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says, "She commenced shooting,' and he says, meaning, or the witness having misunder'I threw up my hands and hollered, "for stood him. It frequently happens, also, that God's sake stop. You have shot me now;" the witness, by unintentionally altering a few and he says, 'I was retreating back in the of the expressions really used, gives an effect bedroom as fast as I could,' and he says, to the statement completely at variance with 'She kept on shooting and me bleeding.'

He

what the party actually did say." Greenleaf was just merely relating what he had relat

on Evidence (14th Ed.) § 200. In 1 Ened to Connelly and myself. She turns right cyclopædia of Evidence, p. 367, the rule is around to me and looks at me and says: stated as follows: "So the silence of a party 'Yes,' she says, 'he ought to have stopped | when a statement is made in his presence when I told him to. I don't know but what against his interest, and is heard and underthat is about all of the story."

stood by him, and is made in such way as It is the contention of counsel for the ap

to call upon him to deny it, if untrue, and pellant that the admission of these recitals

the facts are within his knowledge, and the in evidence was error. They argue, first, statement is made under such circumstances that it was not shown that they were made.

as naturally to call for a reply, amounts to in the presence or hearing of the respondent,

an admission of the truth of the statement or, if in her hearing, that they were not

made, and may be sufficient to establish the made under such circumstances as called

fact as against him." In People v. Koerner, for a denial upon her part; and second, that

154 N. Y. 355, 374, 48 N. E. 730, 736, the rule if any part of it was admissible the court

is stated as follows: "That, under some ciropened the door too wide, in that he permit

cumstances, admissions by a party may be ted the witnesses to recite statements de

implied from his acquiescence in the statenunciatory of the appellant which could not

ment of others, is an established principle of have been evidence against her even had

the law of evidence. A party's acquiescence, the person making the statements been up

to have the effect of an admission, must exon the witness stand himself. But, before discussing these objections, It

hibit some act of voluntary demeanor or is necessary to notice for a moment the legal

conduct. When the claimed acquiescence is

in the conduct or in the language of others, aspects of the question. Counsel for the state contend broadly that any statement or

it must plainly appear that such conduct or declaration of the person injured made to a

language was fully known and fully underthird person, in the presence or hearing of

stood by the party before any inference can the accused, either charging him directly

be drawn from his passiveness or silence. with the crime or pertaining to matters other

Moreover, the circumstances must not only be wise relevant to the issue, if not denied by

such as afforded bim an opportunity to act the accused, may be given in evidence against or to speak, but also such as would properly him as an admission on his part. On the or naturally call for some action or reply other hand, the appellant contends that the

from men similarly situated. Declarations mere presence or hearing of the accused is or statements made in the presence of a party not alone sufficient to render the evidence are received in evidence, not as evidence in admissible, but the statements must relate themselves, but to ascertain what reply the to the matter at issue, must be addressed to party to be affected makes to them. If he is the accused, or made under such circum- silent when he ought to have denied, the stances as would ordinarily and naturally presumption of acquiescence arises. But it call for some action or reply from persons is clearly otherwise when his silence is of a similarly situated, and that, if the condition character which does not justify such an inbe one of doubt as to whether a reply should ference. Thus, when a person is asleep, or or should not have been made, the evidence intoxicated, or deaf, or a foreigner unable to should not be received. There are cases understand the language employed, he canwhich support the respondent's contention not be prejudiced by statements made by many of which are collated in its brief. But others in his presence. Nor is such silence an we think the better authority is with the assent, unless the statements were such as appellant. Greenleaf, in his work on Evi- to properly call for a response." See, also, dence, while stating that admissions may be Davis v. State, 131 Ala. 10, 31 South. 569; implied from the silent acquiescence of a Ackerson v. People, 124 Ill. 563, 16 N. E. 847; party in the statements of another, adds that Commonwealth v. Brown, 121 Mass. 69: Peonothing can be more dangerous than evidence ple v. O'Brien, 68 Mich. 408, 36 N. W. 225; of this kind, and that it should always be re- State v. Swisher, 186 Mo. 1, 84 S. W. 911; ceived with caution, and never received at all Phelan v. State, 114 Tenn. 483, 88 S. W. unless the evidence is of direct declarations

1040; People v. Amaya, 134 Cal. 531, 66 Pac. of that kind which naturally calls for con- 794; and in this court the question suggesttradiction, and then makes this general obser- ed, while it has not been before us in the vation: "The evidence, consisting as it does form here presented, is not entirely new. in the mere repetition of oral statements, is In Miller v. Territory, 3 Wash, 554, 19 Pac. subject to much imperfection and mistake; 50. where it was shown that the accused the party himself either being misinformed, when arrested and charged with the murder or not having clearly expressed his own l of one of his neighbors displayed some agitation, and afterwards, when brought into say that she ought to have opened the door presence of the body of the murdered man and denounced them as falsehoods, or that and accused directly of the crime, made no she should have interrupted her conversation answer, but turned away, and refused to with Steele to declare to him their untruth it again look upon the corpse, the court said she did not intend to acquiesce in them. that there was nothing in the defendant's We think, too, that the second ground of conduct “which the most ingenious imagina- the appellant's objection is well taken. Both tion could torture into an incriminating act." the prosecuting attorney and the trial judge In State v. McCullum, 18 Wash. 394, 51 Pac. seem to have proceeded on the theory that 1014, the defendant was jointly informed anything said by the deceased at this time against with one Wilson for having burglariz- touching his relations with the appellant was ed a saloon building and stealing therefrom admissible as an admission on her part. The a quantity of cigars. On his trial an officer questions propounded to both Connelly and was permitted to testify that Wilson made Steele, it will be noticed, called for the ena confession to him implicating McCullum; tire recital made by Jr. Baruth, regardless that he had McCullum and Wilson brought of its relevancy to the question in hand. The before him, when Wilson repeated his state- witnesses were permitted to detail his statement, and that McCullum when asked what ments concerning the appellant's conduct to he had to say concerning it said there was wards him at other times than at the time of nothing in it. It was held error to admit this the shooting, the fact that he was at one time testimony, the court saying: "The fact that possessed of considerable property which he in this case Wilson's statement was made in lost through her misconduct, and even the the presence of the appellant and directed in expressions of malice and hatred the deceased part to the appellant did not thereby render made against her. Manifestly this was imit admissible. The fact that it was so made properly admitted. Her conduct towards him loses force when we come to consider that at other times than at the time of the shootappellant was not voluntarily present did not ing as related by these witnesses could hardacquiesce in it, and was obliged to remain ly bave been admissible as evidence had the and listen to it whether he would or not." deceased himself been on the stand, testifyAnd in McCord v. Seattle Electric Co. (Wash.) ing for the state, much less was it admissible 89 Pac. 491, it was held that the statement when its only relevancy rests on the asof a third person concerning who was to sumption that the appellant admitted the blame for a street collision, made to the truth of the recitals by her silence. Tlie plaintiff while she was recovering from the statement concerning the loss of his property shock of the accident, was not admissible as was irrelevant for any purpose, and his exan admission by her, since under the cir

pressions of malice and hatred towards the cumstances she could not reasonably have

witness, while perhaps harmless under norbeen expected to reply to it.

mal conditions, were here highly prejudicial, Adopting the rule contended for by the ap- since the recitals under the circumstances pellant, it is plain that she has just cause detailed by the witnesses took on the guise for complaint against the broad ruling made

and solemnity of dying declarations, while by the trial court. All that the deceased

they were, in fact, nothing more than the said concerning the shooting itself and its

rancorous expressions of a partisan, bent on immediate cause, his conduct and the conduct

justifying his own conduct, and condemning of the appellant while it was going on, in

that of his assailant. The recitals should have fact, anything related by him that might

been confined to what was said concerning properly be said to be a part of the res

the immediate offense. See People v. Smith, gestæ, while the parties were in the position

172 N. Y. 210, 231, 64 N. E. 814. described by the witness Connelly, was prop

The appellant called as a witness one Dr. erly admitted. The position of the parties at Byrne, and proceeded to interrogate him conthat time was such that it can be said that

cerning the character of the wounds received the statements were made in the presence by Baruth, whether or not they were mortal, of the appellant, and the circumstances were or of such a nature as to necessarily cause such that she might reasonably have been death. On an objection being interposed, the expected to reply, had she not intended to

appellant's counsel stated that he purposed acquiesce in them. But this is as far as the

to show "that the wounds received by the statements were admissible. Anything said deceased as proven in this case were not by him after the witness Steele left the room, mortal wounds; that the best authorities closed the door between the two rooms, state that in wounds of the upper arm death and engaged the appellant in conversation results in approximately 1 per cent. of the could not be admissible. Even if she could cases; that septicæmia or blood poisoning is under those circumstances hear if she listen- not the usual or necessary consequence of ed acutely the recitals made by the deceas- bullet wounds; that the Welch or gas baciled, clearly the circumstances excused her lus does not of itself cause death, and that, from replying to them. The statements were if it was present in the wound, it would have not addressed to her, neither were they made shown in the internal organs of the deceased; in her presence. She could not be certain and that the treatment afforded the deceased that Steele heard them, and it is too much to by the physicians in charge was not the best medical treatment." On this statement being party, persons whose interest in the subjectmade, the court excluded any further evi

matter is determined by the judgment appealed

from, and which interest will be injuriously dence concerning the nature of the medical

affected by its reversal, are adverse parties. ,treatment, to which ruling the appellant duly

[Ed. Note.-For cases in point, see Cent. Dig. excepted and assigns the same as error. It

vol. 2, Appeal and Error, $$ 2137, 2138.] is at once manifest that the statement of 2. COCRTS--JURISDICTIOX-MECHANICS' LIENS counsel, even if proven, would afford no de- -MOUNT IN CONTROVERSY. fense to the crime charged against the appel

When the superior court acquires jurisdic

tion by the filing of a suit to enforce a lien of lant. Where one unlawfully inflicts upon the

mechanics' and others, under the statute relatperson of another a wound calculated to en- ing to such liens, it has jurisdiction to render danger or destroy life, it is no defense to a

judgment for the amount claimed, though less charge of murder where death ensues to

than $300 and though the right to a lien is de

nied. show that the wounded person might have

3. APPEAL-NOTICE-ADVERSE PARTIES. recovered if the wound had been more skill

Code Civ. Proc. $ 940. require the service fully treated. Even unskillful or negligent of a notice of appeal on the adverse party, treatment of the wound on the part of the Section 1193 provides that, where a lien is filed

on an indebtedness due from the original conwounded person or his physicians which may

tractor to the lien claimant, the original conhave aggravated the wound and contributed

tractor shall defend at his own expense ; that to the death does not relieve the assailant during the action the owner may withhold from from liability. He must show that the negli

the contractor the amount for which the lien

is filed; that on judgment against the owner or gent and unskillful treatment was the sole

his property he shall be entitled to deduct the cause of death, before he can escape the con- amount thereof from any sum due the contract. sequences of his unlawful act on this ground.

or; and that, if the judgment exceed the amount State v. Edgerton, 100 Iowa, 63, 69 X. W. 280;

due, he may recover the excess from the con

tractor. In an action to enforce a mechanics State v. Landgraf, 95 Mo. 97, 8 S. W. 237, 6 lien, a personal judgment for $178 was rendered Am. St. Rep. 26; Daughdrill v. State, 113 against defendant contractor, a lien on the lot Ala. 7, 21 South. 378; Sharp v. State, 51

of the owner being decreed, with a provision for

the sale thereof, and a deficiency judgment Ark. 147, 10 S. W. 228. 14 Am. St. Rep. 27; against the contractor if the proceeds of the State v. Strong, 153 Mo. 548, 55 S. W. 78; sale were insufficient to pay the judgment. Denman v. State, 15 Neb. 138, 17 N. W. 347; Held that, on appeal by the owner, the conWharton on Homicide (3d Ed.) $ 35. Jeas

tractor was not an adverse party on whom a

notice of appeal should have been served. ured by this test, the court did not err in

[Ed. Note.-For cases in point, see Cent. Dig. excluding the proofs offered. These proofs vol. 2, Appeal and Error, $ 2138.] did not tend to show that the subsequent

4. CONTRACTS-SUBCONTRACTORS. treatment of the wound was the sole cause A subcontractor is not bound by the terms of the death, but that the treatment was un- of the original contract where the same are not skillful, and, at most,' only contributed there

embodied in the contract between him and the

original contractor, to. This did not constitute a defense.

5. SAME-WARRAXTIES. The remaining assignments of error re- Under Civ. Code $ 1770, providing that one quire no separate consideration. The legiti

who manufactures an article under an order for mate evidence was sufficient to make a case a particular purpose warrants by the sale that for the jury, and no error was committed by

it is reasonably fit for that purpose, a contractor

who uses the materials called for by the specifithe court in refusing to sustain the appel

cations in plastering the walls of a building. lant's challenge thereto. Xor can we consider and does the work according to the contract, the assignment based on the failure of the

is not liable under an implied warranty that the

walls should be white. court to give cautionary instruction concerning the evidence, relating to the appellant's In Bank. Appeal from Superior Court, admission by silence. While doubtless cau- Sacramento County ; J. W. Hughes, Judge. tionary instructions would have been proper, Action by D. J. Mannix against William yet none were requested by the appellant, M. Tryon and another. From the judgment, and it is the rule in this state that even posi- defendant Tryon appeals. Modified, and, as tive errors must be called to the attention of modified, affirmed. the trial court, and that court given a chance See 81 Pac. 278. to correct them before they can be available

A. L. Shinn and R. L. Shinn, for appellant. here. For the error above noticed, the judgment

R. Platnauer, for respondent. is reversed, and a new trial granted.

LORIGAN, J. This is an action to foreHADLEY, C. J., and RUDKIX, CROW, close a mechanic's lien. The defendant Tryon, ROOT, DUNBAR, and MOCYT, JJ., concur. owner of a lot in the city of Sacramento, con.

tracted with the defendant Harris to erect a (1.52 Cal. 31)

three-story building according to certain MANNIX v. TRYON et al. (Sac. 1,507.)

plans and specifications. The plaintiff, as a

subcontractor, entered into a contract with (Supreme Court of California. Sept. 19, 1907.)

the original contractor, Harris, to do the 1. APPEAL-XOTICE-ADVERSE PARTIES - WILO ARE-STATUTORY PROVISIOxs.

plastering and hard finish work according to I'nder Code ('ir. Proc. $ !-10. providing for

said specifications, and, claiming to have per: the service of notice of appeal on the adverse | formed it, and that a balance of $178 was due

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him therefor, Aled a lien and commenced this or the decree appealed from, or the modificaaction against the original contractor and tion sought by the appeal." Randall v. Huntthe owner of the lot to enforce its payment. er, 69 Cal. 80, 10 Pac. 130; Green v. Burge, A personal judgment was rendered in favor 105 Cal. 52, 38 Pac. 539, 45 Am. St. Rep. 25; of plaintiff against the original contractor, Pacific Mut. Life Ins. Co. v. Fisher, 106 Cal. Harris, for the amount claimed, and it was 224, 39 Pac. 758; Mohr v. Byrne, 132 Cal. then further decreed in the judgment that a 250, 64 Pac. 257. lien on the lot of the defendant Tryon existed If this is the relation which the original in favor of plaintiff for said amount, provid- contractor, Harris, bears to the appeal, if ed for a sale of the lot and the application of his interest in the judgment appealed from is the proceeds to the payment of the judgment, such that its rerersal will injuriously affect and, in the event that the proceeds were in- him, then as an adverse party he should have sufficient for that purpose, that there be been served with the notice of appeal. Re "docketed a judgment against the defendant spondent insists that such is his relation to J. E. Harris for the amount of such deficiency it, bis contention being that it is to the interwhich may remain unpaid on the judgment est of the original contractor that the judgof plaintiff, and that plaintiff have execution ment of the trial court establishing the lien against the defendant for the amount there- should stand, because, by enforcing the lien of." The defendant Tryon appealed from the against appellant's property, a sufficient sum judgment, a bill of exceptions accompanying might be realized through a sale of it to fully his appeal therefrom, and served his notice of discharge the indebtedness due to plaintiff appeal on the plaintiff alone. The notice of and relieve the original contractor from all appeal given by defendant Tryon was only in- obligation to plaintiff; that to reverse the tended to embrace an appeal from the judg- judgment so as to defeat the lien would de ment in so far as it affected him by decreeing prive the original contractor of such advana lien upon his property, providing for the tage under the judgment establishing it, and sale thereof and application of the proceeds leave him subject to have the personal judgto the satisfaction of the claim of plaintiff. ment recovered against him enforced under The original contractor, Harris, against whom execution. In this view, it is insisted by rethe personal judgment was entered, took no spondent that, as the original contractor will appeal, nor was any notice of appeal served be injuriously affected in his interest if it is on him by the appellant Tryon. The District reversed, it was essential that notice of apCourt of Appeal for the Third Appellate Dis- peal be served upon him. trict, before which this matter came up orig- The position of appellant is that a reversa) inally, dismissed the appeal on motion of re- of the judgment so far as the lien is concernspondent, on the ground that Harris, the orig- ed, which alone is involved on this appeal, inal contractor, was an adverse party within cannot injuriously affect the original contracthe meaning of section 940 of the Code of Civ- tor; it being asserted that, if the lien be

Procedure, and should have been served eliminated from the judgment by a reversal, with notice of appeal; that he was interested the effect would be, although no appeal was in maintaining the judgment of lien; that a taken by the original contractor therefrom, reversal of the judgment in that respect to destroy the personal judgment against would be against his interest; and, not hav- him; that within the doctrine of Miller v. ing been served with such notice, the court Carlisle, 127 Cal. 327, 59 Pac. 785, the juriswas without jurisdiction to determine the ap- diction of the superior court to entertain this peal on its merits. A petition by appellant action as the claim was for less than $300, For a further hearing and determination of depended solely on the assertion of the right the cause before this court was granted, and of lien and its establishment by that court, upon the hearing here the motion to dismiss and, if it should be determined upon this ap). the appeal is renewed and submitted with the peal that there was no lien, then as the submission of the cause upon its merits. amount of the claim asserted was less than

The rule, of course, is that, in order to $300 the superior court had no jurisdiction confer jurisdiction upon an appellate court to to enter a personal judgment against the orig. entertain an appeal, all adverse parties-par- inal contractor for $178; that the personal ties to the controversy whose interests would judgment is void and falls with the reversa) be injuriously affected by a reversal of the of the judgment establishing the lien ou judginent-must be brought before the court.

which jurisdiction of the superior court in. Persons whose interest in the subject-matter the cause alone depended. And it is further inis determined by the judgment appealed sisted by appellant that even if, as claimed by from, and which interest will be injuriously respondent, the personal judgment against the affected by its reversal, are adverse parties contractor is a valid one which would be unwithin the meaning of section 940 of the Code affected by this appeal, the contractor could of Civil Procedure upon whom notice of ap- not be prejudiced by a reversal of the judypeal must be served. It is said “an adverse ment establishing the lien; that the liability party to an appeal means the party whose or the contractor for the full amount of the interest in relation to the subject of the ap- claim is fixed by it, and such liability would peal is in conflict with a reversal of the order not be affected whether that portion of the judgment establishing the lien be reversed or brought thereon at his own expense; that affirmed.

during the pendency of the action the ownes It is only proper in connection with this may withhold from the contractor the amount statement of appellant's position to say that of money for which such lien is filed; that, when his briefs were filed and the case of in case of judgment against the owner or his Miller v. Carlisle was cited and relied on in property upon the lien, he shall be entitled support of that position, the case of Becker to deduct from any amount due the contracv. Superior Court (Cal.) 90 Pac. 689, had not tor the amount of such judgment and costs, been decided. In this latter case a conclusion and, if the amount thereof shall exceed the was reached that the rule stated in Miller v. amount due by the owner to the contractor, Carlisle was not the correct one, but, on the or if he has settled with the contractor in contrary, the true doctrine is that when the full, he shall be entitled to recover back from superior court acquires jurisdiction by the "he contractor any amount paid by him in exfiling of a suit to enforce a lien of mechanics cess of the contract price and for which the and others, under the statute relating to such contractor was originally the party liable. liens, it has jurisdiction to render a personal It appears from the record here that there judgment for the amount claimed, although is in the hands of the appellant, owner of the right to a lien is denied and the amount tbe lot, over $1,900 due from him to the claimed is less than $300. We mention this original contractor. Under these circumstanin justice to appellant, while at the same time ces, while it may be said theoretically and a reference to this latter case of Becker v.

on the face of the judgment itself that the Superior Court shows that the personal judg

contractor would be benefited by having the ment entered against the original contractor judgment of lien stand and satisfaction of in this case is a valid, subsisting judgment,

the claim of plaintiff had by a sale of the which, as it is not appealed from, stands un

owner's property, yet, practically and by viraffected or unaffectable by any action which

tue of the section of the Code referred to, no this court may take on the appeal of appel- advantage or benefit accrues to him at all lant involving the validity of the lien. Un- thereby. In any event-reversal or affirmder this personal judgment, the primary obli

ance-his primary liability for payment of gation to pay the amount due plaintiff is fix

the claim to plaintiff remains unaffected uned upon the original contractor; such pri

der the personal judgment obtained against mary obligation being secured by a lien en

him. Under any theory he can only claim forced against the property of the owner.

that he would be injuriously affected by a This being the condition and effect of that

reversal because under the judgment as it judgment, it will be seen upon a little re

stands he is benefited by the enforcement of flection, and consideration of the record be

the lien. But, under the section of the Code fore us on its merits, that it can be of no mo

referred to and upon the record, this theory

is illusive. If the judgment establishing a ment to the contractor whether upon this ap

lien stands and is enforced by a sale of the peal of Tryon, the owner, it be determined the lien is valid or invalid-whether the judg

property, or is discharged by the owner

through payment of the judgment, the owner ment as to it be affirmed or reversed. We

is entitled to reimburse himself from the say, upon the record before us, because it is

moneys in his hands due the contractor, upon an examination of that record in con

which in this particular case the record nection with the rights of owners charged

shows are ample for that purpose. All this with a lien as against original contractors

being true, it is obvious that in this particunder the mechanic's lien law, that we feel

ular case on a consideration of the motion satisfied warrants a conclusion that no right

on the merits of the appeal neither an affirmof the original contractor here can be affect

ance nor a reversal of the judgment so far ed adversely or at all by a reversal of the

as it establishes a lien against appellant's judgment as to the lien. It, of course, ap

property could be of any advantage to the pears from the record before us that the pri- | original contractor.

original contractor. If it were reversed, he mary obligation to pay the indebtedness for would be still liable under the personal judg. which the judgment was obtained was upon ment against him, which is unaffected by the original contractor. He was personally this appeal, and under which the primary responsible to the subcontractor for the pay- liability on his part to plaintiff is fixed, and, ment of the claim under his contract with if it were allirmed, the owner would have him. The law merely gave the subcontractor, the right, which in this case could be efin default of payment by the contractor, a fectively exercised of reimbursing himself or right of lien against the owner's property en- discharging the judgment as a lien against forceable by foreclosure to secure the pay- his property from moneys in his hands due ment which the contractor was primarily ob- the original contractor, or could pay the ligated to make. But the law also (section

But the law also (section judgment in discharge of the lien to the sub1193, Code Civ. Proc.) provides that, where a contractor directly. Under this view, it aplien is filed against the property of the owner pears to us that it is a matter entirely imon an indebtedness due from the original con- material to the original contractor whether tractor to the lien (laimant, the original con- it be decided on appeal that the portion of tractor shall defend against any action the judgment decreeing a lien be valid or in

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