Appeal from Superior Court, Fresno Coun- | supported by the testimony introduced, and ty: H. Z. Austin, Judge. Action by James A. Snook and B. H. Nelson against Allie Lorena Fielden. Judgment for plaintiffs, and defendant appeals. Affirmed. South & Ross, of Fresno, for appellant. L. N. Barber, of Fresno, for respondents. LENNON, P. J. The plaintiffs brought this action to foreclose a chattel mortgage executed by defendant as security for the payment of a promissory note given by her as first payment upon a contract for the purchase of 30 acres of land situated in Fresno county, belonging to the Fresno Farms Company, the assignor of plaintiffs. The foreclosure was resisted by the defendant, who set up in her answer that the contract in connection with which the mortgage was given was entered into by her only through and by means of the false representations of the plaintiffs' agents. After trial the court awarded plaintiffs judgment as prayed, and defendant appeals. The sole ground urged in support of the appeal is that certain findings of the court negativing the claims of defendant as to the falsity of the representations in question are not supported by the evidence. The representations alleged to be false by defendant's answer were that the land forming the subject of the contract was free from hardpan; that water in abundance was to be had upon it at all times under a water right appurtenant to the land; that the land was well adapted to the growing of vines, trees, and alfalfa; and that it was of the value of $150 per acre the price which defendant agreed to pay for it. The court, in its findings 4, 5, and 6-which are the findings attacked by the appellant as unsupported by the evidence declared that the land was in fact free from hardpan; that there was appurtenant to it a water supply sufficient for all reasonable and necessary irrigation and available for defendant's use; that at the time of making the representations complained of the plaintiffs believed upon reasonable grounds that the land was well adapted to the growing of vines, trees, and alfalfa and was of the value of $150 per acre. The court in the findings attacked also found that the defendant was experienced in farming and familiar with the value and character of land, and that she made an examination of this particular tract before entering into the contract; and, finally, that after entering into the contract she affirmed the same with full knowledge of all the facts concerning the truth or falsity of the representations in question. It is unnecessary to set out in detail the evidence upon which these findings of the court are based. An attentive study of the record has convinced us that they are amply that therefore there is no merit in this-the We concur: BEASLY, Judge pro tem.; STURTEVANT, Judge pro tem. (38 Cal. App. 98) Ex parte SILVA. (Cr. 818.) 1. CRIMINAL LAW 991(3) IRREGULAR - Where a court having jurisdiction of the degree burglary "in accordance with" Pen. Code, person and cause sentenced defendant for first § 461, thus leaving the term indefinite, when the law then in force required it to be definite, the judgment was not void, but frregular. ~~~1216(1) AMENDED 2. CRIMINAL LAW SENTENCE-WHEN TIME BEGINS TO RUN. Where an irregular judgment sentencing for crime is corrected by an amended judgment, the latter runs from the date of the former, giving the defendant the benefit of the time served. Application by Fernaz Silva for a writ of habeas corpus. Petitioner discharged. Fernaz Silva, in pro. per. U. S. Webb, Atty. Gen., and John H. Riordan, Deputy Atty. Gen., for respondent. PER CURIAM. The petitioner was convicted of an offense committed before the taking effect of the so-called Indeterminate Sentence Law. In passing judgment upon him, however, the court sentenced him to imprisonment, to use the language of the judgment, "in accordance with section 461, of the renal Code," which section provides that the punishment for burglary of the first degree, the offense of which the petitioner was convicted, should be imprisonment for not less than one year nor more than fifteen, thus leaving undetermined the duration of his confinement. Subsequently and after the decision of the Supreme Court in the case of Ex parte Lee, 171 Pac. 958, the petitioner was brought before the superior court and resentenced, his punishment this time being fixed at one year's imprisonment. At this time he had already served six months and six days; and if the second sentence dates from the making and entry of the first judg ment, as the petitioner contends, he has served the full term imposed when resentenced if account be taken of certain credits for good conduct to which it is admitted he is entitled, and is consequently entitled to be released. [1] It is conceded that the court had jurisdiction of the cause and of the person of the petitioner, so that it had power to pass upon him a judgment of imprisonment. Such judgment, therefore, was not void, although it did not, as according to the law in force For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes at that time it should have done, provide a definite term of incarceration. Nor has any appeal been taken from said judgment. A similar situation arose in the case above mentioned (Ex parte Lee), where it was held that in such a case a proper procedure to remedy the defect in the judgment was to return the person affected by it to the judge or court that had imposed the irregular sentence and have a proper sentence pronounced, the court finding warrant for such procedure under the terms of section 1493 of the Penal Code. [2] The question now arises whether the amended judgment should run from its date or the date of the one of which it is amendatory. In Clark v. Dunnam, 46 Cal. 205, it was held that, in the absence of a statute to the contrary, an amended judgment will be held to speak from the date of the original judgment. Whether that principle applies to a criminal case was considered in Burnett v. State, 14 Tex. 455, 65 Am. Dec. 131, where it was held that the rule for the construction of a judgment is the same in a criminal case as in a civil. And in People v. O'Brien, 4 Cal. App. 723, 89 Pac. 438, while this question was not directly discussed or considered, the decision in the case in effect applies the principle. We think it follows from the foregoing that the sentence imposed upon the petitioner by the amended judgment ran from the date upon which the original judgment was made and entered; and that the term of imprisonment imposed, deduction being made of the credits to which it is admitted the petitioner is entitled, has expired; and that the petitioner is entitled to be discharged from custody. The petitioner is discharged. (District Court of Appeal, First District, California. Aug. 26, 1918. Rehearing Denied by Supreme Court Oct. 23, 1918.) 1. BILLS AND NOTES 405-INDORSER'S LIABILITY-DEMAND FOR PAYMENT-STATUTE. Under Civ. Code, §§ 3131, 3141, where maker of note refuses payment on sole ground he is without funds, and makes no demand note be exhibited, its exhibition, as condition to charging indorser, is excused. 2. BILLS AND NOTES 405- DEMAND FOR PAYMENT-EXHIBITION OF INSTRUMENT. essary to excuse nonpresentment of instrument, from which indorser could draw inference note had been dishonored within statute. Appeal from Superior Court, Alameda County; Everett J. Brown, Judge. Action by G. A. Freudenberg against A. J. Lucas and J. G. Jackson. From judgment denying relief against defendant Jackson, plaintiff appeals. Reversed, with direction to enter judgment for plaintiff. Chas. E. Davis and Robert W. Harrison, both of San Francisco, for appellant. A. D. Plaw, of San Francisco, for respondent. PER CURIAM. This is an action upon a promissory note arising under the law as it stood prior to the adoption of the Negotiable Instrument Law. The case was tried upon an agreed statement of facts, which showed that on August 10, 1912, defendant Lucas executed and delivered to respondent Jackson his promissory note for $2,000 payable to his order one year from date. At the same time Lucas delivered to Jackson as security for the payment of the note a stock certificate of a certain corporation. Thereupon by mutual consent, the note and certificate were both delivered to one A. A. Curtis, with instructions to hold the same until the note matured unless sooner paid, and, if it were paid on the date of maturity, to deliver the note and stock certificate to the then owner of the note. Prior to maturity the note was indorsed by Jackson to one Faraday, and by Faraday to the present plaintiff. On the date of maturity plaintiff went to the office of Curtis to get the note, but was informed by those in charge that Curtis was out of town, that the note was in his safe, and that they did not know when Mr. Curtis would return. These statements were made in the presence of Lucas, of whom plaintiff then demanded payment of the note. Lucas made no demand upon plaintiff that he exhibit to him the note, but stated that he was unable to pay it because he had no funds, and that plaintiff would have to look to the indorsers for the payment thereof. In due time plaintiff served upon Jackson a notice the material part of which is as follows: "This is to notify you that on August 11th, 1913, payment of that certain promissory note (describing the note and indorsement) was dethereof was refused by said Lucas for the reamanded of said A. J. Lucas, but that payment son, as stated by him, that said Lucas has not sufficient funds to pay it, and that therefore, as holder of said note I now look to you for the payment thereof. Yours, etc., G. A. Freudenberg." Where exhibition of note to maker in demanding payment was excused because maker stated he was without funds, it was not necessary, to make demand good to charge indorser, Jackson having refused to pay the note, that holder should have possession of instrument with ability to exhibit it on demand; it plaintiff brought this action against Lucas, being in nearby safe in custody of holder's as maker, and Jackson, as indorser, and has agent, who was temporarily out of town. taken this appeal from that portion of the 3. BILLS AND NOTES 419-INDORSER'S LIA-judgment denying him relief against respondBILITY-NOTICE OF DISHonor. Notice from holder to indorser of dishonor ent Jackson. of note held to set forth facts, as to demand Counsel for respondent, in support of the for payment and refusal for want of funds, nec-decision of the lower court, contends that Jackson was discharged from his liability as [to make the validity of plaintiff's demand indorser for two reasons: First, because turn upon the wholly irrelevant question of plaintiff did not have the actual and imme- his ability or inability to open his agent's diate physical possession of the note at the safe. time he demanded payment of the maker; and, second, because the notice did not set forth either presentment of the note or the fact of nonpresentment, with such facts as might excuse presentment. We are of the opinion, however, that neither of these two contentions can be maintained, for the reasons hereinafter stated. [3] The notice substantially informed respondent of the dishonor of the instrument, as the demand for payment, and the refusal thereof for the assigned reason of want of funds, were the two facts from which nonpresentment was excused; and the notice fully advised respondent of all the necessary facts from which he could draw the legal inference The following are the provisions of the that the note had been dishonored within Code material to the discussion: "Sec. 3131. Presentment of a negotiable instrument for payment, when necessary, must be made as follows: * * "Sec. 3141. A negotiable instrument is dishonored, when it is either not paid, or not accepted, according to its tenor, on presentment for the purpose, or without presentment where that is excused." "Sec. 3143. A notice of dishonor may be given in any form which describes the instrument with reasonable certainty, and substantially informs the party receiving it that the instrument has been dishonored." [1, 2] While there is no statutory expression in California as to what will excuse the presentment of a note, sections 3131 and 3141 above quoted clearly recognize the commonlaw rule that presentment under certain circumstances is unnecessary and excused. And it is admitted by respondent that where, as in the case at bar, the maker refuses payment on the sole ground that he is without funds to pay, and makes no demand that the note be exhibited to him, actual exhibition of the note to him is excused. But respondent claims that, even though exhibition of the note was excused, plaintir must have had the actual physical possession thereof, with the ability to exhibit it to Lucas had he demanded it, in order to constitute a valid demand. The claim is highly technical and, in our opinion, without any support in logic. When, on the date of the note's maturity, Lucas and plaintiff were in Curtis' office, the note was in the same room with them, in the safe where the depository chosen by Lucas and respondent had put it, and it was in the eyes of the law in plaintiff's possession, for it cannot be disputed that Curtis was on that day plaintiff's agent, and his possession was that of his principal. If exhibition of the note had been demanded, it might have taken some time to find Mr. Curtis and to get the safe open; but there was no legal impediment to the production of the note by plaintiff any more than if plaintiff had brought it to Lucas in a strong box the key of which plaintiff had inadvertently left at his home in another town. In either case the law would excuse a reasonable delay in physically producing the note, where such production was demanded; and where, as in the instant case, no such demand was made, it would be carrying technicality to a ridiculous extreme the meaning of the statute. Judgment reversed, with direction to the lower court to enter judgment in favor of plaintiff for the unpaid balance of the note as appears from the agreed statement of facts. A declaration of a homestead under St. 1860, p. 311, made by a married person, must state that he is married, and a statement merely that he is the head of a family is insufficient. Appeal from Superior Court, Mendocino County; J. Q. White, Judge. Action by Alice Morand against Jennie Hoyerdahl and another. Judgment for plaintiff, and defendants appeal. Affirmed. Mannon & Mannon, of Ukiah, for appellants. J. K. Peirsol, of Ft. Bragg, and G. E. Redwine, of Ukiah, for respondent. LENNON, P. J. Plaintiff sought a judgment quieting her title to an undivided onehalf interest in certain real property situate in Mendocino county. The defendants, Jennie Hoyerdahl and C. M. Mannon, appeared and answered, alleging that the defendant Hoyerdahl is the owner of the whole of the property described in the complaint, that defendant Mannon has a first mortgage on all of Mrs. Hoyerdahl's interest, and that the plaintiff has no right whatever in the property. At the trial the parties stipulated to the effect that if a certain declaration of homestead, recorded by one Louis Morand July 26, 1872, was sufficient in form, the title to all of the real property in question belongs to defendant Hoyerdahl subject to a mortgage to defendant Mannon, but that if the said declaration is insufficient in form the title is vested an undivided one half in plaintiff and the other half in Hoyerdahl, subject to the mortgage before mentioned. It was also stipulated by the parties that Louis Morand was married at the time of the execution of the declaration of homestead in question. The lower court held the declaration of homestead insufficient, in that it failed to state that the declarant was married, and accordingly awarded an undivided one-half of the property to the plaintiff. From this judgment defendants appeal. The declaration of homestead contained the statement: "And I do hereby declare in writing that I am the head of a family, that I have selected said property as a homestead and that it is my intention to use and claim the same as a homestead, and that I am at the time of making this declaration residing with my family and the persons under my care and maintenance on the premises hereinafore described." It is contended that the statement in the declaration of homestead, "I am the head of a family," is a sufficient compliance with the statute. The statute in force at the time of the making and filing of the declaration reads as follows: "Said selection shall be made by either the husband or wife or both of them, or other head of a family, declaring their intention, in writing, to claim the same as a homestead. Said declaration shall state that they or either of them, are married, or if not married, that he or she is the head of the family; that they or either of them, as the case may be, are, at the time of making such declaration, residing with their family or the person under their care and maintenance on the premises, particularly describing said premises, and that it is their intention to use and claim the same as a home stead." Stats. 1860, p. 311. * The statute names two classes of persons who may select a homestead, (1) the husband and wife or either of them, or (2) any other person who is the head of a family, and the statute makes the requirements as to the contents of the declaration of homestead depend upon which of these two classes the claimant belongs. In this connection it is to be noted that the language of the statute is in the disjunctive. To hold, as contended by appellants, that the requirement is in the alternative and that the statute should be construed to read that the declaration shall state "that they are married or that he or she is the head of a family," would be to reject that portion of the statute "that they or either of them are married, or if unmarried," as surplusage. Courts are not inclined to adopt a construction of a statute which renders some part of it meaningless and of no effect. It is presumed that the Legislature in making this statute intended, as the language imports, that a married person in selecting a homestead should state in the declaration that he is married. The statement in the declaration of homestead, "I am the head of a family," is not a statement that the declarant was married, and, as there was no statement in the declaration which would tend to show that fact, the requirement of the statute has not been met. Judgment affirmed. We concur: BEASLY, Judge pro tem.; STURTEVANT, Judge pro tem. SENTENCE 3. CRIMINAL LAW 977(3) TIME OF IMPOSITION. Under Pen. Code, § 1202, as to the time of pronouncing sentence after conviction, where probation is applied for but is finally denied and a new trial thereupon regularly demanded, the court may extend the time for the pronounce ment of sentence for a reasonable number of days. 4. STATUTES 87 LOCAL AND SPECIAL LAWS-TIME OF PRONOUNCING SENTENCE. Pen. Code, § 1202, as to the time to which pronouncement of sentence may be continued, providing that if it is not so pronounced accused shall be entitled to a new trial, is not violative of Const. art. 4, § 25, as a local or special law. Appeal from Superior Court, Merced County; E. N. Rector, Judge. Napoleon Lamattina was convicted of assault with a deadly weapon, and, from the judgment and an order denying new trial, he appeals. Affirmed. On motion for rehearing. Rehearing denied. L. J. Schino, of Merced, and Terry W. Ward, for appellant. U. S. Webb, Atty. Gen., and J. Chas. Jones, Deputy Atty. Gen., for the People. HART, J. The defendant was charged by information filed in the superior court of Merced county by the district attorney of said county with the crime of an assault with a deadly weapon with intent to commit murder. He was convicted of the crime of assault with a deadly weapon, and prosecutes this appeal from the judgment and the order denying him a new trial. The sole point upon which the defendant relies for a reversal is that judgment of sentence was not pronounced within the time prescribed by the statute, and that therefore, by the terms of the statute, it was the imperative duty of the trial court to grant him a new trial. The record shows that the verdict of the jury was rendered on the 13th day of Septem upon which the verdict was rendered to the day upon which the defendant was sentenced, 52 days elapsed. Section 1191 of the Penal Code reads as follows: ber, 1917, at which time the court fixed Monday, the 17th of September, as the time for pronouncing judgment. On the day last named, the defendant made an application for probation, and thereupon the court ordered that the matter of probation be referred to "After a plea or verdict of guilty, or after a the probation officer of the county. The dis- verdict against the defendant on a plea of trict attorney then stated that the probation former conviction or acquittal, or once in jeopardy, the court must appoint a time for proofficer thought he would require approximate-nouncing judgment, which must not be less than ly three weeks within which to make a two, nor more than five days after the verdict proper investigation and file his report, and or plea of guilty; provided, however, that the suggested that the matter of pronouncing court may extend the time not more than ten sentence be postponed three weeks from that any motion for a new trial, or in arrest of days for the purpose of hearing or determining day. The court thereupon continued the judgment; and provided, further, that the court sentencing of the defendant to October 8, may extend the time not more than twenty days 1917, which would be 20 days after the ver- in any case where the question of probation is dict was rendered and recorded. On October sand two hundred and three of this Code; providconsidered in accordance with section one thou8th the probation officer reported that he was ed, however, that upon the request of the defendunable to make a final report at that time ant such time may be further extended not more and asked for two weeks' additional time than ninety days additional. If in the opinion within which to do so. The court replied of the court there is a reasonable ground for believing a defendant insane, the court may extend that an order continuing the time for the the time of pronouncing sentence until the quesfiling of the report of the probation officer tion of insanity has been heard and determined, would not be made unless the defendant him- as provided in chapter six, title ten, part two, of self requested it, and counsel for defendant this Code." consented to the making of an order giving the additional time requested by the probation officer. The court, however, insisted that the request should come directly from the defendant himself and thereupon asked the latter, addressing him by name, if he desired "to give Mr. Bilman, the probation officer, two weeks more to inquire into your case as to whether he will give you probation." To this question, the defendant replied, speaking through an interpreter, that he "would like to have a shorter time, to get it as soon as possible," whereupon the court said: "Now, the question is, before I am going to grant it, it must be with his consent, or else he will take the judgment right now, to-day. Just state to him I will make an order sending him to San Quentin to-day unless he consents to it." Section 1202 of said Code provides: "If no sufficient cause is alleged or appears to the court at the time fixed for pronouncing and ninety-one of this Code,, why judgment judgment, as provided in section eleven hundred should not be pronounced, it must thereupon be rendered; and if not rendered or pronounced within the time so fixed or to which it is conhundred and ninety-one of this Code, then the tinued under the provisions of section eleven defendant shall be entitled to a new trial. If the court shall refuse to hear a defendant's motion for a new trial or when made shall neglect to determine such motion within the time fixed for pronouncing judgment, or within the time to which the same is continued under the provisions of section eleven hundred and ninety-one of this Code then the defendant shall be entitled to a new trial." As stated, the contention is that, the pronouncing of judgment of sentence having been postponed beyond the time within which section 1191 provides that sentence shall be pronounced, the defendant was entitled to favorable action by the trial court on his motion for a new trial. The following cases are cited in support of the proposition: Rankin v. Superior Court, 157 Cal. 189, 106 Pac. 718; People v. Polich, 25 Cal. App. 464, 143 Pac. 1065; People v. Okomoto, 26 Cal. App. 568, 147 Pac. 598; People v. Winner, 31 Cal. App. 352, 160 Pac. 689; People v. Gilbreth, 33 Cal. App. 23, 164 Pac. 18. This declaration by the court was intérpreted to the defendant, who thereupon expressed his consent to the order giving the probation officer the further time requested. The order extending the time was accordingly made and the probation officer reported, on the 22d day of October, 1917 (within the additional time granted him), against the application of the defendant for probation. On the same day, the defendant made a motion for a new trial, one of the grounds being newly discovered evidence, and asked In the Rankin Case, the Supreme Court for a continuance of ten days to enable him construed sections 1191 and 1202 as mandato file affidavits in support of his motion on tory in their terms, and held that where sensaid ground. The matter of hearing the tence is not pronounced in a criminal case motion was accordingly continued until the within the time prescribed by section 1191, 5th day of November, 1917, at which time and the defendant applies for a new trial on the motion for a new trial was renewed upon that ground, it is the imperative legal duty of the additional ground "that the time for the trial court to grant the application. The pronouncing sentence has been continued other cases named necessarily adopted the beyond the time specified by the statute." | construction thus placed upon said sections. As already stated, the motion was denied and the defendant sentenced to be confined in the state prison at San Quentin. It will Originally, section 1191 limited the time within which sentence might be imposed, where the question of probation is consider |