Sidebilder
PDF
ePub

in the fact that the complaint here alleges that the plaintiff was the owner of the fences standing upon the land mentioned therein. But this averment added nothing to the complaint or to the cause of action therein set forth, and the gravamen of which was the fact of possession of the land by the plaintiff when the alleged trespasses were committed by the defendant.

The averment as to ownership of fences might be stricken out, and the cause of action and proof which might have been adduced in its support, would be precisely the same.

We think, therefore, upon the views stated in the case referred to, the Justice must be held to have had jurisdiction of the action before its transfer to the Court below.

2. But the judgment for gold coin cannot be supported, and it must be modified accordingly.

The judgment of the Court below is therefore modified by striking therefrom the words "in gold coinof the United States," and the cause remanded with directions to make such modification; the appellant not to recover of the respondent any costs occasioned by this appeal.

[No. 5183.]

[Filed April 20, 1878.] JOHNSON vs. SQUIRES.

Appeal from Seventh District Court,-Solano County,-WM. C. WALLACE, Judge.

FINDINGS WHEN INSUFFICIENT.-When a finding embraces several issues of fact or pleadings, it becomes indefinite and insufficient, as a finding of fact.

STATEMENT OF FACTS.

This was an action brought to quiet title to certain land in Solano County, on the Sacramento River, in Rio Vista Township. Plaintiffs, James Johnson and T. P. Emigh, claim the title in fee to two acres of land, in which defendant, Wm. K. Squires claims an adverse interest—by having contracted with Geo. H. Jenkins in August, 1868, the theu owner, for an undivided half of an acre of said land-for $50, and to have paid the same by the erection of buildings, in company with said Jenkins, and paying for all the materials, etc. Defendant retained possession till 1872, when plaintiffs broke into his buildings, and took forcible possession, and of personal goods. Plaintiffs title admitted to be in regular succession, but obtained after full notice of the contract and occupancy of defendant. ---Trial held May 18th, 1878;-among the findings-4th, that the defendant has no claim whatever," etc.-5th, "that all the issues of fact

[ocr errors]

raised by the pleadings in this case, are hereby found and decided in favor of the plaintiffs, and against said defendant." Judgment for plaintiffs and costs, $52.35 on May 21, 1875. Motion by defendant for a new trial, with much testimony, but overruled.-Appeal taken from judgment and order, November 10, 1875. Defendant claims, as he paid for all the lumber in the buildings, and for the most of the work, he could compel. specific performance of the contract,

etc.

Wm. S. Wells, attorneys for plaintiffs and respondents.

M. A. Wheaton and J. McKenna, for defendant and appellant..

OPINION BY THE COURT.

The answer of defendant Squires set up an affirmative defense, upon which, if proven, he would be entitled to a decree in his favor.

The findings of fact do not, in terms, dispose of the issues tendered by this affirmative defense, and they remain undisposed of unless by the fifth finding. This finding is as follows: That all the issues of fact raised by the pleadings in this case are hereby found and decided in favor of the plaintiffs and against said defendant." We do not think this finding sufficient. To say that all the issues of fact raised by the pleadings are found and decided in favor of either party, suggests an inquiry as to what issues are raised by the pleadingsa question often found to be one of no little difficulty to determine, and concerning which, in this case, the views of the Court below may be widely different from our own.

We think the finding under consideration as indefinite in its character as the finding that "all the material allegations of the complaint" are resolved in favor of a named one or other of the parties, and which we have held insufficient as a finding of fact.

Judgment and order denying new trial reversed and cause remanded for a new trial. Remittitur forthwith.

IMPORTANT CASES DECIDED.-The noted mining-debris test case of Atkinson vs. The Amador and Sac. Canal Co., decided April 30th; and of People vs. Royal, of Santa Rosa; and of Oakley rs. Stuart of our city-all deferred for want of space,- -we hope to report fully in our next issue.

Supreme Court Unwritten Opinions.

[No. 5,714.-Decided April 18, 1878.]

MATTER OF THE ESTATE OF KEENAN.

Appeal from Probate Court of Placer County.

PROBATE JURISDICTION:

STATEMENT OF THE CASE.

This is the same case materially as Wetzlar vs. Fitch, filed April 4, reported in RECORD No. 3, page 46. Wetzlar presents to the Probate Court the account of the estate of Jno. C. Keenan, deceased, of $9,481.93 as due from the estate of Rosanna H. Keenan of which he (Jno. C.) was executor. The Court refused to set the account for hearing, on the ground that more than ten months had elapsed from the publication of notice to creditors,--and further, that Wetzlar, as executor of Jro. C. Keenan's estate had no authority to act for the estate of R. H. Keenan. Appeal by Wetzlar from the order denying motion for new trial, and also from the order of distribution previously entered, and from the order refusing to set the account for hearing. Orders now affirmed.

Geo. Cadwalader, attorney for appellant.

McKune & Welty and Armstrong & Hinkson, attorney for respondent.

[No. 5426. Decided April 18, 1878.]

DYER vs. BRANDENSTEIN.

Appeal from the Fifteenth District Court, San Francisco, DWINELLE, Judge.

STREET ASSESSMENT.

STATEMENT OF THE CASE.

This is an action brought by Jas. S. Dyer, plaintiff, on a delinquent street assessment in San Francisco,-in which he obtained judgment. The appeal is taken by defendants, Joseph Brandenstein, Moses Rosenbaum et al, directly from the judgment. Judgment obtained was for $6,704.80 and interest $4,559.26, and costs $249.10, for grading done on Vallejo street, from Webster to Pierce. The first proceedings by Board of Supervisors was by a resolution of intention, on July 12, 1869, which was followed on July 26 by a resolution of the Board ordering the work to be done and directing the clerk to adver

tise for sealed proposals. But it is claimed that the Board never authorized any notice inviting sealed proposals, hence no lien could be created, and therefore the judgment was without authority of law. The judgment by District Court was on August 4, 1876.-Appeal taken November 24, 1876. That judgment now affirmed.

Remittitur forthwith.

Jarboe & Harrison, attorneys for defendants and appellant. J. M. Wood, attorney for plaintiff and respondent.

[No. 5927. Decided April 19, 1878.]

CLARK vs. TECOPAH SILVER MINING CO. Appeal from Eighteenth District Court, San Bernandino Co., W. T. MCNEALY, Judge.

DEFAULT OF NOTICE.

Horace Clark, plaintiff, brought action July 21st, 1877, to recover $3,972.14 for work done for defendant. Tried, by jury, October 3d, and verdict for plaintiff. Judgment for $3,512.14 entered, October 4, 1877. Stay of execution for 20 days granted, that defendant might serve statement on motion for new trial. Said statement filed October 24th. Motion was denied on ground that the notice of the motion (served Oetober 19th) was too late,—should have been within ten days from entry of judgment—the 20 days stay of execution not referring to the notice. Defendants appealed from the judgment and order on November 13, 1877. Judgment and order now affirmed. Remittitur to issue forthwith.

C. W. C. Rowell, attorney for plaintiff and respondent. A. C. Lawrence aud J. W. North, attorney for defendant and appellant.

[No. 5856.

Decided April 19th, 1878.]

ST. JOHN vs. MEYERSTEIN & CO.

Appeal from Eighteenth District Court, San Bernardino County.

W. T. MCNEALY, Judge.

BREACH OF CONTRACT.

Action commenced September 4th, 1876, by Stephen W. St. John, plaintiff, for a breach of contract against C. Meyerstein, who had agreed on October 15th, 1874, to furnish plaintiff freight and hauling for one year, for a ten-horse team, from Spadra, Los Angeles county, to Panamint, Inyo county, at a stipulated price.

Plaintiff accepted, and commenced work at once, and freight was furnished him till May 15th, 1875, when they failed to furnish further, and defendant was thrown out of employment.

Plaintiff was dealing with defendants, buying goods out of their store for his family use until March 2nd, 1876, when he gave them his note for $135.37, balance of said store account, which he subsequently paid.

Defendants claimed that all matters of difference were settled by the note; but plaintiff claimed that it had nothing to do with the freighting, and claimed $2,600.00 for the whole year. Case tried without jury, and judgment for plaintiff for $1,742.00. Defendants claimed that the contract, being for a whole year, and not being in writing, was void, for not being performed within a year. Appeal taken June 13th, 1877. Judgment now affirmed. Remittitur forthwith. J. W. Satterwhite and H. C. Rolfe, attorneys for defendants and appellant. C. W. C. Rowell, for plaintiff and respondent.

[No. 5705.-Decided April 19, 1878.]
BEAUDRY vs. LOS ANGELES.

Appea from Seventeenth District Court, Los Angeles County.
SEPULVEDA, Judge.

STREET ASSESSMENT.

Action, in tort, was brought by Prudent Beaudry, plaintiff, to recover $911.20 paid to the city tax collector under protest, as an assessment for improvements on Alameda street in the city of Los Angeles; on the ground that the City Council improperly accepted the work, to pay for which the assessment was made.

Before its acceptance the plaintiff objected that the specifications of the contract had not been complied with. But the proceedings otherwise being regular, a deduction was made by the City Council against the contractor. Subsequently the plaintiff was compelled to pay an additional $52.50, (also under protest), for improving the street intersection, which was added by amendment to the complaint.

Judgment was rendered for plaintiff for the last named amount, $52.50; subsequently it was modified by allowing plaintiff costs in the action. But plaintiff appealed on December 5th, 1877. Judgment now affirmed. WALLACE, C. J. expressing no opinion.

Howard, Brousseau & Howard, attorneys for plaintiff and appellant.

J. F. Godfrey for defendant and respondent.

Recent U. S. Land Decisions.

Case of John T. Farley.

HOMESTEAD ENTRY-PERSONAL ATTENDANCE.-In the Act of March 3d, 1877, -authorizing the pre-emptor to change his filing to a Homestead entry, with credit for the time he has resided on the land claimed-there is nothing which requires his personal attendance at the local office.

DEPARTMENT OF THE INTERIOR,

WASHINGTON, D. C., March 13th, 1878. )

To the Commissioner of the General Land Office-SIR: I have considered the appeal of John T. Farley, from your decision of November 19th, 1877, rejecting his application to change his pre-emption filing to a Homestead Entry, under the Act of Congress approved March 3, 1877, entitled, "An

« ForrigeFortsett »