missal, filed a decision in favor of the assignee in insolvency, and gave judgment thereon against the plaintiff, Sere, and the defendant Afflebach for recovery of the possession of the property, and costs.

The judgment against Afflebach was void. The entry of the order of dismissal ousted the court of jurisdiction of the person of Afflebach; and, thereafter, jurisdiction over him could not be resumed and exercised without vacating the order. Upon the entry of the order, the defendant ceased to be a party to the action, and was not bound by any of the subsequent proceedings therein. The judgment entered against him was therefore irregular and void. And the judgment against Sere was erroneous, because the fact upon which it was rendered was not sustained by the evidence. Without conflict, the evidence showed that the alleged sale of the partnership property by Sere to McGovern was not an absolute sale; it was a sale conditional upon payment of $1,500 gold coin, payable in two installments,-onethird thereof on February 14, 1881, and the remainder on the fourteenth of June thereafter, "time to be considered of the essence of the agreement;" and if payment was not made within the time specified, the moneys paid under the agreement to be forfeited, and the vendor had the right to the possession of the property. When the first installment matured, payment was demanded and refused; and when the plaintiff commenced the action in hand, McGovern resorted to his proceedings in insolvency. The court found that no part of the $1,500 had been paid, according to the terms of the agreement, although payment had been demanded. Yet, although the conditions had not been performed, and the defendant absolutely refused to perform them, the court decided that title passed by the executory agreement to McGovern, and he became the absolute owner of the property. This was erroneous. It is well settled that a conditional sale dependent upon an act to be done, which is not done, does not pass title. Whitney v. Eaton, 15 Gray, 225; Stone v. Perry, 60 Me. 48; Paul v. Reed, 52 N. H. 136; Russell v. Minor, 22 Wend. 659.

Judgment and order reversed, and cause remanded for a new trial.

We concur: Ross, J.; McKINstry, J.

(2 Cal. Unrep. 310)

MARTIN v. HILL and others. (No. 7,923.)

Filed May 17, 1884.

The construction by the lower court of the contract sued upon held erroneous, and judgment and order reversed, and cause remanded

Department 2. Appeal from the superior court of Marin county. This was an action by plaintiff to be declared owner of certain lands, and that one of the defendants, L. W. Walker, be declared to hold the same in trust for him, and that defendants be compelled to execute a deed to him. Prior to the commencement of this action a suit in partition was pending between owners of undivided interests in the rancho Laguna de San Antonio. Certain of the parties, to protect their interests, formed an association, and entered into a contract whereby they agreed that on the decree of partition the parties to such agreement might have a right to purchase from the general interest, through the association, such portions of the property as would be necessary, after such decree, to give them title to property then in their possession. The defendant L. W. Walker was an owner of an undivided interest, and a party to such agreement. Martin, the plaintiff herein, had no title, and was not made a party to the partition suit, nor did he appear therein; he was a mere trespasser on the rancho, but before the decree he purchased of said Walker a parcel of undivided interest,-the equivalent of the parcel here sued for,-in order to protect his possession thereto. He then, with the other parties before mentioned, entered into such agreement. He now, after decree of partition, claimed a right and brought this suit to enforce a conveyance of such property to him. Defendants refused to make such conveyance, denying his right to the same on the ground that such agreement was only for the purpose of securing the parties to such partition suit, so that if, after partition, they had not title to such land, or portions thereof, as they were in possession of, they might purchase of the association sufficient to give them proper title thereto. The lower court rendered judgment for defendants on the grounds set. forth by them. Plaintiffs appealed. The other facts are set forth in the opinion.

E. S. Lippitt, for appellants.

A. W. Thompson, for respondent.

BY THE COURT. The substantial point in this controversy is thus stated by appellant in his points: "Did the defendants agree with plaintiff to make title to the land in him, and have they performed their agreement? and if not, should they be compelled to do so?" The court below, in its opinion, used the following language:

"To hold in the case at bar that the plaintiff may purchase from the parties to this contract lands in his possession, the same being a part of the rancho Laguna de San Antonio, is, in substance, saying that he must be allowed to take his undivided interest in the rancho Laguna de San Antonio from the remainder of said rancho, and such is not the meaning of the contract under consideration, nor was it in any single sense the intention of the parties to such contract."

We think the principal object of the contract was to enable the parties to it to acquire title to the lands in their possession respectively, and that the court erred in its construction of the contract. That being the case, and as the defendants have not performed their agreement in that regard, and as they should be compelled to do so, plaintiff is entitled to judgment.

In our opinion, the claim that plaintiff urges against Walker is entirely outside of this case, and we see no reason why his urging such claim against Walker should deprive him of the judgment to which he would otherwise be entitled. Whatever claim he makes against Walker must depend upon some contract between Walker and himself. If, under such contract, his claim is valid, he should be allowed to enforce it. If invalid, it is not to be supposed that he can enforce it. But in no view can it be held that plaintiff, having complied with the contract counted on in this case, is not entitled to the relief which he asks, by reason of the fact that he has brought a suit against Walker, based on some other claim which he may or may not succeed in sustaining. If the relief obtained by plaintiff here is a defense to Walker, in the suit against him, Walker will have abundant opportunity for setting it up in that case.

Judgment and order reversed, and cause remanded, with instructions to render judgment for plaintiff in accordance with the prayer of his complaint.

(2 Cal. Unrep. 313)

PEOPLE ex rel. BUCKNER v. VEUVE. (No. 9,124.)

Filed May 17, 1884.

There is no such office as "police justice of the city of San Jose," and therefore such office cannot be usurped, intruded into, or unlawfully held or exercised.

The exercise by a justice of the peace of jurisdiction outside of that conferred by the constitution is not the exercise of an office, and the result thereof would be to render acts done outside of such jurisdiction void.

In bank. Appeal from the superior court of Santa Clara county. This was a proceeding against the defendant for usurpation of the office of "police justice of the city of San Jose." The defendant answered that there was no such office existing, and that the jurisdiction which he exercised was that conferred on a justice of the peace, which office he held, and which included the powers of a police judge; and the trial court so found. Plaintiff appealed.

Atty. Gen. Marshall and W. B. Hardy, for appellant.

D. W. Harrington, for respondent.

BY THE COURT. There is no such office as "police justice of the city of San Jose;" therefore, the defendant could not have usurped, intruded into, or unlawfully held or exercised that office. Conceding the act to be unconstitutional which in terms confers jurisdiction on justices of the peace in cities of more than 10,000 inhabitants which other justices of the peace do not possess, the exercise of such additional jurisdiction would not be the exercise of an office, but the exercise of jurisdiction outside of the office of justice of the peace; the result of which would be to render acts done outside of such jurisdiction void.

Judgment affirmed.

McCUE v. TUNSTEAD. (No. 7,306.)

Filed May 19, 1884.

Two horses owned by a judgment debtor engaged in husbandry are exempt from execution; it is not essential to such exemption that the owner should devote himself exclusively to husbandry, or that the horses should be used exclusively for that purpose.

Department 2. Appeal from the superior court of Marin county. J. S. McCue, for appellant.

T. J. Crowley, for respondent.

BY THE COURT. The court found, in substance, that the plaintiff was the owner and in the possession of a farm of about 150 acres of land, which he cultivates for raising grain, etc., and that the horse which this action was brought to recover was used as a work-horse on said farm-sometimes singly and sometimes doubly. It is also found that the plaintiff is the publisher of a weekly newspaper and the proprietor of patent medicines, although his main reliance for support is upon his farm, "and almost the entire income from that is from the services of said horse as a stallion, and the agistment of mares for breeding to him." The plaintiff is the owner of other horses pledged for a debt owing by him, and in the possession of the pledgee.

In addition to "the farming utensils or implements of husbandry of the judgment debtor," the law exempts from execution two horses. Code Civil Proc. § 690, subd. 3. The findings establish beyond doubt that the plaintiff employed this horse in husbandry. He was

a farm-horse in the same sense that the plows, harrows, and wagons used on the farm were utensils or implements of husbandry. Conceding that some of the uses to which the horse was put were not strictly in the line of husbandry, he was nevertheless one of two horses owned by the judgment debtor, and employed by him in husbandry. The law does not specify how much or what use shall be made of "the farming utensils or implements of husbandry," or of the two horses exempted from execution. They are exempt because owned by a judgment debtor engaged in husbandry. And in order to make them exempt it is not necessary that the owner of them should devote himself exclusively to husbandry. Such is not the language of the law. It does not say the farming utensils, etc., of a husbandman or farmer shall be exempt, but the farming utensils, etc., of husbandry; that is, utensils, etc., employed by the judgment debtor in husbandry or farming. This is the obvious meaning of the language, and we do not feel at liberty to hold that when a judgment debtor shows that he is carrying on a farm, and has but two horses which he uses in farming, that they are not exempt because he sometimes uses them for some other purposes. That would necessitate the importation of something into the law which it does not now contain. Judgment reversed, with directions to the court below to enter judgment in favor of the plaintiff on the findings.

(65 Cal. 247)


Filed May 20, 1884.

Where large sums of a bank's funds are loaned to an individual by the cashier of a bank without any security, and without any entry thereof in the books of the bank, such cashier having power to transact the business of the bank under direction of the board of trustees, and he, to conceal the loans from the knowledge of the board of trustees, makes false reports of the amount of cash on hand, he will be liable to such bank for the money lost on such loan, though the trustees neglect their duty in not regularly counting the cash as required by the by-laws.

Where a regular charge was made by the defendant, a cashier, on the books of a bank, for his salary, which charge was acquiesced in by the trustees, held, that this amounted to an agreement to the charge made by defendant for his services.

Department 1. Appeal from the superior court of San Joaquin county.

Terry, McKinne & Terry, for appellant.

W. L. Dudley and J. B. Hall, for respondent.

Ross, J. The plaintiff is a banking corporation, and the defendant, from the thirtieth day of March, 1868, to March 17, 1877, was

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