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plaint: "The defendant on the 27th day of August, 1904, intentionally and negligently kindled a fire on said defendant's land in Colusa county, Cal., and adjoining the said land of plaintiffs, and negligently suffered said fire to extend beyond its own land, and so negligently watched and tended said fire that it came into the plaintiffs' said land and destroyed all the property hereinbefore described without any fault or negligence on the part of plaintiffs or either of them, and the loss of plaintiffs by reason of the destruction thereof was the sum of $1,025."

1. The court committed no error in overruling the demurrer. The property was sufficiently described for identification, and it was located "on lands owned by plaintiffs in township seventeen (17) north, range one (1) west in Colusa county" and adjoining the property of defendant. Defendant could hardly be mistaken as to what property was intended. As to the title, it was sufficient to allege "that on the 27th day of August, 1904, and for a long time prior thereto, plaintiffs were the owners of the following described property." When such an allegation is made, the presumption follows that they are tenants in common. The suggestion that the averment "and the loss of plaintiffs by reason of the destruction thereof was the sum,' etc.. is not equivalent to an allegation that plaintiffs were damaged in said sum, seems hypercritical and not entitled to serious attention.

2. It is claimed that no negligence was shown, and therefore the verdict of the jury is not supported by the evidence. In this connection the following cases are cited: Garnier v. Porter, 90 Cal. 105, 27 Pac. 55; Galvin v. Gualala Mill Co., 98 Cal. 268, 33 Pac. 93: Sweeney v. Merrill, 38 Kan. 216, 16 Pac. 454, 5 Am. St. Rep. 734; Needham v. King, 54 N. W. 891, 95 Mich. 303: Bolton v. Calkins, 60 N. W. 297, 102 Mich. 69. We deem it unnecessary to notice in detail these various decisions. They all substantially agree as to the law applicable to this class of cases. Indeed, there could be no dispute, and there is none here, that plaintiffs are not entitled to recover unless defendant was negligent in setting out the fire or in the management of it after it was started, and that this negligence was the proximate cause of the injury. No difficulty attends the determination of what is negligence in the abstract, but the attempt to apply the principle to concrete facts often gives rise to serious controversy. In the Needham Case, supra, the whole question of negligence in allowing fire to spread to the property of one's neighbor is discussed elaborately, and a large number of cases is reviewed. It is therein stated by the Supreme Court of Michigan that: "Fire is a dangerous element and in making use of it a degree of care is required corresponding to the danger." And the following is quoted with approval from Cooley on Torts: "Due care requires circumspection not only as to

time and place of starting it, but in protecting against its spread afterwards." The opinion proceeds: "There is no doubt that a party having taken reasonable precautions to avoid the spread of fire may, on a calm morning in a dry time, set fire to rubbish upon his premises, and if, during the progress of the fire, a violent wind causes the fire to escape to his neighbor's premises, he cannot be said to have been negligent. But the law does not justify the use of fire at a time and place when the probable consequences are communication with the property of others." In the case at bar there was some evidence that a brisk south or southeast wind was blowing at the time the fire was started. Some of the witnesses denied this, but there was such a conflict as to make it a proper question for determination by the jury. The thistles on defendant's premises to which the fire was set were high and close together. It was late in the summer season, and everything was dry and inflammable. If the wind was blowing, we can understand how a reasonable man might reach the conclusion that the probable consequences of starting the fire would be the destruction of the neighbor's property on the north, and therefore that the defendant had not exercised due care under the circumstances. Besides, the evidence left it a disputable proposition whether the preliminary preparations were adequate to prevent the fire from spreading. It cannot be said as a matter of law that the jury was not justified in finding that the defendant was negligent in starting the fire.

3. Complaint is made of certain rulings of the court in the admission of evidence to show the amount of damage done to plaintiffs by the fire. Granting that some of them are technically erroneous, yet no prejudice is shown, as testimony to the same effect was received without objection. And, again, there is no issue raised by the pleadings as to the value of the property destroyed. The complaint was verified and the value of each article destroyed specifically averred. The answer denied that plaintiffs were the owners of the property, or that the fire destroyed it, or that defendant was guilty of any negligence: but the only denial as to the amount of damage is as follows: "Defendant denies that the loss of plaintiffs, by reason of the destruction of the property described in said complaint, as therein alleged, was the sum of $1,025." There is no denial that it was of any sum less than that.

4. There seems no escape from the conclusion that the court erred in its refusal to give the following instruction requested by defendant: "I instruct you that if for any reason it was impossible for the employés of the defendant company to have prevented the fire from getting beyond their control, owing to any sudden rising of the wind after the fire was set out, the defendant company would not be liable for the damages accruing to plaintiffs, providing due care was taken be

distinction is of no practical importance, as each juror, whether prejudiced or not, must necessarily be guided by the evidence as it affects his own mind, and it is impossible for him to determine how the evidence would influence some other mind. Besides, of course, the presumption must be indulged that each juror is unprejudiced and of average intelligence.

It is due the learned trial judge to say that he had no opportunity to review the record, as no motion was made for a new trial; the appeal being from the judgment alone.

For the error pointed out the judgment is reversed.

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

(6 Cal. App. 115) SNIPSIC CO. v. RIVERSIDE MUSIC CO. (Civ. 401.)

July 24, 1907.)


fore the fire was set out." The instruction is based upon the proposition that, if defendant exercised due care in setting the fire, it would not be liable for any negligence in its subsequent care of said fire, if that negligence was not the proximate cause of the injury to plaintiffs. If by the exercise of due care in the management of the fire defendant could not have prevented the damage, it is not liable for its failure to exercise such care. The whole doctrine of responsibility for negligence is based upon the postulate that without such negligence the injury would not have occurred, or, in other words, that the negligence is the proximate cause of the injury. The following cases illustrate the point: Kevern v. Providence M. Co., 70 Cal. 394, 11 Pac. 740; Vizelich v. S. P. R. R. Co., 126 Cal. 587, 59 Pac. 129; Puck haber v. S. P. R. R. Co., 132 Cal. 363, 64 Pac. 480; Luman v. Golden A. C. M. Co., 140 Cal. 706, 74 Pac. 307. Defendant was entitled to the instruction, as there was evidence that the communication of the fire to the premises of (Court of Appeal, Second District, California. plaintiffs was caused by a sudden whirlwind which defendant could neither anticipate nor control. The instruction was adapted to defendant's theory of unavoidable casualty, which theory finds support in the testimony of some of the witnesses. That the failure to give the instruction may have resulted to the prejudice of defendant is apparent from the reflection that the jury under the evidence may have believed that defendant exercised due care in setting out the fire, but was negligent in caring for it, and also that the damage was caused by the whirlwind over which defendant could exercise no control. A verdict resting upon this state of facts would be unjustifiable as ignoring the doctrine of "proximate cause." Respondents' answer to the contention is that the principle was covered by another instruction appearing at folio 51 of the transcript. But the latter is not authenticated in any manner. It is not incorporated in the bill of exceptions, and it is no part of the judgment roll. In fact, it does not purport to have been given by the court, but it is printed as a part of "Instructions Requested by Plaintiffs." It is manifest that it cannot be considered. But, if it could be regarded, it is clear that it does not cover the contingency suggested, but requires defendant, in any event, to exercise ordinary care, in attending said fire, to escape responsibility.

Appellant criticises the action of the court in giving this instruction: "By preponderance of the evidence is not necessarily meant a greater number of witnesses, but only such weight of evidence as satisfies the jury of the truth of the allegation to be established." The contention is that section 1835, Code Civ. Proc., provides that it must satisfy the unprejudiced mind; whereas, the mind of the juror may be prejudiced. The argument is somewhat tenuous and metaphysical. The

An affidavit of an appellant that the transcript is correct cannot be substituted for the certificate of the clerk or attorneys as to the correctness thereof required by Code Civ. Proc. § 953, and Supreme Court rule 2 (78 Pac. vii), and in the absence of the latter certificate the judgment appealed from cannot be reviewed.

Appeal from Superior Court, Riverside County; F. E. Densmore, Judge.

Action by the Snipsic Company against the Riverside Music Company. From the judgment, plaintiff appeals. Motion to dismiss appeal. Dismissed.

Howard K. James and F. G. Hall, for appellant. pellant. Purington & Adair, for respondent.

SHAW, J. This is a motion on the part of the respondent to dismiss an appeal from a judgment of the superior court of Riverside county. The transcript of the record contains no certificate either by the clerk or attorneys of the correctness of the same, nor does it contain any certificate of the clerk or attorneys that an undertaking on appeal in due form has been properly filed, or waiver thereof. Section 953, Code Civ. Proc.; Supreme Court rule 2 (78 Pac. vii). Appellant has presented an affidavit averring "the said transcript as the same is now of record is in all respects true and correct"; but the affidavit of appellant cannot be substituted for the certificate required by said section 953, Code Civ. Proc., and the rules of this court, in the absence of which, the judgment appealed from cannot be reviewed. Ellis v. Bennet, 3 Pac. 801; Pacific M. Life Ins. Co. v. Edgar, 132 Cal. 197, 64 Pac. 260. The motion is granted, and appeal dismis sed, without prejudice to another appeal.

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

(6 Cal. App. 190)

EGILBERT v. SUPERIOR COURT OF SHASTA COUNTY. (Civ. 384.) ¡Court of Appeal, Third District, California. Aug. 5, 1907.) MANDAMUS-VIOLATION OF WRIT-CONTEMPT.

Petitioner for writ of review answered a petition for a writ of mandamus to compel him as secretary of a corporation to submit its books to examination, admitting that he was then, April 22, 1907, secretary of the corporation. The cause was set for trial on May 22, 1907, on issues joined, and on May 18th petitioner resigned as secretary, not for the purpose of evading the order of the court, and on the 25th, when he was served with a peremptory writ commanding him to submit the books of the corporation to examination, he was not secretary and could not comply with the order. Held, that he was not chargeable with contempt in failing to obey the writ.

Application for a writ of review by W. D. Egilbert against the superior court of Shasta county to determine the validity of a judgment against petitioner for contempt. Writ granted. Petitioner discharged.

Geo. O. Perry and C. H. Braynard, for petitioner. T. W. II. Shanahan, for respondent.

CHIPMAN, P. J. The petition shows: That on April 10, 1907, a petition for a writ of mandate was filed in defendant court, and thereafter, to wit, on May 22, 1907, a peremptory writ was issued out of said court, directed to affiant, as secretary of the Pacific Power Company, commanding affiant "as such secretary immediately after the receipt of said writ to permit one T. W. H. Shanahan, at whose instance and in whose behalf said peremptory writ of mandate was granted, to inspect all of the books

* of the

Pacific Power Company"; that said peremptory writ was served on affiant on May 25, 1907; that prior to May 18, 1907, affiant was secretary of said company, but resigned as such secretary, and his resignation was accepted on said May 18th, and at no time thereafter was he such secretary or in possession of or had control of said books. It next appears that on the day of June, 1907, said Shanahan made and filed in said court an affidavit setting forth, in substance, the foregoing facts: That he had made demand for the production and inspection of said books by virtue of said writ after service thereof on petitioner herein, but was not furnished access to or allowed to inspect said books, and that the said Shanahan prayed for an order of court requiring said Egilbert to show cause before said court on June 14, 1907, why he should not be punished for contempt of said court for failing and refusing to obey said writ; that affiant (petitioner herein) thereupon made and filed his affidavit in said court setting forth the fact of his resignation as such secretary and the acceptance thereof on May 18, 1907. and that since said day he had not had the custody or control of said books, and "that at the time of the service of said writ of mandate and de

mand, and at all times thereafter, said affiant W. D. Egilbert was unable to produce or submit for inspection said books"; that on said June 14, 1907, affiant appeared in response to said order of said court, and a hearing was had and evidence introduced in relation thereto; that at said hearing said Egilbert offered to produce evidence that his resignation as such secretary "was made without any intent or effort on his part to evade or render null or of no effect the order of said superior court, but said superior court thereupon refused to receive or admit such evidence"; that the fact that said Egilbert did not have the care or custody of said books was not controverted at said hearing; that the said court made findings in said proceeding and found that said Egilbert resigned from his said office on May 18, 1907, and it was not found or determined that he so resigned for the purpose of evading any order of the court, or that he did not resign in good faith; that petitioner was adjudged to be guilty of contempt, and as punishment was fined in the sum of $200, and in default of payment to be imprisoned one day for each $2 thereof. Most of the allegations of the petition are admitted. petition are admitted. It is admitted in the return of the judge that Egilbert resigned on May 18, 1907, but it avers want of knowledge as to the acceptance thereof, and on information and belief denies that it was accepted; avers want of knowledge as to the allegation in the petition that Egilbert was not the secretary of the said company at the said date or in possession of certain of said books, and therefore denies said allegation; admits that Egilbert filed his affidavit in said contempt proceedings, setting forth the facts as above shown by him; admits that at the hearing he offered to prove that he acted in good faith in resigning and through no purpose to evade any order of the said court; and admits that the evidence that Egilbert was not secretary and did not have the care or control or custody of said books was not controverted. It further appears from the return of respondent that the petition for a writ of mandate was filed April 10, 1907; that an alternative writ was duly issued on that day, returnable April 17, 1907; that Egilbert made answer April 22, 1907, and admitted that he "was and now is" such secretary; that, issues being joined the cause was set for trial for May 20, 1907, and was then tried and judgment rendered in favor of petitioner, among other things, that at all times mentioned in the petition for writ of mandate, said Egilbert was and now is such secretary; that a peremptory writ was thereupon, on May 22, 1907, duly issued, was served on Egilbert on May 25, 1907, and he failed and neglected to obey its directions, and thereupon said proceedings in contempt were commenced; that at the hearing of the contempt proceedings the court determined that said Egilbert was secretary when the alternative

In re Cowden, 139 Cal. 244, 73 Pac. 156. Petitioner could show his resignation, and that he was no longer in control of the company's books, as an. answer to contempt proceedings for noncompliance with the writ of mandamus. U. S. v. Seaboard R. Co. (C. C.) 85 Fed. 955. The Supreme Court said, in Ex parte Hoar, 146 Cal. 132, 79 Pac. 853: "In cases of contempt, every court exercises a special and limited jurisdiction, and its authority to impose a fine or term of imprisonment must be shown by the record of conviction"-citing Overend v. Superior Court, 131 Cal. 280, 63 Pac. 372.

The judgment adjudging petitioner guilty of contempt, and imposing punishment therefor, is hereby vacated and declared to be null and void.

We concur: HART, J.; BURNETT, J.

(6 Cal. A. 195) BAUTER v. SUPERIOR COURT OF SHASTA COUNTY et al. (Civ. 385.) (Court of Appeal. Third District, California. Aug. 5, 1907.)

writ was issued in April, but that he resigned | Ex parte Todd, 119 Cal. 57, 50 Pac. 1071; on May 18th; that the cause was heard on May 20th; "that he failed and neglected elther before or at the trial of said case to notify the court of his resignation, and allowed the court to proceed to judgment under the impression that he was secretary of the said Pacific Power Company; that at all times during said proceedings and up to the time of the present contempt proceedings he was a director of said corporation; that as such director he had actual knowledge that the judgment had been rendered against him as secretary of said corporation; that on the 25th day of May, 1907, he was duly served with a copy of the peremptory writ of mandate, the refusal to obey which resulted in the contempt proceedings." Reduced to the simplest statement, the material facts were: That in April Egilbert answered the petition for a writ of mandate, stating that he was then, April 22, 1907, the secretary of the company; that the cause was, on the issues then joined, set for trial May 20, 1907; that on May 18th he had resigned and thenceforward ceased to be secretary or to have control of the books of the company; that on May 25th, when the writ was served, he was not the secretary and could not comply with the order; that his resignation was not for the purpose of evading the order of the court. At the hearing on May 20th, the issue was the same as when Egilbert filed his answer, namely, that he was then, April 22d, the secretary of the company. If he continued to be such secretary until the hearing, May 20th, the fact should have been proven, or, if he resigned contumaciously to evade the operation of any writ that might be issued, that fact should have been shown. But the court conceded that the resignation had no such object in view, by eliminating all evidence on that point, and it not only did not find that Egilbert was secretary on May 20th, but did find that he had resigned on May 18th. The fact that Egilbert withheld from the court the fact of his resignation on May 20th, and allowed the court to grant the writ under the impression that Egilbert was then the secretary, is not the ground on which the contempt judgment was based. That judgment rested on his failure and refusal to produce the books of the company. Respondent did not appear at the hearing here and has filed no brief of points and authorities.


Proceedings having been instituted against E., as secretary of a corporation, to compel him to produce the books of the company and submit the same for inspection, he resigned as secretary in good faith prior to the issuance of a peremptory writ commanding him to produce the books for examination, etc. Petitioner was elected temporary secretary to fill the vacancy until the permanent secretary, who had been selected, should take office. A copy of the peremptory writ was served on petitioner, and demand made on him to produce and submit them to inspection, but, before the time arrived for submission of the books, under an agreement with relator, petitioner resigned as secretary; the permanent secretary having assumed the office. Held that, petitioner being no party to the mandamus proceedings, the court had no jurisdiction to punish him for his failure to comply with the writ.

Petition for a writ of review by L. A. Bauter against the superior court of Shasta county and George W. Bush, judge thereof. Writ granted. Petitioner discharged.

Geo. O. Perry and C. H. Braynard, for petitioner. That judgment petitioner. T. W. H. Shanahan, for respondents.

It clearly appears, and is not controverted, that it was beyond the power of petitioner to comply with the order when the peremptory writ of mandate issued and when it was served upon him, and that his inability to comply was not brought about through any design or purpose to evade the order of the court. Upon this state of facts the court was without jurisdiction to punish him for contempt. Adams v. Haskell & Woods, 6 Cal. 316, 65 Am. Dec. 517; Ex parte Cohen, 6 Cal. 319, cited in Ex parte Cottrell, 5 Cal. 420;

CHIPMAN, P. J. It appears from the petition herein that petitioner was adjudged to be guilty of contempt in disobeying the writ of mandate issued' out of the proceedings in the cause entitled W. D. Egilbert, Petitioner, v. Superior Court of Shasta County (No. 384, this day decided) 91 Pac. 748, in which cause this petitioner was not a party in any capacity, and was not named therein. It is alleged that petitioner was on May 18, 1907, elected as temporary secretary of the Pacific Power Company to fill a vacancy caused by the resignation of said Egilbert, until one A. A. Martin, who had been selected as per

manent secretary, should be able to take such office; that a copy of the said writ was served on petitioner on May 28, 1907, and demand was then made upon him to produce and submit for inspection the books of said company; that petitioner replied to said demand that the books were not in his possession or under his control, but that he would produce them as soon as he could procure possession and control of them; that thereafter he made an arrangement with T. W. H. Shanahan (who had procured said writ to issue) to submit said books to him for inspection on June 10, 1907, but that prior thereto he (petitioner) resigned as such secretary, said Martin having become able to take up the duties of said office. It is then shown that said Shanahan took proceedings to obtain an order of the court adjudging petitioner herein to be guilty of contempt for disobeying said writ of mandate; that at the hearing of said contempt proceedings, to wit, on June 14, 1907, this petitioner answered setting forth his appointment as secretary and resignation as aforesaid; that he was not a party to the mandate proceedings; that evidence was introduced and the court made findings upon the facts alleged by petitioner (but it is not shown what the findings were), and thereupon the said court decreed that this petitioner was guilty of contempt, and imposed as punishment therefor that he be fined the sum of $100, or be imprisoned one day for each $2 thereof.

Under the facts as they appear, the question is: Had the court jurisdiction to punish petitioner for contempt of the writ issued in a proceeding brought against Egilbert alone, to which proceeding at no stage was this petitioner a party, and in which he had no opportunity to be heard and was not heard? In our opinion the question must be answered m the negative. Whether or not petitioner was the successor of Egilbert as secretary, he was not bound by anything adjudged in the proceedings against Egilbert alone. Ex parte Tinkum, 54 Cal. 201. It was there held that the successor in office of the county treasurer could not be punished for contempt for refusing to obey a writ issued against his predecessor, who had gone out of office when the writ issued; that the judg ment of the court against the former treasurer "had no validity against the petitioner, as his successor in office, because the court had not, by any proper proceedings had or taken in the action, made the petitioner a party defendant in the action." See Ex parte Widber, 91 Cal. 367, 27 Pac. 733; Ex parte Truman, 124 Cal. 387, 57 Pac. 223. See, also, Sargent v. Cavis, 36 Cal. 552; Ex parte Hollis, 59 Cal. 405.

The judgment adjudging petitioner guilty of contempt, and imposing punishment therefor, is hereby vacated and declared to be null and void.

We concur: HART, J.; BURNETT, J.

(6 Cal. A. 174)


(Court of Appeal, Third District, California. July 31, 1907.)



The court may treat a notice of intention to move for a new trial as filed on the day on which it was served and was handed to the clerk, though for some unexplained reason he failed on that day to indorse it as filed; he having three days later, on his attention being called to it, marked it as filed as of the day it was left with him, and his failure to mark it on that day having been through no fault of plaintiff's attorney who handed it to him, though the fee was not then paid, no fee having been demanded, and there having been no refusal to file, and the clerk testifying that the failure to pay made no difference.




As against the recitals of a tax deed that the assessment was made under a certain act, and the provisions of the tax laws that a tax deed is prima facie evidence that the assessment was levied according to law, the statement in a letter of the grantee in the deed is no evidence that the assessment was under another act, in which case it would be irregular.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 45, Taxation, §§ 1555, 1565.]


The assessment of land in the name of another than the owner does not make it or the tax sale thereon invalid.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 45, Taxation, § 701.]



The description in a tax deed, "strip of 50 acres on the north line of fractional N. W. of section 7," is insufficient.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 45, Taxation, §§ 1520, 1521.)

5. ADVERSE POSSESSION-PAYMENT OF TAXES. Under Code Civ. Proc. § 325, requiring one, as a condition to establishing title by adverse possession, to occupy it for five years continuously, and pay all the taxes, the running of the statute is interrupted by the true owner paying the taxes in any of such years prior to the payment thereof by the adverse claimant.

[Ed. Note. For cases in point. see Cent. Dig. vol. 1, Adverse Possession, § 526.]

Appeal from Superior Court, Tulare County; W. B. Wallace, Judge.

Action by the Commercial National Bank of Ogden against John J. Schlitz. From an order granting plaintiff a new trial, defendAffirmed. ant appeals.

C. L. Russell, for appellant. T. E. Clark, for respondent.

CHIPMAN, P. J. Action to quiet title. Findings and judgment were in favor of defendant. Plaintiff moved for a new trial, which was granted, and defendant appeals from the order.

Defendant urges that there was no proper bill of exceptions before the trial court on. which to base a motion for a new trial, for the reason that the notice of intention was not filed in time. The notice of decision was served on plaintiff's counsel April 17,

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