The We concur: BURNETT, J.; HART, J. Clerk. (Civ. 698.) (Court of Appeal, Second District, California. Sept. 10, 1909. Rehearing Denied by Supreme Court Nov. 4, 1909.) 1. MUNICIPAL CORPORATIONS (§ 266*)-STREET IMPROVEMENTS-STATUTES-REPEAL. ing the jury that a nonsuit had been granted and may be reviewed on an appeal from an as to the second cause of action alleging order denying a motion for a new trial. carelessness in operating the cars and di- The order appealed from is affirmed. recting the jury that the sole point they were to consider was "whether defendant has or has not maintained a good and sufficient fence along its right of way." court gave in lieu thereof the following in- CITY OF LOS ANGELES v. LELANDE, City struction: "You are not to consider any testimony as to carelessness or negligence except as relates to the gate and its condition." It is contended that the defendant was deprived of a substantial right to its prejudice because the jury were not specifically told that a nonsuit had been granted as to the second cause of action. So far as appears, the motion was made and the ruling of the court announced in the presence and hearing of the jury. The court elsewhere told the jury, at the request of defendant, that "the complaint of plaintiff contains but one cause of action," and explained that the action was brought to recover damages "caused by the failure of defendant to maintain a good and sufficient fence along its right of way across the Quinn Ranch." We cannot see that the jury was left in any doubt of the real issue, or that the instruction complained of "only served to befuddle the jury." A question was asked of plaintiff's witness whether the track foreman made any statement about the gate. The witness answered that he made no statement. Obviously defendant was not injured by the answer. The points that a nonsuit should have been granted to both causes of action and that the general demurrer to the complaint should have been sustained rest mainly upon considerations already disposed of. It was not necessary to allege that defendant is the owner of the railroad. The averments of the complaint were sufficient to charge the defendant with liability. Sidewalk Act March 6, 1909 (St. 1909, p. 179, c. 115) § 20, expressly declares that it is to be deemed a repeal of the Vrooman act (approved March 18, 1885 [St. 1885, p. 147, c. 153]), and the several acts amendatory thereof and supplemental thereto, so far as the same relate to sidewalks and the construction thereof, and to assessments to be made and the ensuch sidewalks; but, as to all other street imforcement of payments for the construction of provements, it is declared that the Vrooman act shall not be deemed repealed or affected by the act, which contains a new scheme for constructing sidewalks and assessing the entire cost thereof on the frontage on the side of the street on which the sidewalk is laid. Section 6 (page 171) declares the construction of sidewalks to be of fronting on it, and not to any other property, peculiar and special benefit to the property and, the expense of the portion of the work at a street intersection is required to be paid out of the city treasury. Section 19 provides that the act may, at the election of the council, be used in the construction of curbing also. Held that, such sidewalk act repeals the Vrooman act as to the construction of sidewalks, and does not merely provide an alternative method for constructing the same. [Ed. Note.-For other cases, see Municipal Corporations, Cent. Dig. § 712; Dec. Dig. § 266.*] the sidewalk act, the re-enactment of section 2 The Vrooman act having been repealed by of the Vrooman act (St. 1885, p. 147, c. 153) on April 21, 1909 (St. 1909, p. 1017, c. 676), with the word "sidewalks" therein did not render the act again operative as to sidewalks, the subject of sidewalks not being in any way germane to the purpose of the amendment, which purpose was to strike from the section the clause elsewhere provided for, and the restating of the relating to change of grade, which had been entire section, including such word, being merely in compliance with Const. art. 4, § 24, requir ing the amended section to be re-enacted and published at length as amended, and the failure to eliminate the word "sidewalks" might be attributed to inadvertence on the part of the judiciary committee to which the amendment was referred. Respondent makes the point that the order denying the motion for a nonsuit cannot be reviewed where there is no appeal from the judgment; citing Merced Bank v. Ivett (Cal. App.) 98 Pac. 383. The syllabus of the case so states. The opinion stated that the order denying the motion for a nonsuit "was made upon the sole ground of the insufficiency of the complaint. But the sufficiency of the complaint cannot be inquired into. Cases, supra. For like reasons we [Ed. Note. For other cases, see Statutes, cannot consider the demurrer, as that goes Cent. Dig. §§ 245, 249; Dec. Dig. § 170.*] to the sufficiency of the complaint." The syllabus is not borne out by the text, which latter, it must be confessed, is not quite clear as to what was intended to be held. In Green v. Duvergey, 146 Cal. 379, 80 Pac. 234, the court said: "The action of the court in improperly granting or refusing a nonsuit is also an error of law, whether made upon the opening statement of counsel or after the close of the evidence in the case," For other cases see same topic and section NUMBER in Dec. & Am. Digs. 1907 to date, & Reporter Indexes 3. STATUTES (§ 159*) - REPEAL BY IMPLICA TION. The rule that the repugnancy between two statutes should be very clear to warrant a holdit does not in terms purport to do so, has pecuing that the later in time repeals the other, when liar force in cases of laws of special application, which are never deemed repealed by gencal manifestation of intent to that effect. eral legislation, except upon the most unequivo [Ed. Note.-For other cases, see Statutes, Cent. Dig. §§ 229, 231; Dec. Dig. § 159.*] 4. STATUTES ( 158*)-REPEAL BY INADVERT- | amendatory thereof and supplemental thereto ENCE. The theory of repeal by inadvertence is not [Ed. Note,-For other cases, see Statutes, 5. STATUTES (§ 230*)-CONSTRUCTION-AMEND- An unconstitutional amendatory act cannot [Ed. Note. For other cases, see Statutes, Petition by the City of Los Angeles for Leslie R. Hewitt, City Atty., and Edward PER CURIAM. Petition for writ of man- The sidewalk act (section 20) expressly de- thereof, and to the assessments to be made The view expressed by one of the members ence is not to be considered if, by the application of any rule of construction, another result may be arrived at. We think the intent with which the act of April 21st was passed is too apparent to require such a construction. The rule declared by section 325 of the Political Code that, where a section or part of one is re-enacted for the purpose of amending it, the unamended part is deemed not to have been changed, but to retain the status it occupied prior to the amendment, also makes for the same interpretation. that repeals by implication are not favored, | Certainly the theory of repeal by inadvertinvoked by the petitioner with respect to the sidewalk act, makes the more strongly against its position here, in that it relies upon the repeal of a special act by the amendment of a general one. As said by Judge Cooley: "The repugnancy between two statutes should be very clear to warrant a court holding that the later in time repeals the other when it does not in terms purport to do so. This rule has peculiar force in case of laws of special application, which are never to be deemed repealed by general legislation, except upon the most unequivocal manifestation of intent to that effect." Const. Lims. (7th Ed.) 216. Clearly in this connection it is proper to consider the Vrooman act as a general law relating to street work, and the sidewalk act as a special act providing a special method of construction for only such particular street work as is connected with sidewalks. This principle was applied by the Supreme Court in People v. Pacific Imp. Co., 130 Cal. 442, 62 Pac. 739. While the facts of that case were such that it may be said the rule adopted supported the position here taken only so far as the question of the repeal of the sidewalk act is to be considered, yet the reasoning upon which the decision was based also sustains our view that the amendment of section 2 by the act of April 21st did not operate to restore sidewalk construction to the improvements authorized to be made under the Vrooman act. Here, as in the case cited, it is apparent that in so far as the amendment to the general law is concerned, the fact that it in any manner mentions the subject-matter of the special act is due to a matter of copying. In the case at bar this may be attributed either to inadvertence or to an over We do not lay much stress upon the act of March 18th adding a new section to the Vrooman act. It appears to be conceded that the act is unconstitutional; and, that being so, it cannot be considered as affecting the law as it stood prior to its enactment (Ex parte Sohncke, 148 Cal. 262, 82 Pac. 956, 2 L. R. A. [N. S.] 813, 113 Am. St. Rep. 236; 1 Sutherland, Stat. Cons. [2d Ed.] p. 458), but petitioner contends, nevertheless, that it indicates that at the time of its passage and adoption the Legislature still thought the Vrooman act included the construction of sidewalks in its provisions. Treated as evidence of this, it is not entitled to much weight. If constitutional, its enactment would not be entirely idle, as it may be applied to the matter of curbing, which it includes, as well as sidewalks. We are of opinion that respondent was justified in refusing to certify the ordinance, and therefore, the writ is denied. (54 Or. 594) WILLETT v. KINNEY et al. (Supreme Court of Oregon. Nov. 9, 1909.) 1. LOGS AND LOGGING (§ 31*)-LIENS-CONVERSION OF LOGS-ACTIONS-PLEADING. Under B. & C. Comp. § 87, providing that in pleading a judgment facts conferring jurisdiction need not be stated, a complaint based on section 5692, making a person rendering impossible of identification logs on which there is a lien liable to the lienholder, which alleges that the lien on the logs was duly foreclosed in a suit instituted for that purpose, need not allege the facts showing the validity of the lien; the validity having been presumably established. [Ed. Note. For other cases, see Logs and Logging, Dec. Dig. § 31.*] sight on the part of the judiciary committee to which the amendment was referred, who failed to eliminate the word "sidewalks" from the section, and thus make it conform to the other legislation on the same subject at the same session of the Legislature. The evident and apparently sole purpose of the amendment was to strike from the section the clause relating to change of grades which had been elsewhere and otherwise provided for. Compliance with the constitutional mandate that the amended section must be re-enacted and published at length as amended (Const. art. 4, § 24) made it necessary to restate the entire section, leaving out only the part relat- A complaint based on B. & C. Comp. § 5692, making a person who without the consent ing to the change of grade; and, as the re- of the lien claimant renders impossible of idenpeal of the Vrooman act in relation to side-tification any logs on which there is a lien liable walks was of such a character that the phraseology of the act remained unchanged, it would be a strained construction of the section to say that by copying the section as it stood the Legislature intended to restore sidewalks to the operation of the act merely because this word was not stricken out. The subject of sidewalks was not in any way [Ed. Note. For other cases, see Logs and germane to the purpose of the amendment. Logging, Dec. Dig. § 31.*] 2. LOGS AND LOGGING (§ 31*)-LIENS-CONVERSION OF LOGS-ACTIONS-PLEADING. to the lienholder, which alleges that defendants, fraudulently conniving, conspiring, and confederating to cheat and defraud plaintiff out of his labor and lien security, destroyed and removed all of the logs and rendered the same impossible of identification, and appropriated the same sent of plaintiff to the removal as against a deto their own use, sufficiently negatives the conmurrer. For other cases see same topic and section NUMBER in Dec. & Am. Digs. 1907 to date, & Reporter Indexes 3. APPEAL AND ERROR (927*)-DENIAL OF [ recorded; that, in October, 1908, by considMOTION FOR NONSUIT-REVIEW. The denial of a judgment of nonsuit will not be reviewed on appeal unless it appears from the bill of exceptions that all the testimony offered at the time the motion for nonsuit was interposed has been brought up for examination, and, when this is not done, it will be presumed in favor of the judgment that there was sufficient evidence to warrant a submission. [Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. §§ 2912, 2917, 3748, 4024; Dec. Dig. § 927.*] 4. EVIDENCE (§ 596*)-SUFFICIENCY. A plaintiff having the burden of proof in a civil action must introduce such testimony as will reasonably show his right of recovery, but he need not prove his case beyond a reasonable doubt, and, where the evidence produced by the respective parties does not preponderate in favor of plaintiff, the jury must find for defendant. [Ed. Note. For other cases, see Evidence, Cent. Dig. §§ 2446-2448; Dec, Dig. § 596.*] 5. EVIDENCE (§ 596*)-SUFFICIENCY. Where the evidence is equally balanced, or so close as to make it doubtful which party has presented the greater weight of evidence, the verdict should be against the party having the burden of proof, but the mere fact that the evidence of plaintiff leaves the jury in doubt as to what the amount of the verdict should be does not require a finding for defendant. [Ed. Note.-For other cases, see Evidence, Cent. Dig. §§ 2446-2448; Dec. Dig. § 596.*] 6. LOGS AND LOGGING (8 31*) - LIENS ON LOGS. Under B. & C. Comp. § 5692, making one rendering impossible of identification logs on which there is a lien liable to the lienholder for damages to the extent of the sum secured, a defendant appropriating to his own use logs subject to a lien in favor of another, and the value of the logs exceed or equal the value of the lien, is liable to the lienholder. [Ed. Note.-For other cases, see Logs and Logging, Dec. Dig. § 31.*] Appeal from Circuit Court, Coos County; J. W. Hamilton, Judge. Action by W. E. Willett against L. D. Kinney and others. From a judgment for plaintiff, defendants appeal. Affirmed. This is an action to recover damages for the alleged removal of personal property that was subject to a logger's lien. The complaint averred, in effect, that at all the times stated therein the defendants E. M. Ward and Fred Hollister were partners under the firm name of the Ward Logging Company; that an agreement was consummated whereby the defendant L. D. Kinney stipulated to pay the plaintiff $1 per 1,000 feet for cutting saw logs from certain land in Coos county, and a like sum per 100 lineal feet for cutting piles therefrom; that, pursuant to such contract, the plaintiff between February 7, 1908, and March 21st of that year, cut from the land specified saw logs and piles, stating the quantity of each, for which Kinney promised to pay him $104, but had only discharged $21 thereof; that $83 thereby remained due, to secure the payment of which the plaintiff on or about April 21, 1908, filed a verified claim of lien on the logs and piles so cut, which notice was duly eration of the circuit court of that county. in a suit by the plaintiff herein against the defendant Kinney, a decree was duly rendered foreclosing the lien, and there was then determined to be due Willett thereon the sum of $128.50, including costs and disbursements, of which decree the plaintiff is the owner; that no part of the sum so awarded has been paid; that by virtue of the labor so performed, and of the filing, recording, and foreclosing of the lien, the plaintiff is the owner of a special interest in the logs and piles to the extent of $128.50; that such timber was then reasonably worth a sum largely in excess of all lien claims thereon; that the defendants, fraudulently conspiring to cheat, wrong, and defraud the plaintiff, removed all of such logs and piles, rendering the same impossible of identification, whereby the plaintiff was damaged in the sum of $128.50. A demurrer to the complaint, on the ground that it did not state facts sufficient to constitute a cause of action, was overruled, whereupon Ward and Hollister filed an answer which denied the material averments of the complaint, and for a separate defense alleged that after April, 1908, Ward bought of Kinney, who was the owner thereof, the logs and piles described in the complaint; that Ward agreed with Kinney and the plaintiff herein, and also with F. T. Barton, who claimed some interest in the timber, to pay for all the timber which he should take the stipulated prices for cutting the logs and piles; that he received certain quantities thereof valued at $51.28, one-half of which sum was due the plaintiff and the remainder belonged to Barton, and on account of which the plaintiff had received all but $8.28, which prior to the commencement of this action was tendered to him, and a like sum offered to Barton, but each refused to accept the same. A reply put in issue the allegations of new matter in the answer, and, the cause being tried, judgment was rendered as demanded in the complaint, and the defendants, who filed an answer. appeal. J. H. Guerry and A. II. Derbyshire, for appellants. N. C. McLeod for respondent. MOORE, C. J. (after stating the facts as above). It is contended that an error was committed in overruling the demurrer. This action is based on a clause of the statute which provides generally that, if any person without the express consent of the lien claimant render impossible of identification any saw logs or piles upon which there is a lien, such person shall be liable to the lienholder for damages to the extent of the sum so secured. B. & C. Comp. § 5692. It is argued that the complaint having stated that the plaintiff between February 7, 1908, and March 21st of that year, performed labor in cutting saw logs and piles, he must neces sarily have finished his work on the timber | doubt as to what the amount of the verdict on or before March 20, 1908, and, as the plaintiff's primary pleading avers that the lien was filed on or before April 21, 1908, the allegation does not show that the notice was filed within the 30 days prescribed (Id. § 5683), nor is it averred that the acts complained of were done "without the express consent of the person entitled to such lien," as required by the statute (Id. § 5692), and hence the demurrer should have been sustained. It will be remembered that the complaint alleges that the lien was duly foreclosed in a suit instituted for that purpose from which averment in an independent action it will be inferred that the validity of the lien was thereby established (B. & C. Comp. § 87), and hence it was unnecessary to set forth in the complaint the facts which the law inferred. Bliss, Code Plead. § 176; Rutenic v. Hamakar, 40 Or. 444, 450, 67 Pac. 196. It must be admitted that the complaint should have been framed in conformity with the language of the statute, and averred that the logs and piles were removed by the defendants "without the express consent of the person entitled to such lien." B. & C. Comp. § 5692. The allegation, however, in the complaint that the defendants, "fraudulently conniving, conspiring, and confederating * to cheat, wrong, and defraud this plaintiff out of his labor and lien security, did injure, impair, destroy, and remove all of said saw logs and piling, and rendered the same impossible of identification, and appropriated the same to their own use," etc., negatives such consent, and tenders an issue on that subject. No error was committed in overruling the demurrer. It is maintained that an error was committed in refusing to grant a judgment of nonsuit. The bill of exceptions does not purport to contain all the evidence given at the trial, but only the substance thereof. The rule is settled in this state that the action of a trial court in denying a motion for a judgment of nonsuit will not be reviewed on appeal unless it affirmatively appears from the bill of exceptions that all the testimony introduced at the time the motion was interposed has been brought up for examination, and, when this is not done, it will be presumed in favor of the judgment of the lower court that there was sufficient evidence to warrant a submission. Schaefer v. Stein, 29 Or. 147, 45 Pac. 301; Thomas v. Bowen, 29 Or. 258, 45 Pac. 768; First Nat. Bank v. Fire Association, 33 Or. 172, 193, 50 Pac. 568, 53 Pac. 8; Carney v. Duniway, 35 Or. 131, 135, 57 Pac. 192, 58 Pac. 105. It is insisted that errors were committed in refusing to charge the jury as requested, to wit: (1) "It is the duty of the plaintiff to present such evidence to the jury as will make clear his right to recover." (2) "If the evidence of the plaintiff leaves the jury in 104 P.-46 should be, then you should find for the defendants." (3) "If you should not be able to determine from the evidence beyond a reasonable doubt as to what the amount of the verdict should be, then you should find for the defendants." The burden of proof was imposed on the plaintiff, making it incumbent upon him to introduce such testimony as would reasonably show his right of recovery. If the evidence produced by the respective parties does not preponderate in favor of the plaintiff, the jury should find for the defendants. In the trial of civil actions, though the verdict is necessarily based on the weight of the evidence, the plaintiff, unless his cause of action is admitted by the answer, is required to introduce testimony which reasonably tends to show a right to recover his demand or some part thereof. Absolute certainty is rarely possible when the determination of an issue rests upon testimony, and, this being so, the omission of the word "reasonably" as qualifying the phrase "will make clear," as used in the first request, makes the demand for that part of the charge objectionable, and no error was committed in refusing to give it. "If the evidence," says a text-writer, "is equally balanced, or so close as to make it doubtful which party has presented the greater weight of evidence, then the verdict should be against the party on whom rests the burden of proof, and the refusal to give an instruction to that effect when properly requested is error." Hughes, Inst. to Juries, § 202. An examination of the second requested instruction will show that the language suggested does not come within the legal principle quoted, and no error was committed in denying the request. The third request demands a measure of proof "beyond a reasonable doubt," which degree of evidence is not required in the trial of civil actions, and hence the petition for the instruction was properly denied. An exception having been taken to the following part of the court's charge, it is argued that an error was committed in instructing the jury as follows: "If you should find from the evidence that the defendants appropriated to their own use a sufficient number of the logs mentioned in said complaint to amount to a sum of more or equal value to the judgment rendered in favor of plaintiff against L. D. Kinney on the foreclosure of his lien, then you will find a verdict for the plaintiff, provided you find that the logs were those subject to the lien of plaintiff as in complaint alleged." This instruction is within the issues; is compatible with the plaintiff's theory of the case, and complies with the provisions of the statute (B. & C. Comp. § 5692), and no error was committed in this respect. Other errors are assigned; but, deeming them unimportant, the judgment is affirmed. |