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court says:

“This certainly cannot mean divorce. The defendant answered, asking that the plaintiff shall make an entry of dis- for alimony, which the court allowed, and missal in the clerk's register. All entries also allowed counsel fees. Thereafter said in that are made by the clerk, and none are order was set aside, and the motion for aliever made in it by either of the parties. The mony set for hearing on a day certain. Bemeaning of that clause doubtless is that, fore that day arrived, the plaintiff filed a when a plaintiff dismisses an action, the dismissal with the clerk, and an entry thereclerk shall enter such dismissal in his reg. of was made in the register of actions, but ister.

We think that the dismissal no judgment of dismissal was entered in the by the plaintiff became operative as soon as judgment book. We think in that case the filed and entered as aforesaid. If a judgment court arrived at a right conclusion, but gave should have been entered by the clerk, it is a wrong reason therefor. The defendant apone of those cases in which the law presumes peared, answered, and asked for alimony,that to have been done which should have asked for affirmative relief; and for that reabeen done." That case was decided in 1880, son the plaintiff could not dismiss said acand we think the rule laid down in the above tion. In Acock v. Halsey, 90 Cal. 215, 27 quotation is the correct one, as applied to a Pac, 193, it was held that the dismissal of the dismissal made by the plaintiff under the action by plaintiff did not take effect until provisions of said section. In the case at the judgment of dismissal was entered in the bar the plaintiff paid all costs, and filed his judgment book, and the court cites Page v. dismissal of the suit; and, if the clerk neg. Superior Court, supra. Acock v. Halsey was glected to make an entry in the said matter a replevin guit. The plaintiff gave an underas required by law, it is one of the cases in taking for the delivery of the property in which the law presumes that to have been question to him. The property was taken done which should have been done. Section from the defendants and delivered to the 4354, Rev. St., is identical with section 354 plaintiff. The defendants thereupon gave a of the practice act adopted by the territorial redelivery bond, and before the property was legislature of 1881 (Sess. Laws 1881, p. 74), returned to them the plaintiff undertook to which act went into effect May 21, 1881. If that dismiss his suit. The decision of that case part of the section of the California practice was right, but we think the reasons given act above quoted is correctly quoted in the case for it were wrong. The process of the court last cited, it has since been amended; for we had been used to take property from the posfind in 3 Deering's Code Civ. Proc. Cal. $ 581, session of the defendants without giving that said section was amended in 1885 in this, them their day in court. In replevin suits, as well as other matters, to wit: The period when property has been taken from deafter the word "register” and between the fendants and delivered to plaintiff, and in word “judgment" was changed to a semi- divorce suits, when alimony or other relief colon, and the word "judgment” begun with has been asked for by defendants, voluntary a small letter, thus changing two independ- dismissals by plaintiffs ought not to be alent sentences to a compound one. The su- lowed, and are not permitted by the provi· preme court of California evidently conclud- sions of said section 4354, Rev. St. Rochat ed that said amendment made some change v. Gee, 91 Cal. 355, 27 Pac. 670, was a coin the meaning of said sentences; for in partnership settlement. The plaintiff asked Page v. Superior Court, 76 Cal. 372, 18 Pac. for a receiver, an accounting, and dissolu385, it is held than an action which is di- tion. A receiver was appointed. He qualirected to be dismissed by the plaintiff under fied, and took possession of the partnership the provisions of section 581, Code Civ. Proc., property, and operated a lumber mill beis not dismissed until the judgment of dis- longing to the firm. The defendant answermissal has been entered in the judgment ed, admitting the partnership, but denying book, and an entry of dismissal made in the the allegations on which plaintiff relied for register of actions; that a mere entry of relief. Thereafter plaintiff filed a dismissal dismissal in the register of actions is not or abandonment of the action, which abansufficient. The court says, "The direction to donment was entered in the register of acenter a judgment in the judgment book is tions. On tbose facts the court says, "But mandatory, because it imposes a public duty no judgment of dismissal was ever made or upon a ministerial officer;

and, entered, nor was any order of the court made "But until the judgment is entered the action in relation to the matter of abandonment," is not dismissed.

The court in and holds that the case was not dismissed, that case does not refer to McLeran v. Mc- and cites as an authority Page v. Page, 77 Namara, supra, wherein it held that the dis- Cal. 83, 19 Pac. 183. It would seem to us missal became operative as soon as filed and that, if a judgment of dismissal had been entered in the register of actions, and that, entered under the facts of that case, the “if a judgment should have been entered by court ought not to have permitted it to stand. the clerk, it is one of those cases in which It would have been a fraud upon the rights the law will presume that to have been done of the defendant, and we apprehend that the which should have been done." The case of provisions of section 581, Code Civ. Proc. Page v. Page, out of which arose the case Cal., were not enacted to enable the plaintiff of Page v. Sup?rior Court, supra, was for a to perpetrate a fraud upon the defendant.

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Barnes v. Barnes, 95 Cal. 171, 30 Pac. 298, miss his action. . Neither the clerk nor the 16 L. R. A, 660, is a divorce case, in which court can prevent him from so doing, prodefendant did not appear before plaintiff had vided he brings himself within the provisions filed his dismissal. The clerk failed to enter of said statute. Said section does not, in judgment, and the court held that the paper terms, require a written dismissal to be filed. filed by the plaintiff amounted to an order It requires payment of all costs, and an enfor dismissal, an that until judgment was try of dismissal in the register of actions, entered the court retained jurisdiction, and both of which were done in this case. At that defendant might answer. With one fur- section 106 of Black on Judgments it is said: ther reference to California authorities upon “The rendition of a judgment is the judicial this subject, we will close. In the case of act of the court,

The entry of a Kaufman v. Superior Court (Cal.) 46 Pac. judgment is the ministerial act of spreading 904, the court says: "If plaintiff was at that on the record a statement of the final contime entitled to dismiss his action, the failure clusions.

The omission to enter of the clerk to perform his ministerial duties does not destroy, nor does its vitality reby entering the dismissal, to be entered in main in abeyance until it is put upon the rechis judgment book, should not and cannot ord.

There are certain purposes, be allowed to affect the substantial rights of however, for which a judgmen is required the parties. In other words, if plaintiff at to be duly entered before it can be available, that time had the right to dismiss his action, or be attended by its usual incidents. Thus, and had taken all the proper steps to that as above remarked, this is a prerequisite to end, that right could not be impaired or lost the right to appeal." The author is there disby the refusal of the clerk to perform a plain cussing judgments rendered by a court. In duty, or by the subsequent filing of a cross the case at bar the plaintiff had the right to complaint by one of the defendants, or by dismiss his action without permission of the both of these circumstances."

court, and without its judgment. Had he It is thus shown that the California de- wished a judgment by way of nonsuit, he cisions are not uniform, and some of them must have applied to the court for it. Said are most unsatisfactory to us. We, however, section 4354 provides for dismissals by the think that the rule as announced in Mc- plaintiff himself, and judgments of nonsuit, Leran V. McNamara and Kaufman v Su- which judgments of nonsuit are rendered by perior Court, supra, is the correct one, and the court. We think the last sentence of said that in a proper case, where plaintiff pays section, to wit, “Judgment may thereupon all costs and orders a dismissal, the dismissal be entered accordingly," applies to judgments cannot be defeated by the refusal or neglect of nonsuit, and not to dismissals by plainof the clerk to enter a dismissal in the regis- tiffs. ter of actions, or to enter judgment of dis- Other points are found in the record, but missal. There is no question but that the as the plaintiff dismissed his said action, and plaintiff, by his attorney, intended to, and the court below thereby lost jurisdiction, it did, dismiss said action. He paid the costs, is not necessary for us to pass upon them. and the clerk made an entry in the register A peremptory writ of prohibition ought to of actions to the effect that at the request of issue, and it is so ordered. the plaintiff said action was dismissed, and that he paid all costs. The attorney for HUSTON, C. J., and QUARLES, J., conplaintiff did not make that entry, nor would

cur. it have been proper for him to do so, as it is the duty of the clerk to keep the register of

(126 Cal. 536) actions, and to make all entries therein. A written form of judgment of dismissal, re

SUSSMAN v. COUNTY OF SAN LUIS OBISciting that the answers of defendants did not

PO et al. (L. A. 533.)? contain a counterclaim or seek affirmative re- (Supreme Court of California. Nov. 6, 1899.) lief, and that on the motion of R. L. Edmis- QUIETING TITLE-DEED-ADMISSIBILITY-DED

ICATION BY CORPORATION-NECESSITY OF ton, one of the attorneys, said action was


SHOWING DEDICATION-PREJUDICIAL FINDEdmiston, and that in connection with the

ING. entry of such dismissal in the proper place

1. In an action against a county to quiet plainin the register of actions, was a substantial tiff's title to a certain road and bridge thereon, compliance with the provisions of said stat- a deed conveying to said county a strip of land ute applicable to this case. The clerk could

leading up to plaintiff's line at a point in said

bridge, so that the end of the bridge rests on not defeat the plaintiff from dismissing said the right of way so conveyed to the county, is action by neglecting to enter a formal judg- not inadmissible on the ground that the grantor ment of dismissal, if such a judgment is re

in said deed had agreed to see that plaintiff's

predecessor got a deed for that part of the road, quired by the provisions of said section to

where there is no showing that such grantor be entered. It is not the clerk who dismisses ever carried out his agreement with plaintiff's the action like the one at bar. He can nei- predecessor, or that he was bound to carry it out, ther dismiss, nor prevent a dismissal. The or that there was any legal impediment in the

way of his conveying to the county. provisions of said section under considera

2. As a dedication is a conclusion of fact to tion absolutely authorize the plaintiff to dis- be drawn from the circumstances of each case,

1 Rehearing denied December 6, 1899.

a corporation as well as an individual may be San Luis Obispo county at the request of bound by its acts so as to be estopped from dis

Briggs, Ferguson & Co., the agents of said puting or denying the fact of dedication, and no formal act of dedication passed by its proper of

Eureka Improvement Company, on the 4th ficers is necessary.

day of November, 1889. The Eureka Improve3. Where a corporation told purchasers of its ment Company and Briggs, Ferguson & Co., lots in a certain town and others that it would construct a bridge and open a public highway,

its agents, in September, 1888, brought a and then subsequently constructed the bridge

great number of people to the town of Vasa and opened the road, the court is justified in find- by excursions for the purpose of selling lands ing that there was a dedication of such bridge

and town lots. Lands were then sold to buyand road. 4. Where, in an action against a county to

ers by the Eureka Improvement Company, quiet plaintiff's title to a certain road and bridge and representations were made publicly to thereon, there is a correct finding that there was said buyers and to prospective purchasers a dedication of said road and bridge, a further finding in favor of defendant on the plea of the

that the proposed bridge and road across the statute of limitations is not prejudicial to plain

Salinas river connecting the Eureka Improvetiff, as it may be rejected as surplusage, and ment Company's lands with the road across still the judgment is supported by the finding of

the river would be of a public character, and dedication.

for the benefit of the public. Among the parDepartment 1. Appeal from superior court, ties that made such representations were sevSan Luis Obispo county.

eral directors and officers of said company, Action by Samuel Sussman against the

and in November, 1889, another excursion county of San Luis Obispò and others to quiet was run by said companies for the purpose of title to a certain road and bridge resting bringing buyers of property to the town of thereon. From a judgment in favor of de- Vasa and the Rancho Eureka, at which time fendants, and an order denying a motion for an auction sale of lots was had, there being new trial, plaintiff appeals. Affirmed.

present of the Eureka Company the president, G. W. Kemp and Graves & Graves, for ap- secretary, and treasurer, and the president of pellant. F. A. Dorn, for respondents.

Briggs, Ferguson & Co. At this time repre

sentations were made by said officers to the VAN DYKE, J. Plaintiff brings this ac- people gathered at said auction that said tion against the defendants to quiet his title bridge and road were built for the benefit of to a certain wagon road and bridge resting the public. It is true that some of the offithereon. Defendants county of San Luis cers of said company on the trial denied that Obispo and board of supervisors of said coun- any statements of the kind were made, but, ty in their answer deny the material allega- there having been a conflict in the evidence tions in the complaint, and set up as a de- upon this point, it is to be presumed that credfense the dedication by the plaintiff and his it was given to the statements of the witnesspredecessors in interest of said road and es on behalf of defendant by the trial court, bridge to the public as a public road, thorough- and under the well-established rule the findfare, and highway, and also plead the statute ings will not be disturbed. There is further of limitations. The supervisors, as individ- | evidence going to show the intention and offer uals, disclaim any interest in said property. to dedicate on the part of the Eureka ImUpon the issues thus raised the court found provement Company by said company placing in favor of the defendant upon the question signs at each end of the road stating that said of dedication and the plea of the statute of road was open to the Eureka rancho and town limitations, and ordered judgment according- of Vasa. The testimony quite clearly shows ly. This appeal is from the judgment and that the bridge and road in question were order denying plaintiff's motion for a new thrown open to public travel and used as a trial.

public highway by the public with the knowlThe Eureka Improvement Company, prede- edge and acquiescence of the plaintiff's predcessor of plaintiff, then the owner of the Eu- ecessors in interest, and continued to be so reka rancho, in December, 1888, had said used for more than five years without objecrancho surveyed, and a map thereof made tion on the part of the owner. In September, and filed. A portion of said rancho, as sur- 1894, James T. Murphy conveyed by deed to veyed, was laid out into lots and blocks, and the county of San Luis Obispo a strip of land called the "Town of Vasa.” This map, so on the west side of the river for a public highfiled by said company, is called the "original way, said strip leading up to the plaintiff's map," and was introduced in evidence by line at a point in the bridge. The west end plaintiff. Said map, or the portion thereof of the bridge rests on this land or right of showing the town of Vasa, was lithographed way so conveyed by Murphy to the defendon a large scale, with the streets of said town, ant county. The plaintiff objected to the adincluding the road and bridge in controversy, mission of this deed in evidence, on the delineated thereon as an open thoroughfare ground, as claimed, that Murphy had agreed connecting the Templeton and Vasa road on to see that the Eureka Improvement Comthe easterly side of the Salinas river with the pany got a deed for that part of the road, but Templeton and Santa Margarita road on the there is no showing that Murphy ever carried westerly side of said river, and leading to and out his agreement with said company, or that past the railroad depot. This map was re- he was bound to carry it out, or that there corded in the office of the county recorder of was any legal impediment in the way of his conveying to the county. The court there- ifested. People v. County of Marin, 103 Cal fora did not err in admitting the deed.

223, 37 Pac. 203; Elliott, Roads & S. 92; On the petition of parties along the line Abbott v. Water Co., 87 Cal. 328, 25 Pac. 693; of road in question, the supervisors formally Helm v. McClure, 107 Cal. 199, 40 Pac. 437. accepted the road as a public highway and We think the evidence on the question of thoroughfare in 1895. The contention on the dedication is sufficient to justify the finding of part of the appellant that the Eureka Im- the trial court. The appellant contends, howprovement Company could only be bound by ever, that there are inconsistent findings, in a formal act of dedication passed by its board this: That the court finds dedication, and of directors and entered on its minutes is un- also finds in favor of the defendant on the tenable. Dedication is a conclusion of fact plea of the statute of limitations, whereas to be drawn from the circumstances of each dedication rests upon intention and consent case, and a corporation, as well as an indi- of the owner, and the answer pleading the vidual, may be bound by its acts so as to es- statute of limitations alleges that the road top it from disputing or denying the fact of has been used and occupied for over five dedication. In Smith v. City of San Luis years by the public adversely to the plaintiff Obispo, 55 Cal. 470, 30 Pac. 593, it is said: and to all others. Prescription or adverse “We think the use of the street by the pub- possession, however, was based in theory lic for a reasonable length of time, where the upon an assumed grant beyond legal memintention of the owner to dedicate is clearly ory, and which had been lost, and this law of shown, is sufficient, without any specific ac- limitation was to furnish the defendant with tion of the municipal authorities either by a defense in lieu of said original grant, which resolution or by repair or improvements. A it was supposed he could not produce. Howcommon-law dedication operates against the ever, this finding, if the other be correct, candedicator by estoppel, and this estoppel may not prejudice the plaintiff, and, if rejected be invoked by or on behalf of the public at as unnecessary or surplusage, still the judglarge." In People v. Railroad Co., 98 Cal. ment in favor of the defendant would be 670, 33 Pac. 729, the court say: "Upon the is- supported by the finding of dedication. We sue whether the road that it constructed was see no errors in the transcript which would intended to be a private or public road evi- justify a reversal. Judgment and order dedence that at the time it purchased the land nying a new trial affirmed. declarations were made on its behalf that it intended to construct a public highway would I concur: HARRISON, J. be relevant and pertinent. If such an agreement had been made, there would be an in- BEATTY, C. J. I concur in the judgment. ference that its subsequent act in construct- In my opinion, there is no inconsistency being the road was in pursuance thereof, and tween the findings of dedication and of a prewould corroborate the testimony of those who scriptive right in the public, and I think the declared that at the time of its construction evidence fully sustains the latter finding. it was intended for a public highway." In this case it was shown that the Eureka Com

(126 Cal. 546) pany, by itself and agents, held out to the purchasers of lots in the town of Vasa and CONDEE v. GYGER et al. (L. A. 471.) others that it would construct a bridge and (Supreme Court of California. Nov. 6, 1899.) open a public highway across the same, lead- NEW TRIAL-GROUND--APPEAL CONFLICTING

EVIDENCE-DUTY OF TRIAL COURT. ing to said town. The bridge was subse

1. Where an order granting a new trial is siquently constructed, and the road opened.

lent as to the ground on which it was made, and These facts, in connection with said decla- the record shows the existence of a valid ground, rations, would justify the court in finding the supreme court will, on appeal, presume that that the dedication was made. Common-law

the order was made on that ground.

2. Where, after making a finding of facts in dedications are, for convenience of descrip- favor of plaintiff on conflicting evidence, the tion, frequently divided by law writers into court made an order for a new trial, it will be two classes, express dedications and implied presumed that the judge changed his mind as to

the effect of the evidence, and the order grantdedications. The substantial difference be

ing a new trial will be affirmed. tween the two consists in the mode of proof. In the former case the intention to appro

Department 2. Appeal from superior court,

Riverside county. priate the land to public use is manifested by some outward act of the owner, while in

Action by A. J. Condee, as assignee, against the latter it is shown by such acts and con

C. E. Gyger and others. There was a finding

in favor of plaintiff, and defendants moved duct, not directly manifesting the intention, but from which the law will imply the in

for a new trial. From an order granting the tent. If the donor's acts are such as indicate

motion, plaintiff appealed. Affirmed. an intention to appropriate the land to public Caldwell & Duncan, for appellant. John T. use, then, upon acceptance by the public, the Crowe and John G. North, for respondents. dedication becomes complete. The authorities show that dedications have been estab- PER CURIAM. This is an appeal by plainlished in every conceivable way in which the tiff from an order granting defendants' motion intention of the parties could have been man- for a new trial. The motion was upon the grounds of newly discovered evidence and the note or the bonds to the bank, and alleged other statutory grounds. At the hearing the that they received no part of the borrowed court made the following minute order: money; that Nance obtained the money him"The motion heretofore made for a new trial self for the benefit of the said irrigation disof this cause is this day granted by the court.” trict, of which he was president and general

Appellant contends that as the court as- manager, and that the bonds were part of a signs no reason for its order, and as the court lot of bonds which he had purchased from must have given careful consideration to all the district or had agreed to purchase, and the facts at the trial, the motion presumably were his when pledged and when sold by was granted alone on the affidavits showing him; also that when Nance paid the note newly-discovered evidence. No such pre- and received back the bonds the note was sumption can be indulged. It must rather be canceled and marked "Paid” by the bank, presumed that the court reconsidered and and the transaction was at an end, and the passed upon the sufficiency of all the evidence note became functus officio. Defendants also in the case in granting the motion, for it was pleaded the statute of limitations. The comits duty to do so; and in this appeal, the plaint was filed February 24, 1896, nearly court having granted a new trial, “the pre- four years after Nance paid the note, and sumption is against the findings, and not in nearly three years after he sold the bonds. their favor.” Hass v. Association, 118 Cal. The evidence is conflicting upon the prin6, 49 Pac. 1056. Where the order grantingcipal question of fact,-whether the note was the new trial is silent as to the ground on in fact made at the instance of Nance, and which it was made, and the record shows the to raise money for the irrigation district, and existence of a valid ground, this court will that he agreed himself to pay the note, and presume that the order was made upon that hold defendants barmless by reason of their ground. Curtiss v. Starr, 85 Cal. 376, 24 Pac. having signed it. There is evidence tending 806. It is the duty of the judge of the trial to show this to be the fact, and, had the court court to grant the new trial whenever he is found for defendants, we think the evidence not satisfied with the verdict, if tried by a would have justified such finding. In supjury, or with the findings, if tried by the port of the order, we must presume that the court (Id.); and he is not bound by the rule court changed its opinion as to the effect of as to conflicting evidence, as is this court the evidence, and reached a conclusion, upon (Id., and cases cited; Bjorman v. Redwood the hearing of the motion, favorable to deCo., 92 Cal. 500, 28 Pac. 591).

fendants' contention. Upon this assumption The action is by the assignee in insolvency

the court was justified in granting the moof one J. W. Nance, upon a promissory note

tion; indeed, it was its plain duty to do so. which the court found was executed by de

In this view of the matter, it becomes unnecfendant for the sum of $5,000 to Los Angeles essary to enter upon a discussion of the many National Bank, on which Nance made the interesting questions presented by counsel. following indorsement: “I guaranty the pay

They may not arise at the second trial, and ment of this note at maturity, and waive de- some of them cannot arise should the demand, presentment for payment, protest, and fendants prevail. The order is affirmed, and notice of protest." The note became due

the cause remanded. February 25, 1892, and the court found that on April 11, 1892, Nance paid the bank $5,

(126 Cal. 576) 150.27, the balance then due, principal and MCGUIRE et al. v. LYNCH. (Sac. 524.) interest, and the bank surrendered the note

(Supreme Court of California. Nov. 6, 1899.) to Nance, who was its owner when he be

COURTS-DEEDS-EFFECT-MORTGAGES POScame insolvent; that defendants deposited SESSION MORTGAGEE-EJECTMENT-ADwith the bank, at the execution of the note,


-SETTLEMENT - WIDOW'S AND CHILDREN'S certain 11 bonds of the Perris Irrigation Dis- RIGHTS. triet, of the par value of $500 each, as collat- 1. A court may determine whether a deed is a eral security, which were delivered to Nance

mortgage, so far as such determination is mate

rial to the issues, though the grantor be not a with the note, and that on March 30, 1893,

party. he sold the bonds for the highest market 2. Where a mortgagee goes into possession unvalue, to wit, for $4,125; that except $165

der a permission to pay his debt from the rents, paid to the bank on account of interest, by

the possession is not adverse, and limitations do

not run. the irrigation district, no payments were made 3. Code Civ. Proc. $ 1469, required the court on said note by defendants, and that there to assign, for the "use of the widow aud minor was due at the date of the judgment from de

children," the whole of a decedent's estate, if it

was less than $1,500. Section 1468, in the same fendants the sum of $1.899.37 upon said note,

chapter, provides that, when property is set and the further sum of $189.93 as attorney's apart to the use of the family under provisions fees provided for therein. Judgment was ac- of the chapter, one-half shall belong to the surcordingly entered for plaintiff. The defense

viving spouse, and the remainder in equal shares

to the children. Held that, where property is to the action was that the note was signed assigned under section 1469, the children take: by defendants at the instance of Nance, and an undivided one-half. upon an express agreement that they were to

4. Where, in ejectment, defendant is found to

be a mere trespasser, plaintiffs are entitled to be held harmless from the obligation thereof.

possession of the entire property, though they They denied that they either delivered the own only an undivided one-half.


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