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belong to the owner of the fee, is not impor

(126 Cal. 677) tant. The owner of the fee is not claiming CITY OF SANTA ANA v. BALLARD, Judge. it, and the questions involved pertain to the

(L. A. 825.) leasehold interest, as between the present ap

(Supreme Court of California. Nov. 11, 1899.) pellant and respondent.


DAMUS. (126 Cal. 551)

Under Code Civ. Proc. $$ 650, 659, it is

the duty of the judge to settle a bill of excepODELL V. BUTTRICK et al. (Sac. 556.) tions or statement, when properly presented, (Supreme Court of California. Nov. 6, 1899.)

and, if it contains redundant or useless matter,

to strike it out, or order it stricken out, and to LANDLORD AND TENANT-UNLAWFUL DE- make the statement truly present the case; so TAINER-PLEADING.

that, petitioner having presented for settlement 1. A complaint in unlawful detainer by a ten- a statement on motion for new trial, and it being ant after expiration of his term is not defective, objected to merely because it contained the enbecause not stating the amount of the rent to be

tire transcript of the reporter's notes, and the paid, where it avers a lease for a certain yearly judge having refused leave to petitioner to rent, which was paid by defendant.

amend it in the particular mentioned, or in any 2. A finding in unlawful detainer against a

other particular in which it might be informal, tenant, after the expiration of his term, that deficient, or inaccurate, and having refused to defendant is still a tenant, is proper, as, though settle the statement, mandamus will issue to the term has terminated, the relation exists un

him to take proper steps to have the statement til the tenant surrenders possession.

amended, and, on its being amended, to settle Department 2. Appeal


from superior court, San Joaquin county.

McFarland, J., dissenting. Action by Mary Odell against Charles But- In bank. Application by the city of Santa trick and L. Buttrick. Judgment for plain- Ana for mandamus to J. W. Ballard, judge. tiff, and defendants appeal. Affirmed.

Writ granted. J. G. Swinnerton and Budd & Thompson, W. F. Heathman, for petitioner. for appellants. Louttit & Middlecoff, for respondent.

VAN DYKE, J. Mandamus to compel the

respondent, a judge of the superior court of TEMPLE, J. This is an action for an un- the county of Orange, to settle a statement lawful detainer by a tenant after the expira- on motion for a new trial. The application tion of his term. Defendants appeal from is made on notice for a peremptory writ. the judgment and from a refusal of a new The petitioner is plaintiff in an action in said trial. The court overruled a demurrer to the court of the county of Orange, brought by complaint, and it is charged that the ruling said city against D. Gildmat her et al. to conwas erroneous. The demurrer was for want demn a right of way for sewer purposes in of facts, for uncertainty, for ambiguity, and said city of Santa Ana. At the close of the that the complaint is unintelligible. It is testimony on the trial of the cause the court, now contended that the complaint is defect- upon request of the defendants, instructed the ive, because it does not state the amount of jury to bring in a verdict for defendants, on the rent to be paid. It is a verred that it the ground that there was no evidence to was for a certain yearly rent which was paid show the necessity for taking the land sought by defendants. As the cause of action is for to be condemned for the purpose mentioned, unlawfully holding over after expiration of and the jury thereupon brought in a verdict the term, no further statement upon the sub- as instructed. When the proposed statement ject was called for, or would have been ma- on motion for a new trial came up for settleterial if made.

ment, the defendants objected to the settleIt is said that the findings do not support ment of said statement on the ground that the judgment.

said statement contained a literal transcript 1. There must have been the conventional of the reporter's notes taken at the trial; but relation of landlord and tenant. This is it was not objected that it did not contain a clearly shown by the allegations of the com- fair and correct statement of the case, or plaint, and by the findings.

that it was not presented in due time. There2. It is said that the relation must have upon attorney for plaintiff and petitioner terminated, and the court finds that the de- asked leave of the judge to amend his statefendants are still tenants. It was necessary ment in the particular mentioned, or in any that the term should have ended, but the re- other particular in which said statement lation still continues until the tenant surren- might be informal, deficient, or inaccurate, or ders possession. See section 325, Code Civ. in which it did not comply with any law or Proc. Therefore finding 3 does not contradict rule of practice; but the said judge declined finding 2.

to allow plaintiff and petitioner to so amend 3. The evidence is very clear that the lease the statement by condensing from questions was entered into, and this is really not con- and answers to a narrative form, and refused troverted by the testimony of Charles But- to allow plaintiff and petitioner to amend its trick. The judgment and order are affirmed. statement in any respect, or at all, and refus

ed to settle said statement, and retains the We concur: McFARLAND, J.; HENSHAW, same in his hands, unallowed, unsettled, and J.


It is the duty of the judge to settle a bill , settle it, and the writ of mandate will issue to of exceptions or statement, when properly compel the discharge of the duty.” In Tibpresented; and, if it contains redundant or bets v. Banking Co., 97 Cal. 258, 32 Pac. 174, useless matter, it is his duty to strike it out, it is said the petitioner presented for settleor order it to be stricken out, whether the ment "quite a lengthy statement on motion parties assent thereto or not, and to make for a new trial to the judge of the superior the statement truly represent the case. Code court, and that he refused to sign it, or any Civ. Proc. $$ 650, 659. The practice of em- other bill of exceptions. In such case the bodying in the statement or bill of exceptions judge can be compelled by mandamus to setthe reporter's notes of the trial in bulk is tle the bill or statement." From the facts not justified by the law or good practice, and stated in the petition in this case, which are is reprehensible in the highest degree. The not controverted, the petitioner should have language of the Code is that the statement been allowed to amend his statement as proshall contain "so much of the evidence or posed, so as to avoid the objection raised, other matter as is necessary to explain" the and then have said statement settled and alobjections or points sought to be presented. lowed. A peremptory writ will therefore isAnd if attorneys, notwithstanding the fre- sue, directing the respondent to take such quent declarations of this court as to the steps as in his judgment may be requisite for proper practice, in order to save labor to

the purpose of striking out and omitting from themselves, or for other cause, continue to the proposed statement all redundant and insert the reporter's notes, instead of con- useless matter, and, upon the statement being densing the same, the trial Judge, in settling amended and corrected, to settle and allow the statement, should apply the remedy by the same. striking out, or causing to be stricken out, the 'redundant or useless matter. In San

We concur: BEATTY, C. J.; HARRISON, some v. Myers, 80 Cal. 486, 22 Pac. 213, it is J.; TEMPLE, J.; HENSHAW, J. said: “It was not the duty of the judge to prepare a statement, but it was his duty to

MCFARLAND, J. I dissent. In my opinsee that one was properly prepared, and then

ion, the respondent was not obliged to take to sign it. If the attorney for the petitioner

any action whatever upon the document handhad omitted anything material, the Judge

ed to him, and which is called a "proposed should have directed and required him to in

statement.” It was not such a document as sert it, or, if the matter was incorrectly stat

the law recognizes as the draft of a state

ment. ed, he should have required him to correct it.

The judge, in the exercise of his disIf the petitioner had refused or neg

cretion, might have allowed appellant to lected to so correct the proposed statement

amend by turning it into something presentaas directed, the judge, no doubt, would have

ble, or he might himself have taken up the been justified in refusing to settle the same;

task of preparing a statement, but he did not but not otherwise." In that case the judge

abuse his discretion by refusing to do either. refused to settle the statement in the first instance, and the court say: “This we think

(126 Cal. 653) he had no right to do. To so hold would

BOWERING et al. v. ADAMS et al. (L. A. place it in the power of the trial judge to de

754.) ? prive a litigant of his right of appeal by sim

(Supreme Court of California. Nov. 10, 1899.) ply refusing to perform a plain duty." In

APPEAL-DISMISSAL-FAILURE TO SERVE Leach v. Pearce, 93 Cal. 618, 29 Pac, 236, in

NOTICE. a mandamus proceeding, the same as the In an action to quiet certain water rights present, it was said: “Of course, the exer- the complaint demanded judgment that the adcise of respondent's discretion cannot be con

verse claims of all the defendants be determined,

and the plaintiffs adjudged the owners of all the trolled or reviewed in this proceeding. He

water except a certain surplus. The judgment cannot be compelled to settle any particular awarded to some of the defendants advantages bill, or to insert or exclude any particular over others, from which two of them appealed,

but no notice of appeal was served on certain facts; but if the petitioner is entitled to move

defendants against whom judgment wag renderfor a new trial, and has taken the propered by default. Held, that the omitted defendsteps within time, or if she has tendered a ants were adverse parties, and hence the appeal bill of exceptions to be used on appeal from

should be dismissed for failure to serve notice

on them. the order within the time allowed by law, respondent cannot refuse to settle and sign

In bank. Appeal from superior court, Los

Angeles county. a bill containing a record of the proceedings. It is an act which the law requires him to

Action by William Bowering and others perform,-a duty resulting from his office."

against Frank P. Adams and others. From See, also, Winters v. Buck, 121 Cal. 279, 53

a judgment for plaintiffs the defendants Ger. Pac. 799. In such case mandamus is the

rard and Fulton appeal. Dismissed. proper remedy. Code Civ. Proc. 88 1085, J. W. Swanwick, for appellants. Frank W. 1086. In Kruse v. Chester, 66 Cal. 353, 5 Pac. Burnett, for respondents. 613, the court say: “The statement in question having been presented in due time, the TEMPLE, J. This action was commenced law enjo'ded upon the referee the duty to by 38 plaintiffs against 100 defendants to

* Rehearing denied December 8, 1899.


quiet the right and title of plaintiffs to cer- stant flow of seventy inches under four-inch tain water to the extent of 70 inches, miners' pressure, miners' measurement," etc. The measure. Many of the defendants defaulted, effect of the decree has been partly stated. and, among them, the two appellants. In the The record, which does not contain the decree the court determined that 73 of the judgment roll, does not show that cross comparties to the action were the owners of all plaints were interposed by any of the defendthe water arising upon the land described, or ants, but, for aught we can know, such may which could be thereafter developed from the have been the case. The judgment awards same, in the order and to the several amounts to 35 defendants advantages over the other named in the decree. Of these parties 35 defendants, and adds to the 70 inches of wawere plaintiffs and 38 were defendants, and ter which may be taken before any surplus the amount of water adjudged to belong to can exist about as much more. The appelthem is in the aggregate more than 120 inch- lants, so far as the judgment discloses, are in

The judgment roll is not contained in the same position under the decree as the dethe transcript, and we cannot tell whether, fendants not served with the notice, but the as to the defendants, the pleadings authorized decree adjudges, in effect, that none of the a judgment in their favor. Plaintiffs, in their defendants, except those named in the decree complaint, only asked that the defendants as possessing prior rights, can appropriate to be enjoined from interfering with their claim their special use water from the described to 70 inches flowing from the described tract, tract, save as sharers in the surplus. By the but admitted the right of the defendants to terms of the decree no defendants can acquire the surplus. Appellants contend that the de- independent rights to the water, and dimincree is not sustained by the complaint in al- ish the surplus. Should they appropriate to lowing a prior right to more than 70 inches their individual use any of the water disposed of water, and in extending that priority to of by the decree, it would necessarily lessen water which may hereafter be developed upon the surplus to be divided among the defendthe described tract of land.

ants, and, of course, the share which would Motion is made by some of the respondents go to each defendant who was not served to dismiss the appeal on the ground that the with the notice of appeal. It must be borne notice of appeal was not served on all the in mind, also, that if the appellants succeed adverse parties, to wit, upon 14 defendants in causing the decree to be modified, it can named in the notice, who had been duly serv- be modified only as to appellants. The ap

ed with summons, and whose defaults had peal is taken from portions of the decree only, 'been entered, and against whom judgment -formally from five different portions. The

had been rendered. The appellants admit the first four are, however, aimed at the same facts stated, except that they deny that the adjudication, to wit, giving to the favored omitted parties are adverse parties, and that parties the right to the undeveloped water, to their interests will or can be injuriously af- the exclusion of the appellants. In the fifth fected by the appeal.

they appeal from those portions of the decree In the complaint it is alleged that in 1887 which affect the right of the appellants to the the San José Ranch Company acquired title developed waters in said tract of land. to certain lands, and each of plaintiffs pur- It is obvious that, if appellants are entirely chased from said company a specific portion successful in their appeal, they will be at libthereof, and also certain water rights, which erty to claim, and in fact to appropriate to are specifically described in the complaint, their special use, to the exclusion of all other and which have become and are appurtenant parties, the entire amount of water which is to the respective tracts of land owned by disposed of by the decree, and thus prevent plaintiffs in severalty. It was also averred the possibility of there being any surplus wathat, in addition to the water rights conveyed ter to be divided among the defendants who, to plaintiffs, the company undertook to con- by the decree, are not given prior rights, and vey to other parties a right to water from who were not served with the notice of apsources undefined, such other parties being peal. It is also obvious that, to whatever exthe defendants, who assert some right to the tent they so succeed in modifying the decree, water adverse to plaintiffs; "that the claims the effect will be to place them in a position of said defendants are without any right to claim some portion of the water already whatever except as to any surplus water developed, or to be hereafter developed, to there may be derived from said source over the prejudice of the defendants not served. and above the amount belonging to the plain- | Indeed, it is difficult to see how they can be tiffs, as above set forth." Among other benefited by any modification of the judgthings, they demand that "all adverse claims ment, except to the injury of such defendof said defendants, or either of them, may be ants. It is true, the decree does not settle determined by a decree of this court, and that the rights of the defendants not named in the by said decree it be declared and adjudged schedule attached to the decree, as between that said plaintiffs are the owners of the right themselves. Possibly the appellants may be to use all the water flowing from the source entitled to all the surplus water as against above described, except the surplus, if any, the defendants not served, but the complaint over and above an amount equal to a con- puts all upon the same level, and, although it

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is not an adjudication of their rights with ecution for the amount of her claim against reference to each other, it must be so regard- each of them, not to exceed the amount that ed on this motion. The appeal is dismissed. should be found due on their several subscrip

tions to the said stock of said corporation. We concur: MCFARLAND, J.; HARRI- The case was tried without a jury, and from SON, J.; VAN DYKE, J.

a judgment for plaintiff and an order denying a new trial the defendant stockholders above

named appeal. (126 Cal. 582)

It appears from the pleadings and evidence WALTER V. MERCED ACADEMY ASS'N that the Merced Academy Association was inet al. (Sac. 559.)

corporated in 1890, with a capital stock of (Supreme Court of California. Nov. 8, 1899.) $25,000, divided into 250 shares of the par CORPORATIONS-STOCKHOLDERS' LIABILITY

value of $100 each. Its purposes, as stated in ENFORCEMENT-PARTIES-LIMI

its articles of incorporation, were "to buy TATION-DECREE. 1. It is not necessary, for one to subscribe to

or acquire the Merced Academy property, a subscription agreement, to become the owner

situated in the city of Merced, of shares and the holder of original certificates

together with the academy building of the first issue of a corporation's stock.

and furniture and improvements connected 2. One who is the owner of stock of a corporation by receiving and paying for it cannot

therewith; and to own, use, improve, mortdefeat liability to creditors of the corporation gage, lease, sell, and deal with said propby showing a variance between the subscription erty, and to borrow money thereon, and to agreement and the articles of incorporation as

carry on a school or boarding house, or to to the purposes of the incorporation.

3. Stockholders, after holding stock for six | lease the same for said purpose or any other years, cannot, for the first time, to an action purpose." All the appellants were named in against them by creditors of the corporation, the articles as stockholders, and Applegate, urge a variance between the subscription agreement and the articles of incorporation, as re

Lyons, Simonson, Law, and Landrum were lieving them from liability.

mentioned as directors for the first year, and 4. The statute of limitations cannot be con- to the articles these five persons mentioned sidered, not being pleaded in the answer, and

subscribed their names, and duly acknowlthe complaint not showing on its face that the claim is barred.

edged the execution of the same. Some time 5. Actions by creditors of a corporation will prior to incorporation the appellants had lie against stockholders, remedy not being lim

signed a subscription agreement in which the ited to sale of the stock. 6. Stockholders having paid 33% per cent. of

objects of the proposed corporation were statthe par value of their stock cannot, in an ac- ed as follows: "To acquire the Merced tion against them by creditors of the corporation Academy property by purchase or otherwise, to enforce liability to the extent of their unpaid

and conduct thereon a school, or to use the subscriptions, be treated as holding their stock as a mere gratuity.

said property for such other purpose or pur7. Right of creditors of a corporation to recov- poses as the stockholders of said corporation er against stockholders to the extent of their un

may determine.” Soon after incorporation, paid subscriptions is not limited by other debts of the corporation.

certificates of stock were issued, and each of 8. Action may be maintained by creditors of the appellants, excepting those who signed a corporation against part of the stockholders the articles, received one of these certificates only to enforce their liability to extent of their unpaid subscriptions.

representing a stated number of shares, and 9. Making and signing by the judge of the de

signed a receipt therefor, which receipt, after cision and decree in a county other than that of describing the certificate delivered, contained the trial is immaterial, they not being in force

the following language: "Received the above till filed by the clerk in the county of the trial.

certificate subject to the articles of incorporaDepartment 2. Appeal from superior court, tion and by-laws of the company.” The apMerced county.

pellants retained these certificates in their Action by Doreth Walter against the Mer- possession from 1890, when they received ced Academy Association, a corporation, and them, down to the time of the trial of this others, stockholders therein. Judgment for action, in 1897, holding themselves in readiplaintiff. Defendant stockholders appeal. Af- ness, as it is admitted, to share in the divifirmed.

dends of the concern, should any accrue. ApJ. W. Knox and T. C. Law, for appellants. pellants seek to avoid liability as stockholdJames F. Peck, for respondent.

ers, and contend that they are not stockhold

ers in fact for the reason of variance in the PER CURIAM. Heretofore the plaintiff purposes of incorporation as set forth in the had recovered judgment against the defend- subscription agreement and as declared in the ant corporation in a foreclosure suit, and, articles of incorporation; and to sustain this after sale of the premises involved, a de- position they cite Marysville Electric Light ficiency judgment was duly docketed against & Power Co. v. Johnson, 109 Cal. 193, 41 Pac. said corporation for $5,587.25. Plaintiff pros- 1016, and many other cases. In none of these ecuted this action against the appellants to cases was the action against the defendant ascertain the amount due from each of them as an owner of shares or as an owner of on said deficiency judgment as owners and stock in the corporation, but most of them holders of the stock of the said defendant are similar to the Marysville Electric Light corporation, and to obtain judgment and ex- Case, supra, and are based solely on the original subscription agreement, the defendants Appellants are mistaken in supposing that refusing to accept or pay for the stock of the the stockholders are not liable for debts of corporation. In the case at bar, however, the the corporation until all the stock is subcomplaint sets out, and the evidence shows, scribed. When one-fourth of the capital stock that appellants were at all the times men- is subscribed, their liability begins. Civ. tioned in the complaint, and still are, the Code, $ 331. owners of shares in the corporation. To be- The contention that an action will not lie come the owners of shares and the holders against the stockholders personally, and that of original certificates of the first issue, it the remedy is by sale of the stock, is disposwas not necessary that appellants should ed of in Baines v. Babcock, 95 Cal. 582, 27 have subscribed to any subscription agree- Pac. 674, and 30 Pac. 776. ment at all. "It would be a mockery of jus- The amount of plaintiff's recovery is extice to permit such an objection to prevail." pressly limited by the judgment to the amount Sanger v. Upton, 91 U. S. 56, 23 L. Ed. 220. found to be due from the stockholders. “Merely accepting and holding a certificate

As we have already seen, the record shows of stock is sufficient to constitute one a share- that appellants had paid 3343 per cent. of the holder." Cook, Stock, Stockh. & Corp. Law, par value of their stock. They cannot, there$ 52; Upton v. Tribilcock, 91 U. S. 45, 23 L.

fore, be treated as holding their stock as a Ed. 203. It becomes unnecessary to deter

mere gratuity. mine whether there was a material variance

Plaintiff's right to recover does not depend between the subscription agreement and the

upon, nor is it limited in any way by, the articles as to the purposes of the corporation,

other debts of the corporation, and an acbecause we may admit that there was such

counting was entirely unnecessary. Neither variance, and that appellants never signed

was it necessary that all the stockholders any subscription paper for stock in the cor

should be made parties defendant. Hatch v. poration which was in fact incorporated; and

Dana, 101 U. S. 205, 25 L. Ed. 885; Baines v. yet they are owners of such stock by virtue

Babcock, supra. of receiving and paying for the same. An

The testimony of Simonson shows that the other answer to appellants' objections is that

directors had no meeting, and that no assessit would have been perfectly proper for ap

ment was levied to pay plaintiff's claim. This pellants to have informed themselves as to

action is not barred by the provisions of sec. the contents of the articles of incorporation

tion 726, Code Civ. Proc. Baines v. Babcock, when they received their stock, and they will

supra; Blumberg v. Birch, 99 Cal. 416, 34 certainly not be heard after six years to urge

Pac. 102. for the first time an objection of the charac

The findings cover the material issues. The ter made here in a suit by one who, no doubt,

decision, therefore, is not against law. There credited the corporation on the faith of the appellants being, as the books showed them

was no irregularity in the trial judge making

and signing the decision and decree in Stanto be, stockholders of the corporation. Thomp. Liab. Stockh. $$ 150, 151, 125. It seems to

islaus county. Until the decision and decree be admitted, or at least not denied, that the

were filed by the clerk in Merced county, they five appellants who subscribed the articles of

not in force. Comstock Quicksilver incorporation are to be treated as stockhold

Min. Co. v. Superior Court of Santa Cruz Co.,

57 Cal. 625. ers in the amounts set out in such articles. No statute of limitations being pleaded in the

There was no material error in the rulings answer, and the complaint not showing on its

of the court on objections to the introduction face that the claim of plaintiff is barred by of evidence. The judgment and order are any statute, it is therefore not necessary to

affirmed. further notice any objection based on the statute of limitations.

(126 Cal. 636) On the evidence presented, the court properly found that $3343 per share, and no more,

GREENAWALT v. MUELLER. (L. A. 578.) had been paid, and that $66% per share had (Supreme Court of California. Nov. 10, 1899.) not been paid, and was due and unpaid. It

FRAUDULENT CONVEYANCE-TRANSFER TO was also alleged in the complaint, and not

WIFE-CONSIDERATION, denied in the answer, that "upon the shares

Civ. Code, $ 3442, provides that a transfer owned by each of said defendants the sum of of property voluntarily by a party while insolthirty-three and one-third dollars per share,

vent or in contemplation of insolvency shall be

fraudulent as to existing creditors. and no more," had been paid. Hence appel

A wife

bought with her own means a lot, and, as a part lants' contention that their stock was fully of the consideration, assumed an incumbrance paid for is not supported by the record.

thereon. Before the conveyance was executed, Many of the minor points made by appel

her husband agreed that, if the deed made him

a co-grantee with his wife, he would pay the inlants are disposed of by the position we as

cumbrance. The deed was so made, but he fail. sume in holding the liability of appellants to ed to pay the incumbrance, and the wife paid it. arise out of the fact of their being stockhold

Four days before he filed a petition in insolvency ers and owners as shown by the record on

he executed a deed of the premises to his wife

Held that, when the wife paid the incumbrance, appeal, and it will be unnecessary to notice it created an implied obligation on her husband's such polats in detail.

part to pay her the amount thereof, and his deed


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