« SebelumnyaLanjutkan »
ten instructions as to what should be done The only other point worthy of notice rewith the property in the event of her death. lates to alleged erroneous rulings of the court In Vance v. Smith, 124 Cal. 219, 56 Pac. 1031, upon objections to certain evidence. We do the gift was not to take effect until some not deem it necessary to refer to them spetime in the future, and hence it was declared cifically. We have examined them all, and invalid. In Denigan v. Hibernia, etc., So- we find no prejudicial error. ciety, 127 Cal. 138, 59 Pac. 389, it was prop- The cause appears to have been justly deerly held that "the retention by the wife of cided, and the order denying the motion for the right in herself to withdraw the whole a new trial is affirmed. of the money from the bank” is inconsistent with the idea of a gift. This must be so, be- We concur: CHIPMAX, P. J.; HART, J. cause it is not a gift unless the donor divests himself of all control and dominion
(6 Cal. App. 122) over the property. In Pullen v. Placer Coun
PEOPLE ex rel. MCCARTY v. WILSON. ty Bank, 138 Cal. 109, 66 Pac. 710, 71 Pac.
(Civ. 321.) 83, 94 Am. St. Rep. 19, John W. Clarke, Sr.,
(Court of Appeal, Third District, California. for the purpose of making a gift of $1,000 to
July 30, 1907.) his son, John W. Clarke, Jr., drew his check
1. JUDGMENT - CONCLUSIVENESS ELECTION upon the bank for that sum and delivered it
CONTEST. to his son, saying that he could get the A determination in an election contest, money from the bank, but after delivering it
against the contestee's objection that the law to him stated that he wished he would not
authorizing "no nomination" to be printed on
ballots, where no nomination bad been made, present it until after his death. The son
was unconstitutional, and that hence no such did not present it till the morning after his baliot should be counted, became res judicata, father's death. It was held that the gift was
barring the contestee from asserting the unnot compiete, since the son did not present subsequently brought against him by the con
constitutionality of the statute in quo warranto the check and secure possession of the money testant, in whose favor the contest had been during the father's lifetime. However, the decided. court said: “The check was not a symbolic
[Ed. Note.-For cases in point, see Cent. Dig.
vol. 30, Judgment, $ 1231.] delivery of the money, but it was a delivery
2. SAME. of the means by which the son could obtain
The final judgment in an election contest in possession of the money." This would seem
favor of contestant was admissible on subsequent to meet the requirement of section 1147, Civ. ' quo warranto by the people on the relation of Code, where the property is in possession of
the successful contestant against the contestee; a third party; but, at any rate, the case is
the parties being essentially the same in both
actions. not controlling here, because the order in the
[Ed. Note.-For cases in point, see Cent. Dig. case at bar was presented to the bank and vol. 30, Judgment, $ 1177.] accepted by it before the death of Mr. Lud
3. SCHOOLS AND SCHOOL DISTRICTS-SUPERINwig. In Noble v. Garden, 146 Cal. 225, 79 TENDENT OF SCHOOLS' RESIDENCE. Pac, 883, it was held that the transaction did A successful contestant for the office of not amount to a gift, where the deceased in
county superintendent of schools did not dis
qualify himself to hold the office because, pendher lifetime maintained dominion and con- ing the determination of the contest, he went to trol over the certificates of stock in contro- an adjoining county to teach a term of school, versy, and where she gave her agent oral
where he owned a house and personalty in the
county of the contest, and left a considerable directions to deliver the assigned shares to
portion of his household goods there, claiming certain persons after hier death, and the that county as his residence: his name remainagent complied with the directions. Since ing on the great register as a voter, and he rethe pretended gift was not to take effect
turning when the term of school closed.
4. OFFICERS-FILING OATII–TIME FOR CONuntil after the death of the transferror, it is
TEST. clear that it could not be held to be a gift. Pol. Code, 8 907. prescribing the time The decision in Basket v. Hassell, 107 U. S. within which one elected to an office must take 602, 2 Sup. Ct. 415, 27 L. Ed. 500, was based
and file his oath of office, does not apply where
a contest is pending, and where a contest grew upon an alleged gift of money represented
out of an election held November 4, 1902, and by a certificate of deposit evidenced by the remittitur on the affirmance of a judgment for following writing ou the back of the certifi- contestant was filed April 4, 1906, and he filed
his oath and bond April 14th, he acted within cate: “Pay to Martin Basket of Henderson,
a reasonable time in qualifying. Ky.; no one else; then not till my death. * I may live through this spell. Then
Appeal from Superior Court, El Dorado I will attend to it myself." It will thus be
County : N. D. Arnot, Judge. seen that the foregoing cases are not decisive
Quo warranto by tbe people of the state of here. As an illustration of transactions up
California, on the relation of T. E. McCarty, held as valid gifts, we may refer to Vandor against S. B. Wilson. From a judgment for v. Roach, 73 Cal. 614, 15 Pac. 351; Field v.
relator adjudging him to be entitled to an Shorb, 99 Cal. 661, 31 Pac. 501; Ruiz v. Dow,
office, defendant appeals. Affirmed. 113 Cal. 490, 45 Pac. 867; Calkins v. Equi- W. F. Bray, for appellant. U. S. Webb, table B. & L. Association, 126 Cal. 531, 59 Atty. Gen., Chas. A. Swissler, and Abr. DarlPac. 30.
ington, for respondent.
HART, J. This is an action in the nature of a quo warranto to determine the right
to the office of superintendent of 12
schools of El Dorado county. The respondent obtained judgment in the court below, adjudging him to be entitled to the office, and appellant takes this appeal from the judgment, upon a bill of exceptions.
The history of the differences between the parties over the title to the office in question is as follows: On the 4th day of November, 1902, at the general state election held in California on that day, the relator and the defendant were rival candidates for
the highest number of votes cast for the contested office, and was therefore, on the 12th day of June, 1905, adjudged by the trial court to be entitled to said office. On the 29th day of June, 190.5, the county clerk issued, in pursuance of the said judgment, a certificate of election to the relator, who, upon the same day, duly qualified and made a demand upon the defendant to surrender to him the office. The defendant refused to turn over the office to the relator, but served and filed a notice of appeal to this court from the judgment entered in said case. On the 30th day of January, 1906, this court
the said office of superintendent of schools rendered its decision in said cause. affirm
of El Dorado county. Thereafter a canvass ing the judgment appealed from, and the reof the returns of said election by the board mittitur certifying the judgment so rendered of supervisors of that county established, at by this court was transmitted to the county least prima facie, the election of the defend- clerk and received by that officer on the 4th ant, and he was by said board so declared day of April, 1906. Thereafter, and on the elected, and thereupon a certificate of election 11th day of April, 1906, the county clerk again issued to him by the county clerk. The re
issued to the relator a certificate of election, lator was the then incumbent of the office,
and, after again duly qualifying for the having been elected thereto at the general office, the respondent demanded said office state election held in the year 1898. After
of and from said defendant, who refused to the receipt of the certificate of his election,
surrender it to the relator, and continued to as declared by the board of supervisors, the usurp and unlawfully withhold the same. defendant duly qualified by taking the oath Four points are urged in argument by the of office and filing the same and recording appellant for a reversal of the judgment: his official bond, it having been first approved (1) That that portion of section 1197 of the by the judge of the superior court, and upon Political Code, as it existed at the time of the expiration of the previous term took the general state election held in the year charge of and entered upon the discharge of
1902, at which the electors of El Dorado the duties of the office. Thereafter and with- county voted for candidates for the office in in the time limited by the law, the relator dispute, requiring the words "No nomination" instituted a proceeding in the superior court, to be printed on the ballots, when no nominaunder the authority of section 1111 of the
tion had been made by a political party for Code of Civil Procedure, contesting the de- any office to be filled at the election, etc., fendant's right to the office. A trial of the
was unconstitutional. (2) That the court contest resulted in a judgment for the de- erred in admitting in evidence the judgment fendant, and thereupon the relator took an in the case of McCarty v. Wilson, entered in appeal from said judgment to the Supreme
favor of the plaintiff therein upon a second Court, and said judgment was thereafter re
trial of that case. (3) That the relator, at the versed and the cause remanded "for further time of his purported qualification for the proceedings.” McCarty v. Wilson, 146 Cal.
office after the remittitur from this court in 324, 82 Pac. 243. The grounds upon which the
the case of McCarty v. Wilson, supra, had reversal of that case was founded involved
been sent down and filed in the court below, rulings of the trial court overruling appel
was ineligible to hold the office because he lant's (respondent here) objections to the
was not a citizen of El Dorado county. (4) admission in evidence of a large number of
That the relator failed to qualify for the ballots upon which the voters had stamped a
office within the time prescribed by law. cross after or opposite the words "No nomina- Counsel complains that, in the variety of tion," printed upon said ballots, and also be
forms in which the litigation of the quescause of the overruling of the objections to
tion here has been before the courts of derthe reception in evidence of seven ballots con- nier resort, he has in vain vigorously insisted taining as many votes for respondent in upon the determination of the proposition that case (appellant here), on "each of which submitted by him that that portion of secballots the voter had written a name in the tion 1197 of the Political Code, referred to blank column on the ballot, and had stamped
here under the head of point No. 1, was a cross after each written name." Upon a violative of certain provisions of the state as retrial of the case in the court below, well as the federal Constitution. The part objections to the counting of the said ballots of said section toward which hostility is were, in conformity with the ruling of the thus directed was repealed by the Legislature Supreme Court, sustained, thus eliminating of 1903 (St. 1903, p. 147, c. 131), but appelthem in the determination of the result of the lant declares that he is nevertheless entitled election. The result of this ruling at the to a decision of the question. But, under second trial was that the relator here received the record before us, we think we are re.
lieved from that duty, as we perceive nothing clusively determined by the judgment in that in the case at bar which is affected by the
It follows, by consequence, that the question; nor do we appreciate the im- question raised by appellant's objection upon portance of declaring that the criticised part constitutional grounds against the counting of the section, having long since been re- of the ballots in all cases where the words pealed by the Legislature, is dead beyond the "No nomination" appear thereon, whether power or hope of resurrection. The proposi- such words so appearing declared the fact tion involves a moot question. It originally and the truth or otherwise, having been passarose, however, in the first trial of the con- ed upon and decided in the former case, is, tested election case. Counsel for the plaintiff as is true of all the other material questions in that case objected to the counting of cer- therein adjudicated, merged in the judgment tain ballots, upon the ground that after the in said case, and upon which he is estopped words. "Yo nomination," printed thereon, from making an attack in a collateral prothe voter had stamped a cross, and that there. ceeding, unless, of course, it appeared that hy said ballots were wholly invalidated. the judgment was void upon its face or the Thereupon, counsel for defendant in that record somewhere disclosed that the court case raised the point and made the objection did not have jurisdiction of the subject-matthat the provision of the law authorizing the ter or of the parties or either of them. No printing on the ballots the words "Yo nom- question here is raised that the judgment in ination,” in a case where a political party that case was void for any reason. had in fact made no nomination, was un- As to the objection that the court erred in qualifiedly unconstitutional and void, and allowing in evidence here the judgment obthat consequently no ballot containing those tained by the relator at the second trial of words, whether a cross was stamped opposite the contest, counsel attempts to maintain them or not, should be counted. The trial that, upon the authority of the case of People court overruled the objection made by the ex rel. Drew v. Rodgers, 118 Cal. 39+, 46 Pac. plaintiff, as well as that interposed by the 710, 50 Pac. 668, the parties to the election defendant in that case. The Supreme Court, contest and the parties to this proceeding as seen, reversed the cause, principally upon
are different and distinct from each other. the ground that the court below erred in He also claims that different issues were preoverruling the objection of plaintiff in said sented in this proceeding from those adjudicontested election case to the counting of the cated in the former case; that the allegations ballots upon which the words “No nomina- in the complaint concerning the election contion" appeared with a cross stamped after test, and the judgment therein, were not gerthem. It is at a glance perceivable that the mane to any question here or necessary for a objection challenging the constitutional valid- determination of any issues tendered in this ity of that part of section 1197, supra, re- cause, and should have been, upon his motion, ferred to), cannot be raised here. The ob- stricken out. We are unable to agree with jection thus made simply meant that such the learned counsel in this statement. There ballots constituted testimony irrelevant to are, in the rery nature of the proceedings bethe issue in the election contest, for the rea- fore us, essentially some new issues tendered. son that the act of printing the words “Yo For illustration, it is alleged by the relator nomination" upon the ballots was contrary to that the defendant has unlawfully intruded some provision of the Constitution. It har. into, usurped, and is unlawfully withholding ing been one of the questions tried and con- the office from relator. This is an issue clusively determined upon the objection of which was not, technically speaking, involved appellant in the first litigation of the ulti- | in the former case. It is also true that the mate proposition in that case, and which is defendant himselt presents two new quespractically the same that is sought to be es- tions, numbered 3 and 4 in the order in which tablished by this proceeding, it became there. we are considering the points. But it does by res adjudicata. It does not matter that not follow from these considerations that the form of the main question in that case the judgment in the former case was not an was as to which of the rival candidates had issue here. Indeed, it was an exceedingly been in fact and in law elected to the con- important one to the relator—in fact, all-imtested office, and therefore in whom was portant, for without it he would have utterly thereby invested the right and title to that failed to make a case against the defendant. office, while here the question, in form, is In the case of Drew v. Rodgers, supra, the as to whether or not the defendant is usurp- court below admitted in evidence the judging and unlawfully withholding the office ment roll in the case of Drew v. Rogers (Cal.) from the relator. The fact is that it is un- 34 Pac. 1081. The plaintiff in the last-mendoubtedly correct to say that the ultimate tioned case was Moses M. Drew. The relator point or final object sought to be achieved by in the case subsequently tried was one Warboth proceedings was and is to secure the ren F. Drew. The object of both actions was occupation and control of the office. All the to oust the defendant from the office of chief material issues tried and facts proven rele- of police of the city of Sacramento. In the vantly bearing upon such issues in the former case of the People ex rel. Drew v. Rodgers, l'ase were necessarily. definitively and con- supra, the Supreme Court says: "The court erred in admitting in evidence the judgment, county for the purpose of teaching school. roll in the case of Drew v. Rogers, supra, and He owned a house and personal property in in holding that the defendant was estopped El Dorado county, and left a considerable thereby from proving that he had been a citi. portion of his household effects in his house, zen of the United States for more than 90 IIe testified that his residence in Placer coundays prior to the election in March, 1892. ty was only temporary, and because he was The judgment was not between the parties to compelled to teach in order to earn a livelithe present action, nor was it between the re- hood for himself and family. He never had lator and the defendant.” The relator in the any intention of abandoning El Dorado councase at bar was the contestant in the former ty as his home, and his name remained on case, and merely because in this proceeding the great register as a voter in that county; the law requires that he must first obtain that as soon as the term of school he was the consent of the Attorney General before teaching terminated he intended to and did instituting it, and because the people are, eo return to El Dorado county. The court's findnomine, made parties to it, renders him none ing against the contention of appellant upon the less the real party in interest. The ob- this point is fully sustained by the evidence. ject of this proceeding is, as is manifest, prac.
The contention that the relator failed to tically to enforce and carry out the judgment qualify within the time required by law finds in the election contest. The appellant refus- no support either in principle or the decisions ed to surrender the office to the party adjudg- of the courts. It has been held in this state ed by the courts upon a trial of the question
that, where a contest is pending for an office, to be entitled to it. He was therefore an
section 907 of the Political Code, prescribing usurper of the office, and the relator was the time within which a person elected to an compelled to resort to this proceeding for the
office must take and file his oath of office, , purpose of securing what had been judicially
has no application. People v. Potter, 63 Cal. determined to be his right. In order to es
127. According to the agreed statement of tablish that right here, it was not only proper
facts here, the remittitur from this court certibut absolutely necessary for him to present tifying the affirmance of the judgment of the to the courts the evidence of his title. In court below was received and filed in the what other way could he have established last-mentioned court on the 4th day of April, the allegations that the defendant was unlaw
1906, and the relator filed his oath and bond fully withholding the office from him, and
on April 14th. The relator acted within a that he was himself, under the law, entitled
reasonable time in qualifying. to exercise the duties of the office? The de
Under all the circumstances of the case, as fendant had, as his authority for occupying
disclosed by the record, we think the defendthe office, the certificate of election issued to
ant had no conceivable reason for withholdhim, as required by law, by the county clerk,
ing the office from the relator, after the deupon the declaration by the board of super
cision of this court affirming the judgment visors, after canvassing the election returns,
and the order by the Supreme Court denying that he had received the highest number of
the petition for a rehearing of the case after votes cast at the election for that office, and
judgment here. was consequently elected thereto. The elec
There are some other points suggested, tion contest prosecuted by the relator result
but we do not regard them worth noticing. ed in the annulment of the certificate so re
The judgment is aflirmed. ceived by the defendant, and the judgment of the court so annulling it was the only au
We concur: CHIPMAN, P. J.; BUR
NETT, J. thority of the clerk for issuing to the relator the certificate evidencing his right to exercise the duties of the office. The ruling of the court
(6 Cal. App. 117) upon the point under discussion was, as we
DRINKWATER v. HOLLAR et al. (Civ. 354.) bave said, not only proper, but necessary.
(Court of Appeal, Second District, California. We have thus disposed of the constitutional
July 23, 1907.) question presented by counsel, and also the
1. QUIETING TITLE-PLEADING-DELIVERY OF second point, in the order presented by us. DEED.
There is no merit in the point that the In an action to quiet title, an allegation in relator was not qualified to hold the office
the answer of the delivery of a deed, under
which defendants claimed, is deemed controvertbecause of nonresidence in the county at the ed under Code Civ. Proc. $ 462, providing that time he took the oath of office and filed his the statement of new matter in the answer in bond after the remittitur from this court cer
avoidance or constituting a defense, must at
the trial be deemed controverted by the opposite tifying its decision on the appeal from the
party. judgment entered upon the second trial of
2. DEEDS-DELIVERY. the contested election case was received and Delivery of a deed is as essential to the filed in the court below. The evidence upon
passing of title as the execution thereof. this point, consisting alone of the testimony
[Ed. Note.-For cases in point, see Cent. Dig.
vol. 16, Deeds, $ 116.) of the relator, was to the effect that, pending
3. EVIDENCE-PAROL-NON DELIVERY OF DEED. the final determination by the courts of the
While possession of a deed by the grantee election contest, the relator went to Placer | is prima facie evidence of its delivery, parol ex. trinsic evidence is admissible to show that no osition by a written agreement to that effect, delivery was ever made by the grantor with in
as follows: "This agreement witnesseth: tent to pass title.
That I, X. H. Hollar, of Lima, Ohio, owner [Ed. Note.--For cases in point, see Cent. Dig. vol. 20, Evidence, $ 1978.)
of the second piece of property described
within, hereby accept the proposition of ex4. DEEDS-DELIVERY BY BROKER-AUTHORITY.
Certain brokers, acting for plaintiff and de- change made therein, and upon the terms fendant in effecting an exchange of land for therein stated, and agree to furnish said certain stock, received a deed from plaintiff,
stock mentioned in within agreement to T. with instructions not to deliver the same until the transaction was completed, and plaintiff
P. Drinkwater or his assigns or representashould have had time to investigate the value of tives. And I further agree to pay Rains the stock. Thereafter plaintiff told the brokers
& Hunter commission for said exchange. he was not satisfied, and was still investigating
* * [Signed] X. H. Hollar." A deed the stock; but the brokers. contrary to his instructions, delivered the deed to defendant. of conveyance, whereby Drinkwater and his Held, that neither plaintiff's delivery of the deed wife conveyed to appellant the real estate to the brokers, nor their delivery thereof to defendant, was effectual to pass title.
in question, was duly executed, and on Janu[Ed. Note.--For cases in point, see Cent. Dig.
ary 4, 1903, said Drinkwater placed the deed, vol. 16, Deeds, $ 124.]
together with his note for the sum of $275,
covering the agreed commission, with Rains Appeal from Superior Court, Riverside & Hunter, who gave him a receipt therefor, County; J. S. Noyes, Judge.
as follows: “January 4, 1901. Received Action by T. P. Drinkwater against X. H. from T. P. Drinkwater deed to X. H. Hollar Hollar and others. From a judgment for
of lot 5 in block 17 of the lands of South plaintiff, and from an order denying defend
Riverside Land & Water Co. in Corona, Calif. ants' motion for a new trial, they appeal. Agreement for certificate of title that land Affirmed.
is to be free and clear except incumbrances
mentioned in deed, and note of $275 as comX. H. Hollar, Flint & Barker and Barker
mission for the exchange of said property. & Bowen, for appellants. G. R. Freeman
Rains & Hunter. On the above we have and E. W. Freeman, for respondent.
$6,500.00 stock per value of the T. C. & C.
Ry. Co., which we agree to deliver to said SILAW, J. Action to quiet title. The veri- T. P. Drinkwater on demand. Rains & Huntfied complaint is in the usual form, ascrib
er." Appellant's claim is based upon the deed ing possession and ownership of the property executed by Drinkwater, which, it is alleged, to plaintiff, and alleging an unfounded ad
was delivered to defendant Hollar on the verse claim of defendant thereto. The an- 11th day of January, 1905. swer controverts the ownership of plaintiff, Under Section 462 of the Code of Civil and alleges that by deed duly executed on Procedure this allegation of delivery of the December 28, 1901, and delivered to defend- deed is deemed to be controverted. Upon ant on January 11, 1903, plaintiff conveyed the issue thus tendered by the answer, the the land in question to defendant. The deed court found there had been no delivery of was recorded on January 12, 1905, and this
any deed conveying the property to the deaction instituted on the following day. Judg. fendant. Assuming the evidence upon which ment went for plaintiff, from which, and an the court based its conclusion to have been order denying defendant's motion for a new admissible, it was sufficient to justify the trial made upon a bill of exceptions, he ap- finding. The evidence tended to prove there peals.
was no delivery of the deed; that repreOn December 28, 1904, the respondent, sentations as to the value of the stock had Drinkwater, executed an "agreement for ex- been made to plaintiff; that, while he left change,” which recited that he had placed the deed with Rains & Hunter, it was so with Rains & Hunter, who were real estate deposited upon an understanding that they brokers acting as agents for both parties, should retain possession thereof and hold unthe land in question (particularly describing til the deal
til the deal was completed, and until he it), which he desired to exchange for prop- should have time to investigate the value of erty consisting of $6,500 per value of the the stock; that thereafter he told them that stock of the Toledo, Columbus & Cincinnati he vas not satisfied and was still investigatRailway Company, then owned by appellant, ing its value, but that, contrary to his inand authorized said Rains & Hunter to act structions, they delivered the deed to appelas his agents in negotiating such exchange, lant-to all of which, and other testimony and agreed if they should secure an accept- of similar character, defendant objected, upance of the proposition for such exchange on the ground that there was no issue under to furnish a certificate of title and a deed which such testimony was admissible. The of bargain and sale conveying a good and action was prosecuted under the provisions sufficient title to the property, and, upon se- of section 738, Code Civ. Proc. The deed curing the acceptance of the proposition to upon which defendant bases his claim of exchange the real estate for the stock, agreed title was duly signed, acknowledged, and to pay Rains & Hunter the sum of $273 as recorded, and constituted an apparently good commission for their services. On the same record title. But delivery of a deed is equalday the appellant Hollar accepted the prop- ly essential in transferring title as the act