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settled by our decisions that one attempting | of the amount to which they were so entitled, to rescind a transaction on the ground of fraud is not required to restore that which, in any event, he would be entitled to retain. See Matteson v. Wagoner, 147 Cal. 739, 743. 82 Pac. 436, and cases there cited. This is upon the theory that the defendant could not possibly have been injuriously affected by the failure to restore, and the plaintiff might be; for he might not be able to again collect the amount from the defendant, if it should be so restored to the defendant. One of the exceptions recognized in Kelley v. Owens, supra, is where, without any fault of plaintiff, there have been peculiar complications which make it impossible for plaintiff to offer full restoration, although the circumstances are such that a court of chancery may by a final decree fully adjust the equities between the parties. See, also, Thackrah v. Haas, 119 U. S. 499, 7 Sup. Ct. 311, 30 L. Ed. 486; Wills v. Porter, 132 Cal. 516, 521, 64 Pac, 896. Another exception recognized by this court is that of the case where the taking of an account is necessary for the ascertainment of the sum to be repaid. or the sum is to be liquidated by an adjudication based on evidence of facts independent of the terms of the contract itself.

In such a case, as the plaintiff cannot determine in advance of the suit the amount by him to be repaid, an offer to refund such sum as shall be decreed is a sufficient offer to do equity. Sutter St. R. R. Co. v. Baum, 66 Cal. 44, 4 Pac. 916. The authorities fully sustain the proposition that an offer to restore before action is not essential where the rights of the other party can be fully protected by the decree, and such restoration cannot be made without injuriously affecting the rights of the party seeking rescission, or the relative rights of the parties in the event of a rescission cannot be determined without an accounting. The statute itself dispenses with the necessity of such an offer, where the other party is himself unable to restore what he has received. In such event an offer on the part of the rescinding' party would be a vain thing, and the respective rights of the parties can be fully guarded by the decree.

We think it is manifest that this case falls within the exceptions to the rule as to restoration or offer to restore. If their claims in regard to the contract were well founded, plaintiffs were entitled. upon delivery to Pietra of the property transferred to them, to receive, not only the money and obligations they had given therefor, namely, the $50,000 and the 64 bonds of the corporation, but also such amounts as they had properly expended in the management of the property in accordance with their contract with Pietra, who had himself received all the proceeds. They were entitled to be reimbursed for all amounts they had properly expended under their contract with Pietra, and thus put in the position they occupied at the time of entering into the same. An accounting was undoubtedly essential to the determination

for no one could undertake to determine that amount in the absence of such an accounting. A restoration of the property received by them, viz., the possession of the property and the title thereto, subject to the trust deeds and other incumbrances, upon the restoration of the property received by Pietra from them, namely, the $50,000 and the 64 bonds, would not have reimbursed them as to any portion of the amount so expended. We think, too, that they were entitled to look to this property for such reimbursement, and for protection against such outstanding bonds as could not be recovered, and, consequently, entitled to retain possession of it for that purpose until the amount due them could be determined and their rights protected in a proceeding in which the rights of Pietra also could be fully guarded. In addition to this, we think it sufficiently appears from the allegations of the complaint that Pietra himself was, at the time of the commencement of this action, unable to restore certain of the property received by him from the plaintiffs, namely, certain of the bonds of the corporation which had been transferred to other parties. As is said by plaintiffs' counsel, the facts of this transaction are exceedingly complicated. and it is very clear that the terms upon which a rescission should be had, and the property received restored, can only be determined upon a judicial investigation, in which the rights of all the parties can be fully guarded. We are therefore of the opinion that the circumstances shown by the complaint fully justify the failure of plaintiffs to offer to restore possession of the property before the commencement of the action, and bring the case within those classes of cases in which no such offer is necessary as a condition precedent to action.

Under the facts of this case, it is clear that there was no undue delay on the part of plaintiffs in moving for rescission. Their delay of some three months in commencing this action was fully excused by the allegation showing the commencement of a similar suit in the United States Circuit Court under the misapprehension that Pietra was a citizen of California, and the dismissal of the same by the court upon the plea made by him. that he was a subject of the kingdom of Italy. If we concede that notice of rescission was a condition precedent to action, we are of the opinion that such action in the Circuit Court was a sufficient notice to satisfy all requirements as to this action.

As we read the brief of counsel for the defendants, it is not contended that the complaint fails to state a cause of action against any defendant, other than as to the matters hereinbefore discussed, except as to defendants Power and Foster as trustees under the trust deed. It is claimed that, as the supplemental and amended complaint shows that, after the commencement of the action. they sold the property to Pietra under the terms

of the trust deed, and. so far as appears, in full accord therewith, and delivered possession thereof to him, and no longer make any claim thereunder, such complaint fails to state a cause or action against them. Herein counsel fail to note the distinction between a complaint and a supplemental complaint. Although in this instance they are both incorporated into one document, styled an "amended and supplemental complaint," and the supplemental complaint is distinguished only by being contained in separately, but consecutively, numbered paragraphs, they are, nevertheless, to be considered as separate pleadings. The complaint, whether original or amended, can properly speak only of things which occurred either before or concurrently with the commencement of the action. The office of a supplemental complaint is to bring to the notice of the court and the opposite party things which occurred after the commencement of the action, and which do or may affect the rights asserted and the relief asked in the action as originally instituted. If, upon the conditions existing when the action was begun, Power and Foster were proper parties to the action, they do not become improper parties, in the sense that they were improperly joined, by reason of the fact that after the action was begun they parted with their interest in the subject-matter and thereby terminated their liability. The propriety or necessity of joining them was a matter which the plaintiffs were obliged to determine when the action was begun. Having been properly joined as parties, as matters then stood, they are proper parties to the action thereafter, until something occurs which dispenses with their further presence, in which case the proper course is to dismiss the action as to them, and not to sustain a demurrer to the complaint because of the supposed improper joinder. In such a case the sufficiency of a complaint, with respect to the question of the proper joinder of all the parties originally included, is to be determined by reference to the facts existing and disclosed by the complaint at the beginning of the action. At the time this action was begun Power and Foster still held the title to the property involved in the action, and they were properly joined. While the sustaining of a demurrer on this ground is often a convenient way of excluding a party from further participation in the case, practically equivalent to a dismissal, and therefore to be deemed harmless error, it is not the technically correct method of dealing with the proposition that such party is no longer interested in the outcome of ne action, nor liable to judgment therein. Such joinder is not a matter of which the other parties can complain, unless it causes additional cost to them. 15 Ency. Pl. & Pr. p. 698. We can perceive no harm that can result from their retention as parties, especially in view of the power of the court to adjust the costs so that, if their presence proves to be un

necessary, the costs of bringing them in and keeping them in shall fall on the plaintiffs.

We think, however, they are proper parties to the action, although they have divested themselves of title to and possession of the property. They are charged with complicity in the frauds perpetrated and in the conspiracy by which it was carried out. It is possible that, upon the accounting, the presence of the trustees in court, or the continued jurisdiction of the court over them, may be necessary to fully accomplish the relief necessary to protect the plaintiffs, or to enforce their rights. Their expenditures as trustees will necessarily come under review, and certain claims made by them as trustees or otherwise must needs be settled and provided for, if found just, and they are proper parties to any investigation of those subjects.

The joinder of Scott as a plaintiff was not, under the rules prevailing in courts of equity, a fatal misjoinder. It is true that the corporation plaintiff is the only party shown to be entitled to affirmative relief, and that it is the party in whom the cause of action is vested: but it appears that the plaintiff Scott holds bonds of the plaintiff corporation of the face value of $5.000, which were a lien upon the property, and $50,000 of its stock, and that in order to effect a complete rescission it may become necessary or desirable to have this stock and all these bonds produced and canceled, or transferred to the defendant Pietra, and this is a part of the relief asked. Scott offers to deliver them up for that purpose, or for any disposition of them which the court may deem proper. He would be a proper party defendant, in order to answer as to any title he may have to them, or to oppose or advocate any proposed disposition of them; and, if some disposition of them is essential to complete relief, he would be a necessary party. He, of course. took them with knowledge of the facts, except the alleged fraud of the defendants. If he desires now to make common cause with the plaintiff corporation, which is for many purposes his agent, and in which he holds the majority of stock, and makes profert of the stock and bonds for the purposes of the suit, it is im

material to the other defendants whether he is plaintiff or defendant. A court of equity can mold its decree to suit the exigencies of the case, and may determine the ultimate rights of the parties on either side as between themselves or the opposing party and render a decree accordingly. 15 Ency. of Pl. & Pr. 672, 673. Inasmuch as the effect of Dining him as plaintiff was to avoid the cost of service of process upon him, if he was a necessary or proper party, it was to that extent beneficial to the defendants, if the plaintiffs should prevail and recover their costs. It is unnecessary to consider further the question of the misjoinder of parties. The distinct relief asked as to some of the defendants is incidental to the main case, and

necessary to effect a complete settlement of the matters involved in the transaction sought to be rescinded. All of the defendants were properly joined. There is really but one cause of action stated, and hence there is no misjoinder of causes of action.

A motion to strike out certain parts of the complaint was sustained. It is alleged in the complaint that certain sums were paid by the plaintiff on account of the transaction, including interest to the defendant Pietra, expenses of operating the ranch, and expenses of agents transacting the business, and that certain claims are outstanding against the said plaintiff for similar expenses and other expenses incurred in the enterprise. some of which are in dispute, and that all these moneys were paid out and these liabilities incurred in good faith, while the plaintiffs believed the false representations complained of to be true. and before discovery of the falsity thereof. These matters are all material to the accounting, to which the plaintiff corporation, under the facts alleged, is entitled, and were proper, though not absolutely necessary, subjects of averment to lay the foundation for that part of the relief. The court erred in striking out these allegations. It also erred in striking out the allegations of paragraph 42% of the complaint, containing a statement of some of the facts constituting diligence on the part of the plaintiff in promptly prosecuting the action.

The plaintiff moved to strike out of the cost bill of the defendants an item of $193.10 for costs incurred in the taking of the deposition of a witness, H. G. Mirfin. The objection to this item was that the deposition was taken before any answer was filed, and while an issue of law upon a demurrer to the complaint, on the ground that the facts stated did not constitute a cause of action, was undetermined. There is no provision or rule of law to the effect that a deposition may not be taken before an issue of fact has been raised. The Code provides that a deposition of a witness may be taken in an action at any time after the service of the summons or the appearance of the defendant (Code Civ. Proc. 2021), and that either party has the right to obtain evidence in this manner in the cases specified (Code Civ. Proc. § 2031) The judgment is reversed, and the cause remanded for further proceedings in accordance with this opinion.

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Under the provisions of the charter of San Francisco that an office becomes vacant when the occupant is convicted of a felony, there is a vacancy in the office of mayor when a verdict of guilty has been entered on trial of the mayor for a felony, and the board of supervisors has, on the judgment thereon being certified to them, declared the office vacant, though an appeal from the judgment is perfected and a certificate of probable cause granted.


The secretary of the mayor of San Francisco, who holds his position only during the mayor's pleasure, is removed when, after his appointment, a vacancy in the mayor's office occurs, and the mayor elected to the vacancy appoints another secretary.

In Bank. Petition of Harry G. McKannay for mandamus to Samuel W. Horton, auditor of the city and county of San Francisco. Peremptory writ ordered.

Wm. B. Kollmyer, for petitioner. Maurice L. Asher (Wm. II. II. Hart, of counsel), for respondent.

BEATTY, C. J. This is a petition for a writ of mandate to compel the allowance of a claim for salary of the secretary of the mayor of San Francisco. There are two persons claiming to be mayor de jure of the city, and each is assuming to act in that capacity. Each has appointed a secretary, both of whom have presented claims for salary for the month of July, 1907. The auditor cannot approve more than one claim, and, being uncertain which is valid, refuses to approve either. Practically he takes the position of a stakeholder, willing to allow and certify the lawful claim as soon as it shall be determined which is lawful. Recognizing the difficulty of his position, the court, in ordering the issuance of the alternative writ, directed service to be made of a copy of the writ, together with a copy of the petition, upon John J. Boyle, the rival claimant to the office of secretary, and upon Eugene E. Schmitz, who was the de jure and acting mayor at the time of his appointment. Acting upon this suggestion, said Boyle has made himself a party to the proceeding by filing an answer to the petition, setting forth the facts upon which he founds his claim to be rightfully in the exercise of the duties of the disputed office. The cause has been submitted for decision upon demurrers to the answers of respondent and Boyle, and upon facts stipulated by the parties where not admitted by the pleadings.

The case is as follows: At the general election in November, 1905, Eugene E. Schmitz was elected mayor of San Francisco for the next regular term of two years, and in pursuance of said election he duly qualified and entered upon the duties of the office on the 8th day of January, 1906. Thereafter le continued to discharge the duties of the office without question until July 9, 1907. (The fact that he was absent from the state on two occasions during this period, and that

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the president of the board of supervisors acted at such times as mayor pro tem., is not material in this case.) On the 13th of June, 1907, in the superior court of San Francisco, said Eugene E. Schmitz was found guilty of a felony-the crime of extortion-by the verdict of a jury, and on July 8th he was sentenced by the judgment of the court to a term of imprisonment for five years in the state's prison at San Quentin. On the following day the judge of the superior court, presiding in the department in which the trial and conviction of said Schmitz took place, in obedience to the requirements of section 997 of the Political Code, caused to be delivered to the board of supervisors a formal notice of said trial, conviction, and judgment, together with a duly authenticated copy of the judgment as entered. On the same day, July 9, 1907, the said board of supervisors regularly adopted a preamble reciting the election of Schmitz, his assumption of the office of mayor, his subsequent conviction of the crime of extortion, the judgment of conviction, and the fact that he was then actually confined in jail. They thereupon resolved that a vacancy existed in the office of mayor and that they would proceed forthwith to elect a mayor to fill the vacancy for the unexpired term. mediately after passing this resolution they did actually elect Charles Boxton as mayor for such unexpired term, who immediately qualified, and on the 11th day of July took possession of the rooms in the city hall which had been set apart by a resolution of the board of supervisors for the use of the mayor, and designated as the office of the mayor of San Francisco, together with the records and papers therein. On the 9th day of July he had appointed the petitioner to the office of secretary, who on the same day duly complied with all the legal conditions and requirements relating to the qualification of such appointees and entered upon the discharge of the duties of the office. On the 16th of July Boxton resigned the office of mayor, and on the same day Edward R. Taylor was elected by the board of supervisors to fill the vacancy for the balance of the unexpired term. He immediately qualified, and took possession of the office and records in the city hall, and has since continued to act as mayor, retaining the petitioner in his service as official secretary. In the meantime Mr. Schmitz has never conceded that his conviction of a felony, or the judgment and sentence of imprisonment, as above stated, have occasioned any vacancy in the office of mayor, but, on the contrary, notwithstanding his confinement in the county jail in the custody of the sheriff, has been insisting on his continued right to the office, and actually dis: charging the duties of the office so far as under the circumstances he has been able to do so. Some of the city officials have continued to recognize his authority as the rightful mayor, Others, including the respondent, whose duty it is to act, and whose authority

to act depends, in some instances, upon written orders of the mayor, have refused to act, unless upon concurrent orders from Schmitz and from Boxton or Taylor, and accordingly Schmitz has been certifying demands upon the city treasury. But Mr. Taylor, since he succeeded Mr. Boxton, has refused to act in conjunction with Mr. Schmitz in any official matter, and he alone is recognized by the board of supervisors as the rightful incumbent of the office of mayor. On the day of his sentence-July 8, 1907-Schmitz took and perfected an appeal to the District Court of Appeal for the First District-the proper court-and at the same time applied for and obtained from the judge of the superior court a certificate of probable cause for his appeal, which is still pending and undecided. Thereafter he continued and still continues to retain control of, and by his secretary, Boyle, remains in possession of, the office at Post and Franklin streets, which, subsequent to the earthquake and fire, and down to the 11th of July, 1907, was the only office of the mayor of San Francisco. He also has in his possession the mayor's official seal.

The question we have to decide is: Who is entitled to the salary of secretary to the mayor for the last 21 days of July? But one salary can be paid, and that is claimed at the same time by McKannay, the appointee of Boxton, and by Boyle, the appointee of Schmitz. Each of the claimants has performed the duties of the office so far as he has been allowed to do so-Boyle in the service of Schmitz, and McKannay in the service of Boxton and Taylor. It is conceded to be the duty of the respondent to allow the claim and direct its payment out of the city treasury, when duly certified by the mayor that it is correct. Taylor has certified that McKannay's claim for services from July 10th to July 31st is correct, and Schmitz has certified that Boyle's claim for a full month's salary is correct. The question, therefore, reduces itself to this: Who is mayor of San Francisco?

With reference to this question Mr. Boyle makes the preliminary objection that in this proceeding by mandamus we cannot try the title either of the secretary or mayor. are not cited to any authority for the proposition that the title to an office cannot be tried that is, inquired into-when it is incidentally involved in a proceeding which a third party has a right to institute. The doctrine which Mr. Boyle means to invoke is more correctly stated in these terms: Title to an office cannot be determined in mandamus, where there is another specific remedy prescribed, or where there is another plain, speedy, and adequate remedy at law. This doctrine is very fully and learnedly discussed in People ex rel. Smith v. Olds, 3 Cal. 167, 58 Am. Dec. 398, where the subject, the rule, its reasons, and its limitations are elaborately considered, and where it is shown to be merely a rule of procedure, even in cases

where it is sought to establish title to an office by a judgment which will operate as an estoppel in favor of a claimant and agains. an actual incumbent. Here, although we are obliged to decide, for the purposes of this and like cases, who is de facto mayor of San Francisco, we cannot determine, by a judgment which will operate as an estoppel between Dr. Taylor and Mr. Schmitz, who is the de jure mayor, however little doubt there may be as to the proper decision of that question. And as to the title of the secretary we are not required to determine that. When

we have once decided who is de facto mayor, we shall have no difficulty in determining whose order the respondent must obey in the matter of allowing such claims against the treasury as must be allowed on presentation of the mayor's certificate that they are correct. This whole question as to the right to decide incidentally upon the title to an office in a proceeding by mandamus was fully and carefully considered in Morton v. Broderick, 118 Cal. 481, 482, 50 Pac. 644, and the result of the decision there is the same as in the case of People v. Olds, viz.: That the rule in such cases as the present is, as above stated, merely a rule of procedure-the rule, that is to say of our statute; that the writ of mandamus will issue only in cases where there is not another plain, speedy, and adequate, or specially prescribed statutory, remedy. Code Civ. Proc. § 1086. The rule is not jurisdictional, and its application to a particular case involves only the exercise of sound legal discretion. In Morton v. Broderick, supra, it was held, as it must be held here upon even weightier considerations, that the gravity and urgency of the situation afforded ample ground for holding that there was no other remedy adequate or available to relieve the situation except mandamus, which was accordingly allowed, notwithstanding the effect must be practically to end the dispute as to which of two rival bodies was rightfully the board of supervisors of the city. The situation here is certainly as grave as it was then. The government of the city must come to a standstill if claims of public creditors cannot be paid, and many important matters essential to the public welfare must be left uncared for, unless some person is recognized as properly entitled to exercise the varied and important functions pertaining to the office of mayor.

This preliminary objection being disposed of, we return to the question: Who is mayor of San Francisco? Dr. Taylor and Mr. Schmitz are each claiming to be at the same time the de jure and de facto mayor. It will appear from the facts above stated that each has some claim to be the de facto mayor. Dr. Taylor is in possession of the offices provided for the mayor by the board of supervisors the governing body of the city and county-and is recognized by that board as the rightful mayor. Mr. Schmitz is in con

trol through his secretary of the premises occupied by the mayor at the date of his con viction; but he is himself a prisoner in the county jail, where it is the duty of the sheriff to keep him closely confined. Nevertheless his right to act is maintained by some at least of the other city and county officers and by many private persons who resort to him for the purpose of transacting official business. He also is in possession of the official seal used by him up to the time of his conviction, while Dr. Taylor has been provided with a new seal. If these facts alone were considered, it might be difficult to decide which of the two is de facto mayor. But in such cases the law affords a rule of decision which in this case is not difficult of application. There cannot be two de facto incumbents of one office at the same time, and where two are acting simultaneously, each under claim of right, that one alone will be recognized who appears to have the better legal title. Morton v. Broderick, 118 Cal. 485, 486, 50 Pac. 644. For the purpose, therefore, of determining who is mayor de facto of San Francisco, we must inquire who appears to be mayor de jure.

By the charter of the consolidated city and county it is provided that "an office becomes vacant when the incumbent thereof dies, resigns, is adjudged insane, convicted of a felony or of an offense involving a violation of his official duties," etc. Article 16, § 10. And by section 996 of the Political Code it is provided that "an office becomes vacant on the happening of either of the following events before the expiration of the term: (1) The death of the incumbent.

(8) His conviction of a felon or of any offense involving a violation of his official duties." It will be seen that with respect to the case in hand the provisions of the charter and the state law are identical. Either, in the absence of the other, would give the same effect to any one of the enumerated contingencies, including conviction of a felony, that ensues in the case of the death of the incumbent; that is to say, the office ipso facto becomes vacant. People v. Shorb. 100 Cal. 540, 35 Pac. 163, 38 Am. St. Rep. 310; People v. Brite, 55 Cal. 79. On the 13th of June, 1907, the verdict of guilty in People v. Schmitz was returned and recorded; but we are not required to decide in this case that the entry of a verdict of guilty constitutes a "conviction" in the sense of the statute, for here a vacancy was not declared by the board of supervisors, and Boxton was not elected, until the 9th of July, after the entry of judgment on the 8th had been duly certified to the board. At that date certainly, if not before, Mr. Schmitz was convicted. The event had occurred which by the terms of the statute and of the charter vacated the office.

It is contended, however, that the perfecting of an appeal from the judgment and the

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