Imágenes de páginas
PDF
EPUB

MINES AND MINING (Continued). • 2. MINING LAW — LOCATION BY ASSOCIATION OF PERSONS — ASSESS

MENT WORK.-A placer mining claim containing one hundred and thirty acres, and which is located by an association of seven persons as a single claim, initiated by a single notice of location, is but one location and the only assessment work required to be done is that for one location.-Reeder v. Mills, 581.

[blocks in formation]

OF

MORTGAGES. 1. PRIOR DEED OF TRUST — EVIDENCE – FINDINGS.-In this action to

foreclose a mortgage on real property, the evidence was sufficient to support the findings of the trial court that at the time of the making and delivery of the deed of trust in favor of the predecessor of the defendant bank, plaintiff, for a valuable consideration, entered into an agreement with said predecessor that he would waive and relinquish the priority of his mortgage over said deed of trust, that said deed of trust should be a prior and superior lien upon the real property in question, and that the lien of plaintiff's mortgage should be second or inferior to said deed of

trust. - Albertson v. Westlake, 305. 2. FORECLOSURE- (PLEADING-DESCRIPTION PROPERTY_VARIANCE

JUDGMENT.—In an action to foreclose a mortgage, an allega. tion in the complaint to the effect that the water rights connected with the mortgaged premises were exchanged for certain water stock and that such stock is covered by the mortgage is not surplusage, notwithstanding the mortgage, which is annexed to the complaint as an exhibit, does not mention such stock, but refers only to the premises and the water rights; and such complaint is sufficient, as against a general demurrer, to support a judgment declaring a lien upon both the land and such water MORTGAGES (Continued). 4. DEFAULT — PRAYER—JUDGMENT.—Although the judgment was by

stock.-Kennard v. Binney, 732. 3. WATER STOCK APPURTENANT TO LAND - APPEAL - RECORD -- PRE

SUMPTION. Where the record on appeal in such action does not contain a copy of the shares of stock, and there is nothing in the record to indicate whether they were issued in the ordinary manner prescribed for the issuance of shares of stock by corporations, in which event they would be personal property, or whether they were issued in compliance with the provisions of section 324 of the Civil Code, in which event they would becoine appurtenant to the land, it must be presumed, in support of the judgment of the trial court declaring a lien upon both the land and the stock, that such stock was issued in such a manner that it became ap. purtenant to the land.-Id.

default, the water stock having been appurtenant to the land, the trial court was authorized to enter a judgment for the foreclosure of the lien upon both the land and the stock under the prayer of the complaint asking for a sale of the "land and premises."-10.

See Agency, 3; Contracts, 20, 21; Husband and Wife, 1,

MOTIVE. See Criminal Law, 18.

MOTOR VEHICLE ACT. See Criminal Law, 30; Liens, 5.

MUNICIPAL CORPORATIONS. 1. MUNICIPAL AFFAIRS—FREEHOLDERS' CHARTERS-LEGISLATIVE POWERS.

Since the “municipal affairs” amendment of 1914 to the state constitution, the powers of such cities as have brought themselves within the condition of the amendments are not derired from the legislature, but from a freeholders' charter directly provided for by the constitution; and such cities in their several charters may make and enforce all laws and regulations in respect to municipal affairs subject only to the restrictions and limitations provided in their several charters, and in respect to other matters they shall be subject to and controlled by the general laws.-Bank v. Bell,

320. 2. ESTABLISHMENT OF MUNICIPAL MARKET.—The establishment, main.

tenance, equipment, ownership, and operation of a municipal

market is a municipal affair and a municipal purpose.—Id. 3. BERKELEY Right ESTABLISH

MAINTAIN MUNICIPAL MARKET.—The city of Berkeley, under the provisions of its charter, has plenary power to acquire, establish, maintain, equip, own, and operate a municipal market, and also, acting through its council, power to take such legislative action as it may deem necessary and

advisable in the premises.—Id. 4. SAN FRANCISCO — CIVIL SERVICE-STRIKING NAMES FROM LISTS.

Judgment affirmed upon authority of Gilbert v. Civil Service Com., 61 Cal. App. 459.-Doon v. Walcott, 797.

See Mandamus, 1; Public Utilities, 1.

ΤΟ

AND

MURDER. See Criminal Law, 6, 7, 25, 44, 45, 81.

NAMES. See Contracts, 19.

NEGLIGENCE. 1. PLEADING — ACTION FOR WATER SOLD AND DELIVEREDDAMAGE TO

CROPS—CROSS-COMPLAINT.-In an action by a mutual water com

NEGLIGENCE (Continued).

pany to recover payment for water sold and delivered, a crosscomplaint for damages for the overflowing of defendants' lands by reason of the wrongful and negligent acts of plaintiff in per. mitting its canals and distributing system to become choked with weeds, grasses, silt, and deposits is sufficient as against a general demurrer, where it is alleged in such cross-complaint that the overflowing waters "are the same waters which plaintiff refers

to in its complaint.”—Imperial Water Co. No. 4 v. Meserve, 603. 2. UNCERTAINTY-DEMURRERS.—The cross-complaint in such action is

not demurrable for indefiniteness or uncertainty merely because it does not state the precise times when plaintiff negligently permitted its canals to become filled with weeds and growths or when it undertook to carry water through its canals and deliver it to defendants, those being matters which rest peculiarly within the knowledge of plaintiff; neither is such cross-complaint indefinite and uncertain because the lands to which plaintiff under

took to carry the water are not specifically described.-Id. 3. DAMAGES-Loss or PROFITS.-Such cross-complaint having alleged

that the overflowing of defendants' land and the “scalding” of the alfalfa damaged those crops in

amount equal specified sum of money, it was not indefinite and uncertain because it did not allege the precise amount of profit defendants would have realized had the land not been wrongfully overflowed.

Id. 4. INJURY TO TAXICAB PASSENGER-LIABILITY OF OWNER-EVIDENCE.

In this action for damages for personal injuries sustained by plaintiff while riding as a passenger in a taxicab, due to the negligence of the driver, the evidence having shown that the act complained of was done while the driver was at liberty from his service and pursuing his own ends exclusively, the defendant owner of the taxicab could not be held responsible even though he af. forded the means without which the accident might not have occurred.-Slater v. Friedman, 668.

See Employer and Employee, 1; Sales, 3.

an

to

a

NEGOTIABLE INSTRUMENTS. See Promissory Notes.

NEWSPAPERS. 1. GENERAL CIRCULATION-RES ADJUDICATA-ANNULMENT OF ORDER

PROOF.—After a superior court, in a proceeding duly instituted and prosecuted for that purpose, has entered an order adjudging a given publication to be a newspaper of general circulation, and that judgment has become final, the status of such publication is res ad judicata, and the sufficiency of the evidence to justify such determination may not be inquired into in a subsequent proceedNEWSPAPERS (Continued).

ing, under section 4462 of the Political Code, to annul such order, but the burden is upon the petitioner in the latter proceeding to prove that the paper has "ceased” to be one of general circulation.

In re Simpson, 549. 2. CHANGED CONDITIONS—PROOF.—To prove that a paper has "ceased"

to be one of general circulation, the petitioner must prove such a change of conditions as would show the paper to be no longer what it was in that regard at the time it was adjudicated to be a

newspaper of general circulation.-10. 3. RES ADJUDICATA PARTIES.—Where the superior court, in a pro

ceeding duly instituted and prosecuted for that purpose, has entered an order adjudging a given publication to be a newspaper of general circulation, and that judgment has become final, such determination is binding, not only upon the parties to such pro

ceeding but upon all persong.-Id. 4. EVIDENCE CHANGE IN POPULATION AND SUBSCRIPTION LIST.-The

fact that the population of the city in which the paper is published and distributed has increased, and that the number of subscribers to the paper has relatively decreased, is not sufficient proof in and of itself to compel a finding that the paper has

"ceased” to be one of general circulation.-Id. 5. JUDGMENT APPEAL.—Until a city has become so large that the

number of people living in it precludes the conclusion that the paper, with a subscription list of 194 subscribers, can be one of general circulation, the decision of the trial court adjudging that its circulation is general will not be disturbed on appeal, where other conditions appear to have remained unchanged since the

first decree was entered.-Id. 6. RES ADJUDICATA - PLEADING.--In a proceeding under section 4462

of the Political Code to annul an order previously made determining a given publication to be a newspaper of general circulation, no plea of res adjudicata need be pleaded by the respondent, but the petitioner must avoid the effect of the judgment shown by his own pleading to exist.--Id.

NEW TRIAL. See Criminal Law, 29; Specific Performance, 2.

NONSUIT. See Quieting Title, 9.

NOTICE. See Fire Insurance, 4, 5; Pleading, 10.

OFFSET. See Judgments, 1; Leases, 5.

OPEN BOOK ACCOUNT. See Corporations, 7, 8.

OPTION. 1. EXERCISE OF_TIME.—Where an option to purchase real property

expressly limits the time within which it might be exercised, the option must be exercised within that time, otherwise the right is gone, notwithstanding time is not expressly made of the essence of

the option.-Wightman v. Hall, 632. 2. EXTENSION BY ONE CO-OWNER SPECIFIC PERFORMANCE.-The op

tion not having been exercised within the time specified therein, and the extension of the option having been signed by only one of the co-owners of the property, the other co-owners not having ratified such extension or committed any acts constituting an estoppel to deny the same, the trial court properly denied specific performance as to all the co-owners.-Id.

ORDERS. See Judgments, 1, 2.

ORDINANCES. See Evidence, 7; Intoxicating Liquors, 1; Mandamus,

1; Street Law, 5, 6.

PARENT AND CHILD. See Criminal Law, 50.

PAROL LICENSE. See Licenses, 1.

PARTIES. See Contracts, 17; Pleading, 5.

PARTITION.
COUNSEL FEES - DECREE—ALLOWANCE TO PARTIES TO ACTION.-In an

action for partition, a court has no authority to provide in the
decree for the allowance to the attorneys of fees for their services,
and such a provision gives the attorneys no personal interest in the
decree or right to be heard in any proceeding to set it aside where
they appear only on their own behalf, since section 796 of the
Code of Civil Procedure, authorizing the allowance of counsel fees
in partition actions, contemplates that the allowance should run
in favor of the parties to the action.-Chavez v. Scully, 6.

OF

ON

PARTNERSHIP. 1. TERMINATION SETTLEMENT ACCOUNTS ACTION Notes

GIVEN - ERRORS - FRAUD-- MISTAKES-ACCOUNTING DE Novo.--In an action on promissory notes given by one partner to another as representing the actual amount estimated by them to be due and owing to the latter upon the termination of the partnership and the settlement of their accounts, which notes were thereafter indorsed and delivered to the plaintiff bank for a valuable consideration, it is error to undertake to restate the whole of the accounts between the former partners, de novo, there being no

« AnteriorContinuar »