cause at all. But the superior court bad original jurisdiction of the subject-matter, and, * * * having jurisdiction over the subject-matter, the court obtained jurisdiction over the parties when, without objection, they proceeded to trial upon the main issue. *

The proper procedure would have been for the superior court to have set aside the judgment, and ordered the police court to reinand the cause in accordance with section 838." There is nothing in the opinion in Hart v. Carnall-Ilopkins Co., 101 Cal. 100, 3: lac. 633, to modify this statement of the law. See, also, Arroyo Co. v. Superior Court, 92 Cal. 47, 28 Pac. 54, 27 Am. St. Rep. 91.

In the case at bar, if a question of title or possession of real property be involved, the parties are not proceeding to trial withiout objection, and in such a case the superior court has no jurisdiction at all. Veither original by consent, or process, nor appellate because appellant failed to comply with the statutory requirements in attempting to appeal from the judgment in the justice's court.

It is proper, therefore, that a writ issue from this court prohibiting the superior court of Kings county from proceeding with the trial of said cause, and it is so ordered.

We concur: ALLEN, P. J.; SIIAW, J.

makes application to this court for a writ of prohibition to prevent the superior court of Kings county from proceeding with the trial of said cause.

We have stated the matter at length, since we think the mere statement of the facts give ample reasons for the issuance of the writ as prayed for. Conceding the last undertaking filed to be sufficient in form and to have been filed in the proper court, it was ineffectual to perfect the appeal, as it was not filed within 30 days after the rendition of the judgment, Sections 974, 978, Code Civ. Proc.; Coker v. Superior Court, 58 Cal. 178. The justification of the sureties on the first undertaking having been abandoned, the appeal taken was "not effectual for any purpose" after May 25th (30 days from the rendition of the judgment). The proceedings to justify on the only undertaking given within the statutory time extended that time only for the purpose of justification, and did not operate to give additional time within which a new and independent undertaking might be filed. The sureties having failed to justify, the appeal must be regarded as if no such undertaking had been given. Bennett v. Superior Court, 113 Cal. 442, 45 Pac. 684, 54 Am. St. Rep. 354. There was nothing before the superior court until the undertaking was filed, and, until the sureties justified, the cause remained in the justice's court. McCracken v. Superior Court, 86 Cal. 76, 24 Pac. 845. By the appeal attempted to be taken the superior court acquired no jurisdiction to entertain any proceeding in the case except a motion to dismiss the appeal.

It is unnecessary in ruling upon this application to determine whether or not the verified answer filed in the justice's court raised an issue involving the title or possession of real property. Conceding that it does, it would not give the superior court jurisdiction of the appeal here in question. None of the authorities cited hold that a party can be brought within the jurisdiction of the court against his consent by any other than the statutory method. In the case of Santa Barbara v. Eldred, 95 Cal. 378, 30 Pac. 562, an application for a transfer to the superior court was made to the police court on the statutory grounds provided by section 838 of the Code of Civil Procedure, and the application denied, the cause was tried by the police court, and an appeal from the judgment taken to the superior court. The case was tried in the superior court without objection, and the question of whether the jurisdiction exercised by the superior court was original or appellate was under consideration by the Supreme Court on an appeal to that court from the judgment rendered by the superior court. The court says: "The police court had no jurisdiction to try the cause upon the merits, and it necessarily follows that the superior court had no appellate jurisdiction to try the

(5 Cal. App. 773) NELSON v. MCCARTY. (Civ. 370.) (Court of Appeal, Second District, California.


Evidence in an action for negligently injuring plaintiff by firing a revolver held to sustain a finding that the shot fired by defendant did not cause plaintiff's injury.

[Ed. Note. For cases in point, see Cent. Dig. vol. 48, Weapons, § 34.] 2. APPEAL - REVIEW-CONCLUSIVENESS OF FINDING.

A finding on conflicting evidence will not be disturbed on appeal.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 3, Appeal and Error, $$ 3935–3937.]

Appeal from Superior Court, San Diego County ; E. S. Torrance, Judge.

Personal injury action by S. A. Nelson against F. W. McCarty. Plaintiff appeals from a judgment for defendant and an order denying a new trial. Affirmed.

L. E. Dadmun, for appellant. T. L. Lewis and Daney & Lewis, for respondent.

ALLEN, P. J. Appeal by plaintiff from a judgment in favor of defendant, and from an order denying a new trial.

This action is one for personal injuries alleged to have occurred through the wanton, reckless, and negligent act of defendant in firing a revolver toward and in the direction of plaintiff, by reason whereof he was wounded and injured. The answer, among other

(6 Cal. App. 54) DURPHY v. PEARSALL. (Civ. 296.) (Court of Appeal, Third District, California.


Where, in a suit for a partnership accounting, the complaint alleged that the profits accrued and to accrue to the firm, as would appear on an accounting and settlement of the firm business, would amount to a specified sum, and prayed that an accounting be taken of all of the partnership transactions, the matter of a complete accounting was a material issue, and the failure of the court to find on it in making findings in favor of plaintiff, based on a part of the transactions, was erroneous. 2. APPEAL – REVIEW – DECISION AGAINST LAW.

Where, in a suit for a partnership accounting, the matter of a complete accounting was a material issue, and the court failed to find on it, but made findings in favor of plaintiff based on a part of the transactions of the partnership, the findings were against the law and reviewable on appeal.

Appeal from Superior Court, Humboldt County ; E. W. Wilson, Judge.

Action by B. F. Durphy against C. E. Pearsall. From a judgment for plaintiff, defendant appeals. Reversed.

J. N. Gillett, 1. W. Hill, W. T. S. Hadley, and Edwin S. Easley, for appellant. J. H. G. Weaver, H. L. Ford, L. M. Burnell, and William Kehoe, for respondent.

things, denies the firing of any revolver or firearm by defendant toward or in the direction of plaintiff, or the wanton, reckless, or negligent firing of a revolver at any time, or in any direction whatever by defendant, and denies that any bullet fired or discharged from the revolver of defendant hit or injured the plaintiff. The cause was tried by the court without a jury, and the court found that the defendant did not at the time alleged in the complaint, or at any other time, or at all, carelessly or negligently fire or discharge any revolver toward or in the direction of plaintiff, or on the date mentioned or at any time carelessly, wantonly, recklessly, or negligently fire or discharge any revolver or other firearm, and that no bullet fired or discharged by the defendant from his revolver, or any other revolver or other firearm, fired by defendant, struck said plaintiff or entered said plaintiff's leg.

From the bill of exceptions, it appears that a horse attached to a buggy, in which was seated a woman, was running at a great rate of speed through the public streets of San Diego; that the bridle of such horse had become disarranged, and the woman had lost all control over the animal; that the defendant was a policeman in the city of San Diego, and fired a shot from a revolver at the horse for the purpose of so disabling it as that it might be gotten under control. It further appears from the record that another shot was fired by another policeman at the same horse about the same time; and there is evidence in the record tending to show that a third shot was fired at the horse within the same block. That plaintiff was injured by a bullet from one of the three shots is not to be questioned. But there is ample testimony in the record to justify the court in finding that the shot fired by defendant was not the cause of any injury to plaintiff. There is sore testimony which indicates that, from the very situation of the parties at the time of the firing of the shot by defendant, it was not possible for the shot fired from his revolver to have in any wise affected the plaintiff. The most that can be said in favor of appellant's position is that there is some ('ontlict in the testimony; but the rule is well established that, where the testimony is conflicting, an appellate court in support of the decision of the court below will construe the testimony as favorably as possible for the respondent, and will not disturba judgment or verdict when there is a substantial conflict in the testimony, even though the appellate court may consider it greatly against the weight of the evidence. Under this rule, it is unnecessary for us to discuss any other questions presented upon the appeal.

The judginent and order are affirmed.

BURNETT, J. The action is based upon an alleged partnership between plaintiff and defendant. Among other things, the plaintiff prays "that an account be taken of all of said copartnership dealings and transactions from the commencement thereof and of the moneys received and paid out by plaintiff and defendant for and on account of said copartnership." The judgment was against defendant for $6,048.91. Detendant has appealed from the judgment, ind also from an order denying his motion for a new trial. These appeals are presented in separate transcripts, but we shall consider them together. All the points maile by appellant except two seem to be satisfactorily answered by respondent. As to those two propositions, however, respondent has not attempted in his brief to afford the court any assistance, and it cannot be said that the points are unimportant.

The first is that "the court's finding of fact No. 15, to the effect that appellant's net profits from the Henry deal were $16,196.11, is not justified by the evidence.” According to appellant's figures, the gross profits from the sale of the 13,000 acres in the Ilenry deal were $38,000 and the expenses were $33,500, and since admittedly plaintiff was only interested in the sale of 10,010 acres, the proportional net profit in which he is entitled to share is about $3,500, instead of $16,196.11, as found by the court. There is undoubtedly some evidence to uphold appellant's contention in this regard, and respondent might

We concur: SHAW, J.; TAGGART, J.

them, it is expressly found that the settlement of April 3d was only a partial settlement of the copartnership, matter.

It seems clear, therefore, that the doctrine announced in Albery v. Geis, 1 Cal. App. 381, 82 Pac. 202, and Clark v. Hewitt, 136 Cal. 77, 68 Pac. 303, demands a reversal of the case. The reason for the rule demanding an accounting is stated in Story on Partner ship, $ 221, as follows: “Until all the partnership concerns are ascertained and adjusted it is impossible to know whether a particular partner be a debtor or a creditor of the firm ; for, although he may have advanced large sums of money on account thereof, he may be indebted to the firm in a much larger amount.” The matter of a complete accounting, therefore, was a material issue, and, the court having failed to find upon it, the decision is against law, and may be reviewed on appeal. Adams v. Helbing, 107 Cal. 301, 40 Pac. 422; Clark v. Hewitt, supra; Senior y. Anderson, 138 Cal. 721, 72 Pac. 319.

The judgment and order are reversed.

We concur: CUIPMAN, P. J.; HART, J.

well have called our attention specifically to the evidence upon which he relies to support the finding.

Again, appellant claims "that there is another error in the same finding where the court subtracts $0,215.10, advanced by defendant to plaintiff from the gross profits, instead of from the net one-half belonging to the plaintiff.” Appellant's position would be sound if it appeared that the $0,215.10 were advanced from the separate funds of defendant, but, on the contrary, the finding shows that it was a part of the partnership funds, as it was realized from the llenry sale. There appears to us, however, to be a mistake in the figures, which seems to have escaped the attention of counsel and the learned trial judge. The said finding 15 discloses that defendant received of the partnership funds the sum of $16,196.41; that plaintiff received $6,215.10 advanced by defendant and $11,000 from the Hammond deal, making a total of $17,215.10. The total amount received by plaintiff and defendant was thus $33,411.51. If they were to share equally, each would be entitled, therefore, to $16,705.75. But, under the agreement of April 3, 1900, defendant, out of his share, was to pay plaintiff $3,500. Add this amount to $16,705.75, and we have $20,205.75, the sum plaintiff should receive. But he had already received $17,215.10. The difference, or $2,990.05, is the amount for which he should have judgment, assuming that the record discloses no other defect.

Finding 16, which we must assume is based upon the figures found in finding 15, is "that defendant has received in excess of his share of said partnership funds the sum of $6,098.41, which said excess belongs to plaintiff herein.” It may be that other transactions were taken into account, but the findings do not disclose them. It must be mani. fest, however, we think, that there ought to have been a complete accounting as prayed for by plaintiff. The judgment might then appear to be correct.

Respondent suggested in the oral argument that a complete accounting was not necessary, as the “Hammond and Henry" deals were the only ones involved in the action. We must look, liowever, to the pleadings to determine what questions are submitted to the court for decision. To indicate the scope of such inquiry, we refer to paragraph 15 of the complaint: “And the plaintiff alleges, on information and belief, that the profits accrued and to accrue to said copartnership between plaintiff and defendant as will appear upon a true accounting and settle ment of said copartnership business, will amount to the sum of $131,000, one-half of which belongs to and of right ought to be paid to plaintiff herein." Besides, it appears from the findings that there were other transactions of the partnership, but no account is taken of them as far as we are advised; and as emphasizing the importance of considering

(5 Cal. App. 771) DEMING v. GAMBLE. (Civ. 358.) (Court of Appeal, Second District, California.

June 20, 1907.)

Where, in a suit by a husband against the administ rator of his wife for a decree adjudging that land standing in the name of the wife is community property, there was no evidence that the husband knew the contents of the petition for administration of the estate of the wife, averring that the land was her homestead and her property at the time of her death, which petition was signed and sworn to by defendant, the petition and a waiver attached by the husband of his right to administration and a request for defendant's appointment were inadmissible as admissions against interest.

[Ed. Note:-For cases in point, see Cent. Dig. vol. 20, Evidence, 714.]

Appeal from Superior Court, Los Angeles County; W. P. James, Judge.

Action by H. C. Deming against F. G. Gamble, administrator of Mannie Deming, deceased. From a judgment for defendant and from an order denying a new trial, plaintiff appeals. Reversed and remanded for new trial.

Valentine & Newby, for appellant. Geo. . Adams and Hugh J. Crawford, for respondent.

ALLEN, P. J. Appeal by plaintiff from a judgment and an order denying a new trial.

This action was brought by the plaintiff against defendant as administrator of the estate of plaintiff's deceased wife, the object of which was to have it adjudged that certain premises, to wit, lot 44, Park Villa tract, and lot 45, Angelus Vista tract, in Los. Angeles city, all of which stood in the name of the wife at her decease, were community property. The court found that all of the

premises described were purchased by the The judgment and order are reversed, and husband and the purchase money paid by bim cause remanded for a new trial. out of the funds of tbe community, and that the principal part of the improvements upon We concur: SHAW, J.; TAGGART, J. lot 45 had been paid for by him after the decease of the wife; that, as to lot 44, the title

(6 Cal. A. 35) was in the wife in trust for the community,

GUPTILL v. KELSEY. (Civ. 329.) but that lot 45 was conveyed to the wife by (Court of Appeal, Third District, California. way of gift from the husband, and was her

June 20, 1907.) separate estate. From this judgment in 1. TAXATION-DELINQUENT Taxes-ENFORCE

MENT. favor of defendant as to the said last-men

St. 1891, p. 223, c. 161, authorizing the egtioned lot, and from an order denying a new | tablishment of sanitary districts with power to trial, plaintiff appeals upon a bill of excep- levy taxes on property within the districts, pro tions.

viding for the collection of the taxes by the

county tax collector in the manner he collects All of the evidence introduced by defend the county taxes, declaring that the laws relatant tending to rebut that of plaintiff, in his ing to the collection of taxes and enforcement of effort to overcome the presumption created delinquent taxes shall apply, and empowering

the board to provide a system for the collection by the deeds, was in the nature of admis

of delinquent taxes, etc., points out the manner sions of plaintiff against interest made before in which the tax collector of a county shall coland after the decease of the wife. The trial lect such taxes, but authorizes the board to coljudge, under objections and exceptions, per- such regulations, consistent with the laws of the

lect the taxes through its own agent, pursuant to mitted the defendant to introduce in evi-state, as it may adopt. dence a petition for letters of administration 2. SAME-TAX SALE-VALIDITY. signed and sworn to by defendant, in wbich

The failure of the tax collector of a county petition it is stated that lot 45 was the

to comply with Pol. Code. $$ 3ītit-3766, 3709,

as amended in 1993 and 1897, and section 3785, homestead of deceased and was her property as it existed prior to the statutes of 1895 and at the time of her decease, and of the value 1897, relating to the sale of property for delinof $11,000. To this petition was attached a

quent taxes, in collecting delinquent taxes as

sessed by a sanitary district established under written waiver on the part of the husband, a statute of 1891 is fatal to the validity of a plaintiff herein, of bis right to administer, sale made in 1899, and his deed to the purchaser and a request for defendant's appointment is void. There was no preliminary proof tending to 3. SAME-REMEDY OF OWNER.

An owner whose land is sold for delinquent show that plaintiff had ever read the peti- sanitary district taxes without complying with tion signed by defendant, or had knowledge the law may sue for the cancellation of the unof its contents, when he signed the waiver recorded tax deed purporting to convey the land so attached. The appointment and qualifica by proceeding under Civ. Code, $ 3412, provid

ing that a written instrument which, if left outtion of defendant as administrator was not standing, may cause injury to a person against in issue. The court in overruling the objec whom it is void may on his application be adtions made to the introduction of this paper

judged void and canceled, and he need not pur

Bule the remedy provided by Code Civ. Proc. $ upon the grounds of its immateriality and 738. providing for action to quiet title by perincompetency must be taken as having con sons against others claiming interest in real essidered that the statement of ownership tate adverse to them. therein made by the defendant was material

Appeal from Superior Court, Alameda and competent, and that plaintiff by signing County; W. E. Greene, Judge. the waiver thereto attached became bound by

Action by Mary E. Guptill against B. Kelsuch declarations. We think the court erred sey. From a judgment for plaintiff, defendIn admitting this paper writing in evidence.

ant appeals. Affirmed. The waiver signed by the husband is not

Mortimer Smith, for appellant. Gavin Mca part of the petition, and that it was there

Nab, for respondent. unto attached was of no significance. The waiver might well have been upon a separate HART, J. The complaint in this action Instrument, in which event there would be

alleges that, at the time of the institution of no room for controversy in relation to the the suit, the plaintiff was the owner and admissibility of the petition. The mere ap seized in fee of certain real property situatpending of the waiver to an instrument, the ed within the boundaries of "sanitary district contents of which were unknown, could not No. 2, Fruitvale, county of Alameda, a corhave the effect to conclude the party signing poration organized under the laws of the the waiver as to the facts alleged in the state of California,” and that said real petition.

property was sold in the year 1899 by the The oral evidence appearing in the record tax collector of Alameda county to the deIs most conflicting, and we cannot say from fendant, for unpaid and delinquent taxes assuch record that the findings of the court as sessed thereon by and for said sanitary disto the separate character of this lot 45 would trict No. 2, and that a tax deed to said have been the same had this petition not been lands was executed by said tax collector to considered and due weight given it as an said defendaut on the 13th day of July, 1901, admission against interest. The error, there It is alleged that "said deed has never been fure, in our opinion, was prejudicial.

recorded, and that the plaintiff has never

seen the same," and that "plaintiff is inform object of the law appears to be the authorizaed and believes, and upon her information tion of the establishment of sanitary districts and belief alleges, that said tax deed is in such communities for the purpose of inregular in form, and purports to convey vesting them with such corporate rights as title of all of said described lands to the will the more effectually enable the residents defendant, B. Kelsey," etc. It is charged thereof to promote and maintain healtlıful in the complaint that several of the statutory sanitary conditions within the boundaries provisions prescribing the steps necessary of such districts. Such corporations have to be taken in order to effectuate a valid sale no power of course, except such as the of property for delinquent taxes were not, Legislature has legitimately clothed them in the sale by the tax collector of the prop with. While they are public corporations, erty in question, complied with, and that, they are not municipal corporations. In les therefore, such sale was void. It is averred Werner, 129 Cal. 567, 62 Pac. 97. The law that the price paid for the property to the from which they derive their right to exist tax collector by the defendant was the sum provides, among other things, for the levying of $3.39, and that prior to the commencement of taxes for the accomplishment of their of the action plaintiff “tendered in gold coin corporate purposes upon all property within the sum of $3.39, with interest thereon, from their boundary lines, and also provides for the 3d day of July, 1899, and the sum of $3 the incurring of a bonded indebtedness in it additional, the said latter sum being the limited amount. The provision with refersum defendant paid to said tax collector ence to the collection of the taxes levied aufor the issuance of said pretended deed, with thorizes two methods, either of which may, interest thereon from the 13th day of July, in the discretion of the sanitary board, be 1901, and plaintiff offered to pay to said resorted to for the purposes of such collecdefendant the foregoing sums of money, and, tion. It is this provision which furnishes the in addition thereto, any additional sums that principal one of the several reasons upon defendant might make known to the plaintiff which the defendant bases his charge in the that he had expended on account of or by special demurrer and his contention in argureason of said pretended tax deed, with in ment that the complaint is faulty because terest thereon, provided defendant would de of uncertainty. The provision referred to is liver to plaintiff said pretended tax deed, found in section 12 of the act, and reads as or cancel said pretended tax deed,” and that follows: “On or before the first Monday in "defendant refused to accept said sums of July of each year, the board shall transmit, money and refused to deliver to plaintiff or cause the assessor to transmit, a duplicate said pretended tax deed, or to cancel the of the list so made to the tax collector of same, and still so refuses." It is further the county, who shall collect the taxes shown declared that plaintiff is ready and willing by said list to be due, in the same manner as to pay into court for the benefit of the de he collects the county taxes, and all the fendant the sums of money tendered by plain provisions of the laws of the state as to tiff to defendant before the commencement the collection of taxes and delinquent taxes, of the suit, or “any sums of money that this and the enforcement of the payment therecourt may find as having been expended by of, so far as applicable, sball apply to the defendant by reason of said pretended tax, collection of taxes for sanitary purposes; and or said pretended tax deed, with interest on said tax collector, and the sureties on his said sums, and any other sums, or costs or official bond, shall be responsible for the expenses that said detendant may be found due performance of the duties imposeil on by this court to have expended or incurred in him by this act; provided, that the sanitary the matter of said pretended tax, or said board may, in its discretion, direct pretended tax deed, with interest thereon." district attorney of the county to commence The defendant interposed a general and a spe and prosecute suits for the collection of cial demurrer to the complaint. The special the whole, or any portion, of the delinquent: demurrer charges that the complaint is un taxes; and it shall be the duty of the dis(“ertain in several specified particulars. The trict attorney to carry out such directions demurrer was overruled by the court, and, of the sanitary board, and he, and the surethe defendant failing to answer the com ties upon his official bond, shall be responsible plaint within the time granted him by the for the due performance of the duty imposed court, a judgment by (lefault was entered upon him by this act; and provided further, against him. The appeal is from said judg that the sanitary board may, at any time, ment.

by order enforced in its minutes, provide a The Legislature of 1891 passell a law em system for the collection of delinquent taxes, bracing a scheme for the establishment of or make any change in the manner of their sunitary districts throughout the state, the collection, which as to such taxes shall have manifest purpose of which is to enable com the force of law. All money collected for munities consisting of small numbers of in sanitary purposes by the district attorney habitants to exercise, under corporate au under this act shall be at once paid to the thority, to a limiteul extent, (ertain portions county treasurer." Laws 1991, p. 227, c. 161. ol? the police power of the state. The main The specitic contention is that where a law

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