court to have allowed the amendment proposed by plaintiff during the progress of the trial, or to have found upon the question of necessity before the issue of compensation was submitted to the jury. But, if the jury have sufficient information as to the proposed action of the court to enable it to act intelligently upon the issue of compensation and without prejudice to the substantial rights of the defendant, the reservation by the court of the decision of the question of necessity until after the verdict is rendered is not even erroneous, much less in excess of jurisdiction. Of course, no one would contend for the absurd proposition that the jury could determine the total value of the land to be taken without knowing its area, but there is no insuperable objection to a course that would leave to the jury the determination of the value per acre of a tract and to the court the number of acres necessary to be taken.

In reference to the procedure in similar matters, in the case of City of Los Angeles v. Pomeroy, supra, the court, speaking through the learned chief justice, said: "All other issues were tried by the court, and it was of no importance in what order they were decided, except in so far as a determination of one point was necessary as a basis for the determination of another. Undoubtedly it was necessary that the jury should be correctly instructed as to the quantity and extent of the estate and interest of the defendants in the land in order that they might correctly estimate its value, and, since *** that point was to be decided by the court, it was necessary that the jury should be informed before retiring what the conclusion of the court was, but that conclusion could be stated as well before as after the filing of formal findings of fact and conclusions of law." But if the court, deeming it unnecessary to announce its conclusion before the jury rendered a verdict on the question of value, should fail to do so, it would

not be a case for prohibition. Error might be predicated upon such action and a review be had of it in the proper proceeding, but it would not show excess of jurisdiction because the court has the legal power to make a wrong, as well as a right, decision upon the question whether it is necessary for the guidance of the jury for the court to decide the issue submitted to it or to announce its conclusion before the jury retires. The matter is one of expediency and orderly procedure rather than of jurisdiction.

Petitioners argue that the effect of the action of the court was to deny to defendants the benefit of a jury trial. Even so, under the decisions of the Supreme Court, a question of jurisdiction would not be involved nor would it constitute the occasion for prohibition. Clark v. Superior Court, 55 Cal. 199; Curtis v. Superior Court, 63 Cal. 436; Ex parte Miller, 82 Cal. 454, 22 Pac. 1113; Powelson v. Lockwood, supra; In re Fife, 110 Cal. 8, 42 Pac. 299. But petitioners are entirely mistaken in their construction of the action of the court below, and they seem to misapprehend the rule that must govern us in this proceeding in our examination of the record. We cannot impeach the verity of the recitals in the findings and judgment of the trial court, at least, unless it appears that there was no evidence to support them. But the verified answer of respondent discloses such support in the evidence. It is true that the pleadings of petitioners, verified by their attorney, makes emphatic denial of these representations, but that furnishes no justification here for annulling the judgment or pursuing the inquiry any further. The function of prohibition is not to determine the sufficiency of the evidence to support the findings. As said in Wreden v. Superior Court of Stanislaus County, 55 Cal. 504: "Any error committed in the decision of a motion can be saved by a bill of exceptions and be disposed of by appeal or any other method of review known to the law; but judicial acts which are the subject of review by these ordinary and adequate remedies are not the subject of prohibition." We are nevertheless asked to issue the writ, although we must accept as true the facts found by the court that the jury was fully informed that the plaintiff had abandoned any claim to a certain portion of tract No. 2, and that the court would pass upon the question of the amount of said tract that was necessary to be taken; that in view of this contingency the issue of compensation was submitted to the jury as embodied in propositions 3 and 4; that the residue of said tract 2 was amply sufficient for a wine. cellar as desired by the defendants; that there was substantial evidence to support the ruling of the court that the motion of defendants to vacate the judgment was not made as required by the statute; and that upon a sufficient showing the court deter

mined that notice of the final judgment of condemnation was properly given. This we cannot do.

Many cases are cited by petitioners relating to the different phases of the subject before us. We have examined them and we find nothing in any of them necessary to the decision militating against the views we have herein expresed.

The order to show cause is discharged, and the peremptory writ is denied.

We concur: CHIPMAN, P. J.; HART, J.

(6 Cal. App. 272)

FINCH v. McVEAN et al. (Civ. 253.) (Court of Appeal, Second District, California. Aug. 23, 1907.)



Code Civ. Proc. § 1005, provides that notice of a motion must be given if the court be held in the same county with both parties five days before the hearing, otherwise ten days. Section 1015 provides that, where a party has an attorney, the service of papers must be on the attorney. A nonresident plaintiff procured an attachment, and defendant moved for a dissolution thereof. Held, that plaintiff was not entitled to ten days' notice of the hearing of the motion: service of the notice on the attorney being sufficient.


menced to recover $7,500, "besides interest at the rate of 10 per cent. per annum from the 19th day of March, A. D. 1904, on the sum of $4,000, and interest at the rate of 7 per cent. per annum from the 30th day of December, 1904, on the sum of $3,500, and costs of suit." These are in accordance with the terms of the notes as pleaded in the complaint.

The ground of the motion to dissolve is that the writ of attachment was issued for a greater amount than that stated in the affidavit. Plaintiff objected to the hearing of the motion to dissolve on the ground that proper notice of the motion had not been given. In support of this objection, an affidavit showing that plaintiff was a nonresident was presented. It is claimed that the court was not held in the same county "with both parties," and therefore the plaintiff was entitled to 10 days under the provisions of section 1005, Code Civ. Proc., as that section stood prior to its amendment in 1907. This objection was properly overruled. Section 1015, Code Civ. Proc., provides that service of notices of this character shall be upon the attorney instead of the party, and it would be idle for the law to measure the time of notice by the residence of the litigant when the service is to be made upon his attorney. After the appearance of the party by attor ney, only such writs and process as affect the party as distinguished from the litigation are required to be served upon the party personally. Section 1015, Code Civ. Proc. Section 540, Code Civ. Proc., provides that the writ of attachment directed to the sheriff must require him to attach so much of the defendant's property "as may be sufficient to satisfy the plaintiff's demand, the amount of which must be stated in conformity with the complaint," etc. "The basis for the writ is the affidavit, and the clerk must look to that alone for the purpose of determining the amount for which the sheriff is to levy under the writ, as well as the amount for which an undertaking is given." Baldwin v. Napa Wine Co., 137 Cal. 649, 70 Pac. 732. The apparent inconsistency between this construction of the law and the provisions of section 540, Code Civ. Proc., above quoted, is conceded by the Supreme Court in the opinion in the case of De Leonis v. Etchepare, 120 Cal. 407, 52 Pac. 718, and the language of the section reconciled by a construction there given to it. The word "conform" as used in the secThe action was on two promissory notes tion is held not to be the equivalent of "idenof $4,000 and $3,500, bearing interest, respectical," but rather to mean "in correspondence tively, at the rates of 10 and 7 per cent. per in character and in harmony or congruity." annum. Both are set out in extenso in the Page 415 of 120 Cal., and page 721 of 52 Pac. complaint, and the prayer of the complaint This construction is approved in Baldwin v. is for $7,500, "with interest thereon accord- Napa, supra, and considered in declaring the ing to the terms of said promissory notes, rule to be that the clerk must look to the and costs of suit." In the affidavit for the affidavit alone. In the case at bar, the attachment the indebtedness is stated to be amount of the plaintiff's demand is stated "in the sum of seven thousand five hundred in the writ in strict conformity with the aldollars, besides interest." The writ of at-legations of the complaint. In this statement tachment recites that the action was com- the rates of interest and the dates from

Under Code Civ. Proc. § 540, providing that the writ of attachment must require the sheriff to attach so much of defendant's property "as may be sufficient to satisfy the demand, the amount of which must be stated in conformity with the complaint," the basis for a writ of attachment is the affidavit therefor, which must specifically state the amount of the indebtedness. and, where a complaint in an action on notes set out the notes, and demanded judgment for the principal with interest according to their terms, and the affidavit for attachment stated the amount of the indebtedness to be the principal of the notes "besides interest," and the writ of attachment recited the amount claimed in the complaint, the writ was issued for an amount in excess of the amount imported by the affi davit, and was properly dissolved on motion.

Appeal from Superior Court, Kern County; J. W. Mahon, Judge.

Action by John A. Finch against A. J. McVean and another. From an order dissolving an attachment, plaintiff appeals. Affirmed.

W. W. Kaye, for appellant. Fred E. Borton, for respondents.

TAGGART, J. Appeal from an order dissolving an attachment.

which it is to be computed are set out specifically, while neither rates nor time appear in the affidavit. There is nothing in the affidavit by which the amount of interest due can be determined, and the only indebtedness the amount of which is expressly set forth therein is the principal sum of $7,500. On the other hand, the sheriff is required by the writ to attach enough of defendant's property to satisfy a demand of $7,500, principal, and, as ascertained by computation, about $475 interest. While the same particularity of statement is not required in an affidavit for attachment that is required in a pleading, this rule does not extend to the matter of the indebtedness. The amount of the indebtedness to the plaintiff is the principal and all important element in the affidavit. Bank v. Boyd, 86 Cal. 388, 25 Pac. 20. The amount stated therein determines how much of defendant's property the sheriff is to seize, and this, in turn, limits the amount for which an undertaking may be demanded by the sheriff to prevent or release the attachment. Baldwin v. Napa, supra; section 540, Code Civ. Proc. Under the construction given to the statute by the case last cited, we do not think the interest can be treated as a mere incident to the principal. Nor can an attachment be sustained which requires the taking of more of a defendant's property than is requisite to secure the indebtedness stated in the affidavit.

An attachment proceeding is not a part of every civil action brought to recover on a contract for the direct payment of money. It is a provisional remedy to be used by the creditor at his election to make the property of the debtor available for the execution of any judgment that may be obtained in the action. It is initiated by an affidavit (in case of residents) setting forth the amount of the indebtedness due to plaintiff from defendant over and above all legal setoffs or counterclaims, upon a contract, for the direct payment of money, payable in this state, which has not been secured by mortgage, pledge, or lien, or, if secured, the security has become valueless. In stating a cause of action in a complaint, it is not necessary to state under oath the amount due, nor to allege that the amount of indebtedness stated is over and above all legal set-offs or counterclaims, or that the indebtedness has not been secured, but only indebtedness so qualified under oath can authorize the issuance of an attachment. The clerk, before issuing the writ, must see that the affidavit complies with the provisions of the statute and that the indebtedness therein stated, and so qualified, is supported by the statement in the complaint of an attachable cause of action for the direct payment of money, in an amount equal to or greater than the amount stated in the affidavit. Upon receiving the proper undertaking, he must then issue the writ for the amount stated in the affidavit. No indebted

ness not covered by the affidavit can be included in that for which the writ issues.

There is nothing in O'Conor v. Roark, 108 Cal. 173, 41 Pac. 465, in conflict with the view here taken. In the statement of the contract in the affidavit for an attachment in that case there appeared the date of maturity of the obligation upon which the attachment rested, and the amount stated would be presumed to draw the legal rate of seven per cent. from that date. The demand set forth in the writ was well within that averment of the affidavit, and stated the amount demanded in the complaint. Conceding, for the sake of argument, that in the affidavit in the case at bar the words "with interest" imply the egal rate, and that we may look to the complaint to ascertain the date of maturity, there yet remains the variance and excess over the amount stated in the affidavit caused by one of the notes bearing interest at the rate of 10 per cent. per annum.

The writ, therefore, issued for an amount in excess of that stated in the affidavit, and in excess of any amount that might be imported into the affidavit by any of the theories suggested. The ruling of the superior court was proper, and should be sustained. Order appealed from affirmed.

We concur: ALLEN, P. J.; SHAW, J.

(6 Cal. App. 261) SCHAMBLIN v. MEANS et al. (Civ. 349.) (Court of Appeal, Second District, California. Aug. 20, 1907.)




An attempt to amend sections of the Code after their repeal at the same session of the Legislature is ineffectual.


Where the law did not require a certificate of sale for taxes, the provision that the recitals in the certificate should be embodied in the tax deed was inoperative, and a compliance therewith was unnecessary.

3. SAME-VALIDATING TAX DEEDS-STATUTES. The act of 1903, legalizing tax certificates and deeds to the state for nonpayment of taxes, is applicable to a tax deed executed June 28, 1901, and showing in its recitals that the tax sale was made on June 27, 1896.

4. SAME.

Land was sold to the state for nonpayment of taxes on June 27, 1896. The deed to the state was made June 28, 1901, and the deed from the state to a purchaser was dated January 14, 1902. Held, that the act of 1903, validating tax certificates and deeds, operated to make good the tax deed as of the date it was made. and cured defective proceedings prior thereto.

Appeal from Superior Court, Kern County; J. W. Mahon, Judge.

Action by Gus Schamblin against T. A. Means and others. From a judgment for defendants and from an order denying a motion for a new trial, plaintiff appeals. Affirmed.

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