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cause at all. But the superior court had original jurisdiction of the subject matter, and, * * * having jurisdiction over the subject matter, the court obtained jurisdiction over the parties when, without objection, they proceeded to trial upon the main issue. *

The proper procedure would have been for the superior court to have set aside the judgment, and ordered the police court to reinand the cause in accordance with section 838." There is nothing in the opinion in Hart v. Carnall-IIopkins Co., 101 Cal. 100, 3:l'ac. 633, to modify this statement of the law. See, also, Arroyo Co. v. Superior Court, 92 Cal. 47, 28 Pac. 54, 27 Am. St. Rep. 91.

In the case at bar, if a question of title or possession of real property be involved, the parties are not proceeding to trial without objection, and in such a case the superior court has no jurisdiction at all. Veither original by consent, or process, nor appellate because appellant failed to comply with the statutory requirements in attempting to appeal from the judgment in the justice's court.

It is proper, therefore, that a writ issue from this court prohibiting the superior court of Kings county from proceeding with the trial of said cause, and it is so ordered.

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

makes application to this court for a writ of prohibition to prevent the superior court of Kings county from proceeding with the trial of said cause.

We have stated the matter at length, since we think the mere statement of the facts give ample reasons for the issuance of the writ as prayed for. Conceding the last undertaking filed to be sufficient in form and to have been filed in the proper court, it was ineffectual to perfect the appeal, as it was not filed within 30 days after the rendition of the judgment. Sections 974, 978, Code Civ. Proc.; Coker v. Superior Court, 58 Cal. 178. The justification of the sureties on the first undertaking having been abandoned, the appeal taken was "not effectual for any purpose" after May 25th (30 days from the rendition of the judgment). The proceedings to justify on the only undertaking given within the statutory time extended that time only for the purpose of justification, and did not operate to give additional time within which a new and independent undertaking might be filed. The sureties having failed to justify, the appeal must be regarded as if no such undertaking had been given. Bennett v. Superior Court, 113 Cal. 442, 45 Pac. 684, 54 Am. St. Rep. 354. There was nothing before the superior court until the undertaking was filed, and, until the sureties justified, the cause remained in the justice's court. McCracken v. Superior Court, 86 Cal. 76, 24 Pac. 845. By the appeal attempted to be taken the superior court acquired no jurisdiction to entertain any proceeding in the case except a motion to dismiss the appeal.

It is unnecessary in ruling upon this application to determine whether or not the verified answer filed in the justice's court raised an issue involving the title or possession of real property. Conceding that it does, it would not give the superior court jurisdiction of the appeal here in question. None of the authorities cited hold that a party can be brought within the jurisdiction of the court against his consent by any other than the statutory method. In the case of Santa Barbara v. Eldred, 95 Cal. 378, 30 Pac. 562, an application for a transfer to the superior court was made to the police court on the statutory grounds provided by section 838 of the Code of Civil Procedure, and the application denied, the cause was tried by the police court, and an appeal from the judgment taken to the superior court. The case was tried in the superior court without objection, and the question of whether the jurisdiction exercised by the superior court was original or appellate was under consideration by the Supreme Court on an appeal to that court from the judgment rendered by the superior court. The court says: "The police court had no jurisdiction to try the cause upon the merits, and it necessarily follows that the superior court had no appellate jurisdiction to try the

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(5 Cal. App. 773) NELSON V. MCCARTY. (Civ. 370.) (Court of Appeal, Second District, California.


Evidence in an action for negligently injuring plaintiff by firing a revolver held to sustain a finding that the shot fired by defendant did not cause plaintiff's injury.

[Ed. Note. For cases in point, see Cent. Dig. vol. 48, Weapons, $ 34.] 2. APPEAL-REVIEW-CONCLUSIVENESS OF FINDING.

A finding on conflicting evidence will not be disturbed on appeal.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 3, Appeal and Error, $$ 3935–3937.]

Appeal from Superior Court, San Diego County; E. S. Torrance, Judge.

Personal injury action by S. A. Nelson against F. W. McCarty. Plaintiff appeals from a judgment for defendant and an order denying a new trial. Affirmed.

L. E. Dadmun, for appellant. T. L. Lewis and Daney & Lewis, for respondent.

ALLEN, P. J. Appeal by plaintiff from a judgment in favor of defendant, and from an order denying a new trial.

This action is one for personal injuries alleged to have occurred through the wanton, reckless, and negligent act of defendant in firing a revolver toward and in the direction of plaintiff, by reason whereof he was wounded and injured. The answer, among other

things, denies the firing of any revolver or

(6 Cal. App. 34) firearm by defendant toward or in the di- DURPHY v. PEARSALL. (Civ. 296.) rection of plaintiff, or the wanton, reckless, (Court of Appeal. Third District, California. or negligent firing of a revolver at any time,

June 27, 1907.) or in any direction whatever by (lefendant, 1. PARTNERSIJIP-ACCOU'XTIXG-Issl'ES-FINDand denies that any bullet firell or discharged


Where, in a suit for a partnership accountfrom the revolver of defendant hit or in

ing, the complaint alleged that the profits acjured the plaintiff. The cause was tried by crued and to accrue to the firin, as would apthe court without a jury, and the court found

an accounting and settlement of the that the defendant did not at the time al

firin business, would amount to a specified sum,

and prayed that an accounting be taken of all of leged in the complaint, or at any other time, the partnership transactions, the matter of a or at all, carelessly or negligently fire or complete accounting was a material issue, and discharge any revolver toward or in the di

the failure of the court to find on it in making

findings in favor of plaintiff, based on a part rection of plaintiff, or on the date mentioned

of the transactions, was erroneous. or at any time carelessly, wantonly, reckless- 2. APPEAL – REVIEW – DECISION AGAINST ly, or negligently fire or discharge any re- LAW. volver or other firearm, and that no bullet

Where, in a suit for a partnership account

ing, the matter of a complete accounting was a fired or discharged by the defendant from his

material issue, and the court failed to find on revolver, or any other revolver or other fire- it, but made findings in favor of plaintiff based arm, fired by defendant, struck said plaintiff on a part of the transactions of the partner

ship, the findings were against the law and reor entered said plaintiff's leg.

viewable on appeal. From the bill of exceptions, it appears that a horse attached to a buggy, in which was

Appeal from Superior Court, Humboldt

County ; E. W. Wilson, Judge. seated a woman, was running at a great rate

Action by B. F. Durphy against C. E. Pear. of speed through the public streets of San

sall. From a judgment for plaintiff, defendDiego; that the bridle of such horse had become disarr:inged, and the woman had lost all

ant appeals. Reversed. control over the animal; that the defendant

J. N. Gillett, ... W. Hill, W. T. S. Hadley, was a policeman in the city of San Diego, and Edwin S. Easley, for appellant. J. H. G. and fired a shot from a revolver at the horse

Weaver, H. L. Ford, L. M. Burnell, and Wilfor the purpose of so disabling it as that it liam Kehoe, for respondent. might be gotten under control. It further appears from the record that another shot

BURNETT, J. The action is based upon was fired by another policeman at the same

an alleged partnership between plaintiff and

defentiant. horse about the same time, and there is

Among other things, the plainevidence in the record tending to show that

tiff prays "that an account be taken of all a third shot was fired at the horse within

of said copartnership dealings and transacthe same block. That plaintiff was injured

tions from the commencement thereof and by a bullet from one of the three shots is

of the moneys received and paid out by plainnot to be questioned. But there is ample tes

tits and defendant for and on account of said timony in the record to justify the court in

copartnership." The juigment was against finding that the shot fired by defendant was

defendant for $6,048.91. Defendant has up

pealed from the judgment, illnd also from an not the cause of any injury to plaintiff.

order denying his motion for a new trial. There is sore testimony which indicates that, from the very situation of the parties at the

These appeals are presented in separate

transcripts, but we shall consider them totime of the firing of the shot by defendant,

gether. All the points maile by appellant exit was not possible for the shot fired from his revolver to have in any wise affected the

cept two seein to be satisfactorily answered

by respondent. As to those two proposiplaintiff. The most that can be said in favor

tions, however, respondent has not attemptof appellant's position is that there is some

ed in his brief to afford the court any assist(ontlict in the testimony; but the rule is

ance, and it cannot be said that the points well established that, where the testimony

are unimportant. is conflicting an appellate court in support

The first is that "the court's finding of fact of the decision of the court below will con

No. 15, to the effect that appellant's net strue the testimony as favorably as possible

profits from the IIenry deal were $16,196.41, for the respondent, and will not disturb a

is not justified by the evidence.” According judgment or verdict when there is a sub

to appellant's figures, the gross profits from stantial conflict in the testimony, even though

the sale of the 13,000 acres in the Ilenry deal the appellate court may consider it greatly

were $38,000 and the expenses were $:33,300, against the weight of the evidence. Under

and since adınittedly plaintiff was only inthis rule, it is unnecessary for us to discuss

terested in the sale of 10,010 acres, the proany other questions presented upon the ap

portional net profit in which he is entitled to peal.

share is about $3,500, instead of $10,190.41, as The judginent and order are affirmed.

found by the court. There is undoubtedly

some evidence to upholl appellant's contenWe concer: SILAW, J.; TAGGART, J. , J

tion in this regard, and respondent might well have called our attention specifically to them, it is expressly found that the settlethe evidence upon which he relies to support ment of April 3d was only a partial settlethe finding.

ment of the copartnership, matter. Again, appellant claims "that there is an- It seems clear, therefore, that the doctrine other error in the same finding where the announced in Albery v. Geis, 1 Cal. App. 381, court subtracts $0,215.10, advanced by defend- 82 Pac. 202, and Clark v. Hewitt, 136 Cal. ant to plaintiff from the gross profits, instead 77, 68 Pac. 303, demands a reversal of the of from the net one-half belonging to the case. The reason for the rule demanding plaintiff.” Appellant's position would be an accounting is stated in Story on Partner sound if it appeared that the $0,215.10 were ship, $ 221, as follows: "Until all the partadvanced from the separate funds of defend- nership concerns are ascertained and adjustant, but, on the contrary, the finding shows ed it is impossible to know whether a particuthat it was a part of the partnership funds, lar partner be a debtor or a creditor of the as it was realized from the llenry sale. firm ; for, although he may have advanced There appears to us, however, to be a mistake large sums of money on account thereof, he in the figures, which seems to have escaped may be indebted to the firm in a much larger the attention of counsel and the learned trial amount." The matter of a complete accountjudge. The said finding 15 discloses that de- ing, therefore, was a material issue, and, the fendant received of the partnership funds court having failed to find upon it, the decithe sum of $16,196.41; that plaintiff received sion is against law, and may be reviewed on $6,215.10 advanced by defendant and $11,000 appeal. Adams v. Helbing, 107 Cal. 301, 40 from the Hammond deal, making a total of Pac. 422; Clark v. Hewitt, supra; Senior y. $17,215.10. The total amount received by Anderson, 138 Cal. 721, 72 Pac. 319. plaintiff and defendant was thus $33,411.51. The judgment and order are reversed. If they were to share equally, each would be entitled, therefore, to $16,705.75. But, We concur: CUIPMAN, P. J.; HART, J. under the agreement of April 3, 1900, defendant, out of his share, was to pay plaintiff

(5 Cal. App. 771) $3,500. Add this amount to $16,705.75, and

DEMING v. GAMBLE. (Civ. 358.) we have $20,205.75, the sum plaintiff should receive. But he had already received $17,

(Court of Appeal, Second District, California.

June 20, 1907.) 215.10. The difference, or $2,990.05, is the amount for which he should have judgment,


Where, in a suit by a husband against the assuming that the record discloses no other administ rator of his wife for a decree adjudging defect.

that land standing in the name of the wife is Finding 16, which we must assume is based

community property, there was no evidence that

the husband knew the contents of the petition upon the figures found in finding 15, is "that

for administration of the estate of the wife, defendant has received in excess of his share averring that the land was her homestead and of said partnership funds the sum of $6,

her property at the time of her death, which pe098.41, which said excess belongs to plain

tition was signed and sworn to by defendant,

the petition and a waiver attached by the hustiff herein.” It may be that other transac- band of his right to administration and a retions were taken into account, but the find- quest for defendant's appointment were inadmisings do not disclose them. It must be mani.

sible as admissions against interest. fest, however, we think, that there ought to

[Ed. Note:-For cases in point, see Cent. Dig.

vol. 20, Evidence, 714.] have been a complete accounting as prayed for by plaintiff. The judgment might then

Appeal from Superior Court, Los Angeles

County; W. P. James, Judge. appear to be correct. Respondent suggested in the oral argu

Action by H. C. Deming against F. G.

Gamble, administrator of Mannie Deming, ment that a complete accounting was not necessary, as the “Hammond and Henry"

deceased. From a judgment for defendant deals were the only ones involved in the ac

and from an order denying a new trial, plaintion. We must look, liowever, to the plead

tiff appeals. Reversed and remanded for new

trial. ings to determine what questions are submitted to the court for decision. To indicate the Valentine & Newby, for appellant. Geo. · scope of such inquiry, we refer to paragraph 3. Adams and Hugh J. Crawford, for re15 of the complaint: “And the plaintiff al- spondent. leges, on information and belief, that the profits accrued and to accrue to said copart- ALLEN, P. J. Appeal by plaintiff from a nership between plaintiff and defendant as judgment and an order denying a new trial. will appear upon a true accounting and settle This action was brought by the plaintiff ment of said copartnership business, will against defendant as administrator of the amount to the sum of $131,000, one-half of estate of plaintiff's deceased wife, the obwhich belongs to and of right ought to be ject of which was to have it adjudged that paid to plaintiff herein." Besides, it appears certain premises, to wit, lot 44, Park Villa from the findings that there were other trans- tract, and lot 45, Angelus Vista tract, in Los actions of the partnership, but no account is Angeles city, all of which stood in the name taken of them as far as we are advised; and of the wife at her decease, were community as emphasizing the importance of considering property. The court found that all of the

premises described were purchased by the The Judgment and order are reversed, and husband and the purchase money paid by bim cause remanded for a new trial. out of the funds of tbe community, and that the principal part of the improvements upon We concur: SHAW, J.; TAGGART, J. lot 45 had been paid for by him after the decease of the wife; that, as to lot 44, the title

(6 Cal. A. 33) was in the wife in trust for the community,

GUPTILL v. KELSEY. (Civ. 329.) but that lot 45 was conveyed to the wife by (Court of Appeal, Third District, California.

June 20, 1907.) way of gift from the husband, and was her separate estate. From this judgment in 1. TaxatioN-DELINQUENT TAXES–ENFORCE

MENT. favor of defendant as to the said last-men

St. 1891, p. 223, c. 161, authorizing the estioned lot, and from an order denying a new tablishment of sanitary districts with power to trial, plaintiff appeals upon a bill of excep- levy taxes on property within the districts, pro

viding for the collection of the taxes by the tions.

county tax collector in the manner he collects All of the evidence introduced by defend the county taxes, declaring that the laws relatant tending to rebut that of plaintiff, in his ing to the collection of taxes and enforcement of effort to overcome the presumption created delinquent taxes shall apply, and empowering

the board to provide a system for the collection by the deeds, was in the nature of admis- of delinquent taxes, etc., points out the manner sions of plaintiff against interest made before in which the tax collector of a county shall coland after the decease of the wife. The trial lect such taxes, but authorizes the board to col

lect the taxes through its own agent, pursuant to judge, under objections and exceptions, per- such regulations, consistent with the laws of the mitted the defendant to introduce in evi- state, as it may adopt. dence a petition for letters of administration 2. SAME_Tax SalE-VALIDITY. signed and sworn to by defendant, in which

The failure of the tax collector of a county petition it is stated that lot 45 was the

to comply with Pol. Code. $$ 37011-3766, 3709,

as amended in 1895 and 1897, and section 3785, homestead of deceased and was her property

as it existed prior to the statutes of 1895 and at the time of her decease, and of the value 1897, relating to the sale of property for delinof $11,000. To this petition was attached a

quent taxes, in collecting delinquent taxes as

sessed by a sanitary district established under written waiver on the part of the husband,

a statute of 1891 is fatal to the validity of a plaintiff herein, of bis right to administer, sale made in 1899, and his deed to the purchaser and a request for defendant's appointment. is void. There was no preliminary proof tending to 3. SAME-REMEDY OF OWNER.

An owner whose land is sold for delinquent show that plaintiff had ever read the peti- sanitary district taxes without complying with tion signed by defendant, or had knowledge the law may sue for the cancellation of the un. of its contents, when he signed the waiver recorded tax deed purporting to convey the land so attached. The appointment and qualifica by proceeding under Civ. Code, $ 3412, provid

ing that a written instrument which, if left outtion of defendant as administrator was not standing, may cause injury to a person against in issue. The court in overruling the objec- whom it is void may on his

application be adtions made to the introduction of this paper judged void and canceled, and he need not pur

slie the remedy provided by Code Civ. Proc. § upon the grounds of its immateriality and 738, providing for action to quiet title by perincompetency must be taken as having con- sons against others claiming interest in real essidered that the statement of ownership tate adverse to them. therein made by the defendant was material

Appeal from Superior Court, Alameda and competent, and that plaintiff by signing County; W. E. Greene, Judge. the waiver thereto attached became bound by Action by Mary E. Guptill against B. Kelsuch declarations. We think the court erred

sey. From a judgment for plaintiff, defendIn admitting this paper writing in evidence. ant appeals. Afirmed. The waiver signed by the husband is not

Mortimer Smith, for appellant. Gavin Mca part of the petition, and that it was there

Nab, for respondent. unto attached was of no significance. The waiver might well have been upon a separate

HART, J. The complaint in this action Instrument, in which event there would be

alleges that, at the time of the institution of no room for controversy in relation to the

the suit, the plaintiff was the owner and admissibility of the petition. The mere ap- seized in fee of certain real property situatpending of the waiver to an instrument, the ed within the boundaries of "sanitary district contents of which were unknown, could not

No. 2, Fruitvale, county of Alameda, a corhave the effect to conclude the party signing poration organized under the laws of the the waiver as to the facts alleged in the state of California,” and that said real petition.

property was sold in the year 1899 by the The oral evidence appearing in the record tax collector of Alameda county to the deIs most conflicting, and we cannot say from fendant, for unpaid and delinquent taxes assuch record that the findings of the court as sessed thereon by and for said sanitary dis

trict No. 2, and that a tax deed to said have been the same had this petition not been lands was executed by said tax collector to considered and due weight given it as an said defendant on the 13th day of July, 1901. admission against interest. The error, there- It is alleged that "said deed has never been fure, in our opinion, was prejudicial.

recorded, and that the plaintiff has never

to the separate character of this lot 45 would tri

seen the same," and that "plaintiff is inform- object of the law appears to be the authorizaed and believes, and upon her information tion of the establishment of sanitary districts and belief alleges, that said tax deed is in such communities for the purpose of inregular in form, and purports to convey vesting them with such corporate rights as title of all of said described lands to the will the more effectually enable the residents defendant, B. Kelsey," etc. It is charged thereof to promote and maintain healtlıful in the complaint that several of the statutory sanitary conditions within the boundaries provisions prescribing the steps necessary of such districts. Such corporations have to be taken in order to effectuate a valid sale no power of course, except such as the of property for delinquent taxes were not, Legislature has legitimately clothed them in the sale by the tax collector of the prop- with. While they are public corporations, erty in question, complied with, and that, they are not municipal corporations. In res therefore, such sale was void. It is averred Werner. 129 Cal. 567. 62 Pac. 97. The law that the price paid for the property to the from which they derive their right to exist tax collector by the defendant was the sum provides, among other things, for the lerying of $3.39, and that prior to the commencement of taxes for the accomplishment of their of the action plaintiff "tendered in gold coin corporate purposes upon all property within the sum of $3.39, with interest thereon, from their boundary lines, and also provides for the 3d day of July, 1899, and the sum of $3 the incurring of a bonded indebtedness in a additional, the said latter sum being the limited amount. The provision with refersum defendant paid to said tax collector ence to the collection of the taxes levied aufor the issuance of said pretended deed, with thorizes two methods, either of which may, interest thereon from the 13th day of July, in the discretion of the sanitary boardi, be 1901, and plaintiff offered to pay to said resorted to for the purposes of such collecdefendant the foregoing sums of money, and,

tion. It is this provision which furnishes the in addition thereto, any additional sums that principal one of the several reasons upon defendant might make known to the plaintiff which the defendant bases his charge in the that he had expended on account of or by special demurrer and his contention in argureason of said pretended tax deed, with in- ment that the complaint is faulty because terest thereon, provided defendant would de- of uncertainty. The provision referred to is liver to plaintiff said pretended tax deed, found in section 12 of the act, and reads as or cancel said pretended tax deed," and that follows: “On or before the first Monday in "defendant refused to accept said sums of July of each year, the board shall transmit, money and refused to deliver to plaintiff or cause the assessor to transmit, a duplicate said pretended tax deed, or to cancel the

of the list so made to the tax collector of same, and still so refuses." It is further the county, who shall collect the taxes shown declared that plaintiff is ready and willing by said list to be due, in the same manner as to pay into court for the benefit of the de- he collects the county taxes, and all the fendant the sums of money tendered by plain- provisions of the laws of the state as to tiff to defendant before the commencement the collection of taxes and delinquent taxes, of the suit, or “any sums of money that this and the enforcement of the payment therecourt may find as having been expended by of, so far as applicable, shall apply to the defendant by reason of said pretended tax, collection of taxes for sanitary purposes; and or said pretended tax deed, with interest on said tax collector, and the sureties on his said sums, and any other sums, or costs or official bond, shall be responsible for the expenses that said detendant may be found due performance of the duties imposed on by this court to have expended or incurred in him by this act; provided, that the sanitary the matter of said pretended tax, or said board may, in its discretion, direct the pretended tax deed, with interest thereon." district attorney of the county to commence The defendant interposed a general and a spe- and prosecute suits for the collection of cial demurrer to the complaint. The special


the whole, or any portion, of the delinquent: demurrer charges that the complaint is un- taxes: and it shall be the duty of the dis(ertain in several specified particulars. The trict attorney to carry out such directions demurrer was overruled by the court, and, of the sanitary board, and he, and the surethe defendant failing to answer the com- ties upon his official bond, shall be responsible plaint within the time granted him by the for the due performance of the duty imposed court, a judgment by (lefault was entered upon him by this act; and provided further, against him. The appeal is from said judg- that the sanitary board may, at any time. nent.

by order enforced in its minutes, provide a The Legislature of 1891 passeil a law em- system for the collection of delinquent taxes, bracing a scheme for the establishment of or make any change in the manner of their sunitary districts throughout the state, the collection, which as to such taxes shall have manifest purpose of which is to enable com- the force of law. All money collected for munities consisting of small numbers of in- sanitary purposes by the district attorney habitants to exercise, under corporate au- under this act shall be at once paid to the thority, to a limiteul extent, certain portions county treasurer." Laws 1991, p. 227, c. 161. 01? the police power of the state. The main The specitic contention is that where a law

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