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covery, in our opinion, is jurisdictional, and has jurisdiction, since the language of section may be examined upon habeas corpus.

13, art. 3, of the insanity law provides that We can see no more authority for detaining the application authorized by it is to be made an inmate of a state hospital against his will, "to the superior judge of the county in which after he has become restored to reason, than the hospital is located.” The section also profor detaining a prisoner upon conviction of vides as follows: "Upon the return of such crime after he has served out his sentence, or writ the fact of his insanity shall be inquired for detaining a person upon a criminal charge into and determined.” The act does not refor an act to which the law attaches no crim- quire the hearing to be before the judge-elect inality, and in this latter case the prisoner of the superior court of the county. He may would be entitled to his discharge for lack of be disqualified to act by reason of relationship jurisdiction to hold him. Ex parte Kearny, to the petitioner or for other cause. Section 71, 55 Cal. 212. If Buchanan has recovered his Code Civ. Proc., provides that “a judge of any reason, the commitment under which he is superior court may hold the superior court in held will not justify his further detention, for any county, at the request of the judge it operates only so long as the inmate is in

of the superior court thereof; sane.

and such judge "shall have the same Counsel for plaintiff say in their brief that power as a judge thereof." In re Newman, the learned judge (defendant) held at the hear- 75 Cal. 213, 16 Pac. 887. Defendant claims ing that he had the power to inquire into and that if this Code section supports plaintiff, adjudge the question of Buchanan's sanity, which we think it does, it must be held to be but had not the power to discharge him or or- in violation of section 8, art. 6, of the conder him returned to the sheriff of Yuba county; stitution, which reads: "A judge of any suthat the judge could only send him back to the perior court may hold a superior court in any hospital, and leave the enforcement of his county,” etc. The argument is that this prorights to some other appropriate proceedings. vision expressly limits the jurisdiction of the It is hence argued that this is a misconcep- judge requested to act for another to holding tion of the functions of the writ, and concedes a superior court of the county to which he is the duty of the judge to remand Buchanan. called, and that in section 71, Code Civ. Proc., It is true that section 14, art. 3, of the in- the legislature has, without authority, added: sanity law, provides that the patient shall, up- "In either case the judge holding the court on the certificate of the superintendent that he shall have the same power as a judge thereof." has recovered, approved by the judge of the So far as I am aware, the constitutionality of county from which the patient was committed, this section of the Code has never before been be redelivered to the sheriff of such county, questioned, although cases have come here for and dealt with as provided by chapter 6 of the review where the question might have been Penal Code; but that is where the superin- raised. I believe the universal practice tendent acts. Where he refuses to act, and re- throughout the state has been, where a judge sort is had to the court, we think the judge of one county has been called by the judge of has the power, not only to adjudge the patient another county to hold the court of the latter, to be sane, but to order him redelivered to or where the governor has requested him to the sheriff, to be dealt with under the Penal do so, to accord to the judge thus called all Code. Section 1481 of that Code declares that the powers of the judge of the court to which the court or judge "shall dispose of such party he is called. I do not think the Code has enas the justice of the case may require.” Sec- larged the powers given by the constitution, tion 1493 provides: “In cases where any party In the absence of the clause in section 71, addis held under illegal restraint or custody, or ed to section 8, art. 6, of the constitution, we any other person is entitled to the restraint or would hold the power to exist. Any other custody of such party, the judge or court may construction would make the provision of little order such party to be committed to the re- value, would defeat the manifest intention of straint or custody of such person as is by the constitution, and would disturb many law entitled thereto." In his petition Buchan- | judgments of our courts in numerous classes of an does not ask to be restored to his freedom. cases which have been rendered upon the He asks to be redelivered to the sheriff of hitherto unquestioned belief that the judge for Yuba county, to be there put upon trial un- the time possesses all the powers of the judge der the charge resting against him. We can whom he represents. We advise that the writ see no reason why the court or judge should be denied. not have the power by an order to direct that Buchanan be redelivered to the sheriff as We concur: COOPER, C.; GRAY, C. prayed for by him, should he be found to be

Why should he be remanded to the PER CURIAM. For the reasons given in custody of the superintendent, who would no the foregoing opinion, the writ is denied. longer have authority to detain him? Or why should he be required to resort to some other MCFARLAND, J. (concurring). I concur in proceeding in order to obtain the relief which the judgment because I see no way to hold he may have in the habeas corpus proceeding? otherwise consistently with the sacred right of

2. Defendant makes the point that the judge the citizen to invoke the remedy of the writ of the superior court of Napa county alone of habeas corpus. Some slight impairment of


the efficiency and discipline of insane asylums of the many propositions urged by appelmay possibly follow; but it is not to be as- lant, the following is the only one which sumed that a judge of the superior court will need receive attention, for it is determinative declare a man to be sane contrary to the judg. of the controversy: In this discussion it will ment of the superintendent of the asylum, ex- be assumed that the plaintiff satisfactorily cept in a very clear and strong case.

established his relationship to the company

as its employé, and it will further be as(126 Cal. 587)

sumed that the evidence was sufficient to VIZELICH V. SOUTHERN PAC. CO. show that the water tank of the engine was (Sac. 528.) ?

insecurely fastened. As to the allegation of (Supreme Court of California. Nov. 8, 1899.)

the negligent condition of the track and

switch, we think it clear that the evidence INJURY TO EMPLOYE-PROXIMATE CAUSEFELLOW SERVANTS.

would not support a finding in plaintiff's faThe proximate cause of the injury is the vor upon that ground. The trial judge was negligence of a fellow servant, thus preventing of the same opinion, and little point is made recovery, where & collision of a switch engine

of this matter in the briefs. The case, then, with a train was caused by negligence of the brakeman in manipulating the switch, and the

is one where an employé seeks to recover for water tank of the engine, insufficiently secured personal injuries sustained by him by reason to withstand the shock of the collision, was of the defective condition of the appliances thereby thrown forward onto a brakeman riding furnished to him by the employer. In such on the engine.

cases he can recover only when the defective Department 2. Appeal from superior court, machinery or appliance was the proximate San Joaquin county.

cause of the injury. Ordinarily this question Action by Harry G. Vizelich, an infant, by is one of fact for the jury, under proper inhis guardian ad litem, against the Southern structions; but, where the facts are not in Pacific Company. Judgment for plaintiff. De- dispute, it may become a question of law for fendant appeals. Reversed.

the court. If the question is debatable,-one Dudley & Buck, for appellant. Rodgers &

upon which reasonable minds may take opPatterson and R. B. Terry, for respondent,

posing views,-it should, of course, be submitted to the jury; but, where it is clear and

unmistakable that the proximate cause is one HENSHAW, J. This action was to recover other than that upon which the cause of acdamages for personal injuries sustained by the tion rests, it is for the court so to declare. plaintiff while in the employ of the defend. In this case it appears without conflict that ant. The cause was tried before a jury, the proximate cause of the injury was the which rendered a verdict for plaintiff. From negligence of the fellow employé who misthe judgment in his favor which followed, placed the switch and caused the collision. and from the order denying defendant's mo The case is paralleled by that of Trewatha tion for a new trial, these appeals are prose- V. Milling Co., 96 Cal. 494, 28 Pac. 571, and cuted.

31 Pac. 561. There an employé of a mining Plaintiff averred that he was in the employ company, being hoisted from the mine in a of the defendant at the time of the accident. bucket, was hurled against the sheave and He was employed as a brakeman and an ex- injured. He charged the company with negtra switchman in the railroad yards at Stock- ligence in failing to furnish necessary and ton. At the time of the accident he was rid- proper hoisting appliances. It was shown ing in the cab of a switch engine. This en- that the engineer hoisted the plaintiff from gine collided with a train standing upon the the mine with dangerous speed. This court side track. The water tank of the switch en- said: “We do not think the verdict and gine moved forward, and crushed the leg of judgment can be sustained, even if it be adplaintiff, necessitating amputation. It is char- mitted that the appliances complained of ged that the cause of the accident was the were as defective as it is claimed they were. negligence of the defendant in improperly The immediate and proximate cause of the maintaining its track and switch at the place injury sustained by plaintiff was very clearly of the accident, and also, in a separate count, shown to bave been the negligence of his cothe imperfect and defective condition of the employé.

Nothing but carelessness water tank upon the switch engine, which can account for the fact that the engineer was negligently and insecurely fastened. allowed the bucket to be hurled against the Upon the trial it was made to appear with- sheave, twenty-three feet above the upper out conflict in the evidence that the switch platform, whether he supposed he was hoistengine had been used in and about the yarding a man or something else. But the rule for some time, and that in its ordinary use is that, where the promoting cause of the inno injury had ever resulted from the alleged jury is the negligence of a fellow servant, no insecure fastening of the water tank. It was recovery can be had, even though the maalso made to appear without dispute that the chinery or appliances be defective. This was collision was caused by the negligence of a so declared in Kevern v. Mining Co., 70 Cal. brakeman in manipulating the switch.

394, 11 Pac. 741, where the court said: "The * Rehearing denied December 8, 1899.

proximate cause of the injury is the object 59 P.-9

of inquiry, and, when discovered, must be re

(126 Cal. 600) garded and relied on. Hayes v. Railroad COMMERCIAL BANK OF SANTA ANA V. Corp., 3 Cush. 274. Even where machinery

PRITCHARD et al. (L. A. 695.) is defective, so that otherwise a recovery

(Supreme Court of California. Nov. 8, 1899.) might be had for an injury received, yet, if

LANDLORD AND TENANT-LEASES FOR YEARS the promoting cause of the injury is the neg. -REGISTRATION-ASSIGNMENT-MORTligence of a fellow servant, no recovery can

GAGE-FIXTURES. be had. Wood, Mast. & Serv. 812. The same

1. A lease of land for a term of years is a

conveyance of real estate, within Civ. Code, si rule must apply where the appliances for 1214, 1215, providing that every conveyance o* doing work are defective." It is well settled real property, other than a lease for one year, is that if injury has resulted in consequence of

void as against a subsequent purchaser whose a certain unlawful act or omission, but only conveyance” shall embrace every instrument

conveyance is first recorded, and that the term through or by means of some intervening by which any estate or interest in real property cause, from which last cause the injury fol- | is created, except wills. lowed as a direct and immediate consequence,

2. Under Civ. Code, & 2924, providing that the law will refer the damage to the last or

every transfer of an interest in property, other

than in trust as security, is to be deemed å proximate cause, and refuse to trace it to mortgage, an assignment of a lease of land as that which was more remote. Cooley, Torts security for the payment of a debt is a mort

gage. (2d Ed.) p. 73. It is here too plain to admit

3. Under Civ. Code, 88 658, 660, providing that of discussion that the proximate cause was real property consists of land and that which is the negligence of the fellow employé who affixed to it, and that a thing is deemed to be afcaused the collision. We leave the realm of

fixed when it permanently rests thereon, a ware

house, with concrete foundation, built by a lessee certainty, and enter upon that of conjecture,

on land held under a lease for a term of years, when we seek to go behind the proximate providing that he may remove it before the excause, and to inquire, as would become nec

piration of the term, is real estate, as between

the holder of a mortgage on the lessee's interest essary in this case, whether the company

in the land and a subsequent purchaser of the should have secured the water tank so as to warehouse. withstand a collision; whether, if fastened

Commissioners' decision. Department 2 with ordinary security, it would have with. Appeal from superior court, Orange county. stood the shock of this particular collision;

Action by the Commercial Bank of Santa and other questions of like uncertainty which

Ana against B. F. Pritchard and others. readily present themselves. Yet, notwith

From a judgment for defendant C. S. McKelstanding that it so convincingly appears that

vey, plaintiff appeals. Reversed. the proximate cause was the negligence of the switchman, and notwithstanding the fur

E. E. Keech, for appellant. McKelvey & ther fact that the utmost to which plaintiff Bowe, for respondent. could contend that he was entitled by way of instruction to the jury upon this question COOPER, C. Action for foreclosure of would be a charge to the effect that as they mortgage. Judgment for defendant McKeldetermined the proximate cause of the injury vey. Motion for a new trial denied, and to be through the negligence of a fellow em- plaintiff appeals from the judgment and orployé, or the defective appliance, so should der. their verdict be either for defendant or plain- The facts of, this case are substantially as tiff, the court in fact went much further than follows: On May 25, 1895, the Southern Calithis, and positively instructed the jury that, fornia Railway Company leased a small parif they found that the defendant failed to cel of land, described by metes and bounds, to provide a suitable roadbed, and an engine one Pritchard, for the term of five years from properly equipped with a tank securely fas- the date of said lease, at the nominal rent of tened, acd if this failure was the cause of the one dollar per year, for the exclusive purpose Injury to plaintiff, they must find in plain- of a warehouse site. The lease provided that tiff's favor, “notwithstanding the fact that it might be terminated by either party upon the brakeman, a fellow servant, was guilty 30 days' notice in writing, that upon its terof negligence in leaving the switch described mination the said Pritchard should have the as 'Switch B' open.” By this instruction the privilege of removing all improvements plajury was, in effect, charged that, if injury ced by him thereon, and that at its expiration resulted by reason of the defective appliance, the said Pritchard should have the privilege the defective appliance itself, as matter of of removal for a like period, and upon like law, became the proximate cause. But, as terms. After the execution of the lease, and has above been shown, it is clear, under the prior to the 12th day of August, 1893, said evidence in this case, that the proximate cause Pritchard built upon the land so leased a was the negligence of the fellow employé. grain warehouse, with concrete foundation, For the foregoing reasons, the judgment and 40 feet wide by 100 feet long; the same beorder appealed from are reversed, and the ing a frame building, with shingle roof. On cause remanded.

said last-named date the said Pritchard bor.

rowed from appellant $600, giving his promWe concur: MCFARLAND, J.; TEMPLE, issory note therefor, due one year after date, J.

and, to secure the said note, gave a mortgage upon "all that certain personal property sit- ! pear from the record to have made any defense uate and described as follows, to wit: One or contest. It is therefore not necessary to grain warehouse, with concrete foundation, discuss the rule as to the character of the shingle roof, and frame structure, size forty warehouse in case this were a contest between wide and one hundred feet long, situated at the lessor and lessee. The lease made by the Northam station, in Orange county, Califor- railway company to Pritchard was a conveynia, on the following described lands, to wit.” ance of real estate. Civ. Code, $ 1215; Garber Then follows a description of the lot so leas- V. Gianella, 98 Cal. 529, 33 Pac. 458. Pritched by Pritchard, by metes and bounds. The ard was, therefore, by virtue of the conveymortgage was verified by the mortgagor and ance, the owner of the estate thereby conveymortgagee as a mortgage of personal proper- ed, and of all the improvements placed by him ty and was properly acknowledged. It was upon the premises therein described, and of the by appellant filed for record, and was re- covenant for a renewal of his estate as therecorded in volume 2 of Chattel Mortgages of in provided. Being so the owner of the propOrange County. Thereafter, on October 9, erty, he could convey it by deed absolute, by 1896, the said Pritchard, to further secure the way of mortgage, or by an assignment of his said note, transferred and assigned to appel- lease. He did so convey it by way of mortgage lant the said lease. On June 3, 1897, the ap- to appellant, and afterwards by a transfer of pellant filed the said mortgage for record as the lease; and this long before the time rea real-estate mortgage, and it was recorded spondent claims to have purchased the warein book 13 of Real Estate Mortgages of said house as personal property. The court finds county. The promissory note was not paid, that Pritchard, in writing, and to secure the and appellant was the owner and holder of said note, assigned and transferred the lease to it at the time of the trial. All the above appellant October 9, 1896. The mortgage and facts were found by the court below, and the assignment of the lease both being made to court also made the following finding: "That appellant prior to the attempted transfer to the defendant Charles S. McKelvey is the respondent, and both being so made as securiowner and in possession of said warehouse, ty for the note of $600, it will not be necessary and at all times since the 27th day of Mày, to discuss the mortgage separately. This beA. D. 1897, has been, and now is, the owner ing the case, it must follow that on the 27th and in possession of said warehouse; and said day of May, 1897, the attempted transfer to defendant entered into possession of said respondent conveyed nothing, or, at most, only warehouse, and became the owner thereof, for conveyed the property subject to the lien of a good and valuable consideration, and took appellant thereon. Not only this, but the atthe same without any notice whatever of any tempted transfer as set forth in the finding claim by the plaintiff, or any lien held by the quoted only mentioned the warehouse, and not plaintiff against said warehouse. That the the lease. The transfer of the warehouse, if said defendant became the purchaser of, and personal property, would not transfer the lease, entered into the possession of, said ware- which the court found had been transferred to house, without any notice, constructive or oth- appellant. The court, after so finding that the erwise, of plaintiff's lien.” By reason of the lease had been transferred and assigned to apfinding just quoted, the learned judge of the pellant as security, finds that, by a sale of the court below refused to grant appellant a de- warehouse made long after the transfer of the cree of foreclosure, and found that respond- lease to appellant, respondent became the ownent was entitled to a judgment against appel- er and entitled to the lease, free and clear of lant; that he was the owner of the ware- any lien or claim of appellant. We cannot house and lease, and entitled to the control understand by what process of reasoning the and possession thereof free and clear of any court could find that the lease was transferred lien of the appellant. In this we think the and assigned to appellant October 9, 1896; court erred. The decision was evidently giv- that the warehouse on the leased premises was en upon the theory that the warehouse and conveyed to respondent May 27, 1897; and that lease were personal property.

from these facts alone the respondent became Counsel for appellant says in his brief that the owner of the lease, free of any lien or claim the decision of this case depends upon whether of appellant. The court evidently treated the or not the warehouse is personal property, and respondent as an innocent purchaser for a valcounsel for respondent say in their brief, “The uable consideration, without notice. Pritchard only question to be decided is, is the warehouse certainly was guilty of the utmost bad faith chattel or real property ?" This case does not towards appellant, in selling respondent the depend upon the principle that the lessee, as warehouse without letting him know anything against his lessor, upon the termination of the about the mortgage or lien of appellant. The lease would have the right to remove the ware- respondent, in his testiniony, says: “I had no house from the real estate described in the knowledge or information given me at any time lease. It does not appear that the lease has of the existence of any mortgage or lien upon ever been terminated, and no attempt has ever this property between Mr. Pritchard and the been made to remove the warehouse. Neither plaintiff. I knew nothing of the record. Had the lessor nor the lessee appears to have any no personal knowledge of anything. Mr. interest in this controversy. The lessor was Pritchard did not tell me about the mortgage not made a party, and the lessee does not ap- to the bank. I did not ask him. Made no inquiry. Did not make any search of the rec- Schurtz, 104 Cal. 427, 38 Pac. 92, it was held ords."

that fixtures attached by a lessee to leased The court found that respondent was a pur- property became a part of the realty, and rechaser for a valuable consideration without main so until they are severed, and, while so notice. It has been shown that the lease was attached, a mortgage of the leasehold interest a conveyance; that it had been assigned to ap- covers the fixtures. To the same effect are pellant as' security for the note of Pritchard. Ewell, Fixt. pp. 276, 277, and note 1, p. 277; It was therefore incumbent upon respondent to Jones, Mortg. $8 428, 435. In Griffin v. Mashow, not only that he was a subsequent pur- rine Co., 52 Ill. 130, a lessee of a lot of chaser for a valuable consideration, but that his ground erected a building thereon, under an conveyance was first duly recorded. Civ. Code, agreement with the lessor that the former $$ 1107, 1214; Thomas v. Vanlieu, 28 Cal. 617; might remove all the improvements placed by Warnock v. Harlow, 96 Cal. 306, 31 Pac. 166. him on the premises, or the lessor should pay It nowhere appears, either from the evidence for them at their appraised value. The lessee or the finding, that respondent ever recorded and owner of the improvements executed a his conveyance. It is provided by the Code of mortgage upon his interest in the premises, this state that every transfer of an interest in including the improvements; and it was held property, other than in trust, made as security that the property mortgaged was an actual infor the performance of another act, is to be terest in real estate, and became immovable, deemed a mortgage, except when, in the case possessing none of those attributes as perof personal property, it is accompanied by ac- sonal property which have shaped the law in tual change of possession, in which case it is regard to mortgaging such property. In the deemed a pledge. Civ. Code, $2924. The case of Knapp v. Jones (Ill. Sup.) 32 N. E. court having found that Pritchard assigned 382, it was held that a grain elevator built by the lease to appellant as security for the pay- a lessee. on ground held under a lease which ment of the $600, it was clearly a mortgage, provided that the lessor might terminate the within the definition just quoted. There is no lease on 60 days' notice, and that the lessee law in this state requiring conveyances to be might remove his buildings at any time before recorded. Bank of Ukiah v. Petaluma Sav. the expiration of the lease, was, together with Bank, 100 Cal. 590, 35 Pac. 170. A mortgage the leasehold estate, to be classed as real esis a lien upon everything that would pass by tate, so tha“ the holder of a recorded morta grant of the property. Civ. Code, § 2926. gage thereou had priority over a subsequent Therefore Pritchard, by the assignment of the execution creditor. It follows that the judglease as security, conveyed to appellant every- ment and order should be reversed, with directhing that would have passed by a grant of tions to the lower court to enter judgment for the property. A grant of the property made appellant in accordance with the views herein by Pritchard would have conveyed all his in- expressed. terest in the leased premises, including the warehouse. In determining whether the ware- We concur: GRAY, C.; CHIPMAN, C. house is real or personal property, we must apply the same rule that would be applied if PER CURIAM. For the reasons given in Pritchard had made a deed of grant of the the foregoing opinion, the judgment and order property to appellant. Real property consists are reversed, with directions to the lower court of land and that which is affixed to it. Id. 8 to enter judgment for appellant in accord658. A thing is deemed to be affixed to land ance with the views herein expressed. when it is permanently resting upon it, as in the case of buildings. Id. § 660. The ware- MCFARLAND, J. (concurring). I concur in house, 100 feet by 40 feet, with concrete foun- the judgment; but the opinion of the commisdation, would ordinarily permanently rest up- sioner might perhaps be construed as holding, on the land. In this case there is nothing to generally, that an estate for years in land is show that the building and concrete founda- real property, which, of course, is not so.

An tion did not rest upon the land, and it will be estate for years is, in its nature, personal proppresumed that it did; and hence, under the erty,--a chattel real; and it is subject, for definitions given, it is real estate. In the case most purposes,

the law which applies to of McNally v. Connolly, 70 Cal. 3, 11 Pac. 320, personal property. See Jeffers v. Easton, Eldthis court held that an engine, boiler, and ma- ridge & Co., 113 Cal. 345, 45 Pac. 680, where chinery in a flouring mill erected by a lessee the subject is discussed, and our Code division upon the leased premises, and securely attach- of property into real and personal is shown ed thereto by bolts and screws, were fixtures, to be substantially that of the common law. as between the lessee and his attaching cred- But by sections 1214 and 1215 of the Civil itors. In Lavenson v. Soap Co., 80 Cal. 245, Code a lease of land for a term exceeding one 22 Pac. 184, it was held that a gun-metal di- year is expressly made subject to the law gester, soap kettles, boiler, and candle ma- concerning the recordation of conveyances of chines, put into and attached to a building real property, and, as it is subject to that law, with the intention of using them for making the reasoning of the commissioner applies to soap and candles, were fixtures, and part of the case at bar. In my opinion, the question the realty, and would not pass, against a mort- whether or not the warehouse was so fixed to gagee, by bill of sale. In Breweries v. the soil as to be a part of the land, and thus

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