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[Filed March 28, 1878.) THE PEOPLE vs. WONG SHU SHUT. CRIMINAL LAW-MURDER. - Record must show evidence of death of party al.
leged to have been killed. The facts appear in the opinion.
OPINION BY THE COURT.
The defendant was convicted of the crime of murder in the first degree, and moved for a new trial on the ground, amongst others, that the verdict was contrary to the evidence, and the motion having been denied, he brings this appeal.
Upon a careful examination of the record, no evidence is found tending to show the death of the person alleged to have been killed by the prisoner. The practice to be pursued by the District Attorney in the settlement of bills of exceptions in criminal cases where a motion of this character has been denied, was pointed out in People vs. Fisher (51 Cal., 319), and upon the authority of that case the judgment and order denying a new trial must be reversed and the case remanded for a new trial, and it is so ordered.
NISBĘT vs. NASH.
an uncertainty must follow—if not dissolved it is incumbent on the Court to find whether plaintiff is entitled to a decree of dissolutionin the event of which an accountability should also be ordered.
OPINION BY THE COURT. The Court erred in finding that plaintiff and defendants were not mining partners. They were.
The Court should have found, whether or not the partnership had been dissolved.
If on a re-trial, the District Court shall find that the partnership has been dissolved, the decree must be for an accounting. If the Court shall find that it has not been dissolved, it will become its duty to determine, whether or not, plaintiff is entitled to a decree of dissolution; and if it shall find that plaintiff is entitled to such decree, the decree should also provide for an accounting.
It is not necessary to determine, whether John Nisbet is a necessary party to this action or any accounting.
Judgment and orders denying new trial reversed and cause remanded for a new trial-each party to pay one-half of the costs of these appeals.
BARBER vs. BARNES.
property to pay creditors of the same, does not constitute a dissolution of partnership—the subsequent bringing an action to recover a debt due the firm tends to rebut any inference of such dissolution.
OPINION BY THE COURT. The Court granted a non-suit on the ground that the cause of action was barred by section 339, Code of Civil Procedure. The seizure of the partnership property under the attachment mentioned in the record, and the application of the property to the payment of the creditors of the firm, and the fact that the plaintiff and defendant “did not do business after the attachment was levied” did not of themselves necessarily and conclusively operate as a dissolution of the partnership. The commencement of the action by the plaintiff and defendant against Hunt & Anderson to recover a debt alleged to be due to the firm the action not yet having been determined—tends to rebut any inference of the dissolution of the partnership arising from the facts above stated. It is unnecessary to decide whether the statute will run against a bill for an accounting from the time of the dissolution; nor if it does not run what section of the Code would be applicable to such a case.
Judgment and order reversed and cause remanded for a new trial. Remittitur forthwith.
STATEMENT OF FACTS. Plaintiff had judgment for $500 damages and injunction a prayed for. Judgment was reversed, on appeal,--the cas being remanded back with instructions to find if it could be done from evidence taken on the trial, on all the material issues, and if not to try the case anew. Pending appeal there was a change of Judges in the District,—the new Judge upon the retrial of the case made entire new findings, and rendering judgment for defendants, dismissed the case at plaintiff's costs.
E. V. Spencer, attorney for plaintiff and appellant.
P. 0. Hundley and J. S. Chapman attorneys for defendant and respondent.
OPINION BY THE COURT. The record does not contain a copy of the undertaking on appeal, nor does the certificate of the Clerk, as far as it relates to the undertaking on appeal, conform to section 953 of the Code of Civil Procedure.
Appeal dismissed, without prejudice to another appeal.
Notes of Unwritten Opinions.
In the case of Wallace vs. Miller, in our Supreme Court, the plaintiff complains of Henry Miller, George H. Moore, E. A. Davidson, John Paine and Oscar Reeves, defendants, and for cause of action alleges ownership in fee and actual possession of an undivided interest of seven hundred and fifty acres in Rancho los Animas, in Santa Clara County, equal to one twenty-eighth part of said rancho, from which, on the 28th of December, 1876, he was unlawfully ousted by said defendants, to which defendants made general denial. The Court below found that plaintiff was the owner in fee to said seven hundred and fifty acres described in his complaint, and entitled to the possession of the land. It was ordered that the judgment herein be and the same is hereby modified by striking therefrom wherever they occur, the words “one twenty-eighth part,” and inserting in lieu thereof the words "seven hundred and fifty twenty one thousand three huudred and sevenths ;" and in other respects the judgment and order denying the defendant's motion for a new trial are affirmed.
In the case of Read vs. Mahoney, the appellant contends
that there was no error as alleged in the bill of exceptions in the admission of the plaintiff's patent in evidence.
The ground of the objection was that the land was within the boundaries of the city and county of San Francisco, and therefore not subject to pre-emption, and that it was issued without authority of law and is void. The patent, which is regular in form, recites that Frances Read purchased the land and made full payment. The patent was valid, and even if it. were not, defendant was not in position to question it, nor was that in issue. The Court ordered a reargument.
In the case of Strother vs. Diefendorff, the defendant and appellant deemed it important on the trial to show the bo indaries of the “ Casement Tract," as the same existed from and after March 27, 1854, offering and producing evidence to show what was the back line of said tract--which was admitted, subject to the objections of relevancy by plaintiff's counsel. In the consideracion of the case the Court below held that such testimony was irrelevant, on the ground that the Casement tract of the Jimeno grant must be confined to the latter as located and limited in the final survey as conveyed in the patent of the grant, to which ruling defendant excepted, claiming that such evidence being excluded, there remained no evidence showing what was the rear line of said Casement tract,—and that judgment should have been made for the de. fendant.
OMITTED.-Owing to the large number of decisions lately filed, much valuable matter is crowded out of this number, including our “ Digest” of former opinions. Our Supreme Court has showered its decisions—all at oave.
SESSIONS OF THE SUPREME COURT.-The law passed at the last session of the Legislature provides that after October next the January and July terms of the Supreme Conrt shall be held in San Francisco,—the April and October terms in
Los Angeles, and the May and November terms in Sacramento. The April term of the Court under the old law commences at Sacramento on Monday next, the 8th inst. See calendar on cover pages.
SUPREME COURT CLERK'S FEES.-An amendment to the Political Code, passed by the last Legislature, provides that in addition to the fees heretofore charged by the Clerk of the Supreme Court, there will be a fee of $5 for filing petitions for rehearing and $1 for filing orders extending the time of transcripts on appeal,—the amendment to take effect immediately.
DEATH OF A DISTRICT JUDGE.—News was received in this city on Thursday night, that Warren T. Sexton, Judge of the Second Judicial District, died at his residence in Oroville at 4 o'clock the same afternoon. He had been ill for several months but had been able to hold Court up to the 16th of March. He was universally respected, and such was the confidence reposed in him by the people of his District that he had held the position of District Judge with the exception of a single term since 1856.
Recent U. S. Land Decisions.
WOMEN AS Locators. --The law makes no distinction in the matter of locating inining claims on account of sex.
DEPARTMENT OF THE INTERIOR.
GENERAL LAND OFFICE,
WASHINGTON, D. C., Nov. 13, 1877. Register and Receirer, Eareka, Nevada :
GENTLEMEN :-Referring to your letter of the 14th of September last, I have to state that section 2319 of the Revised Statutes of the United States declares that the mineral lands of the United States shall be free and open to exploration and purchase “by citizens of the United States, and those who have declared their intention to become such, urder regulations prescribed by law." The law makes no distinction in this regard on account of sex.
Mining claims may be located and held by either males or females upon compliance with law. Very respectfully, your ob't srv't.
--Copp's Land Owner for March. J. A. WILLIAMSON, Commissioner.
OUR column of Interior Court Notes was prepared this week, but we are compelled to leave it out by the pressure of recent decisions. We intend to make this department a valuable one and shall only omit it for more important matters.