point, we are still not convinced that the de- | murrer within five days thereafter. On the fendant established its freedom from negligence by a preponderance of the evidence. The judgment is affirmed. 28th day of August, 1916, no special demurrer or answer having been filed, the default of the defendant Sullivan Tractor Company, a corporation, was entered by the clerk upon We concur: LENNON, P. J.; STURTE- the request of the plaintiff. On the 8th day VANT, Judge pro tem. Appeal from Superior Court, Mariposa County; J. J. Trabucco, Judge. Action by W. H. Wright against the Yosemite Transportation Company. Judgment for plaintiff, and defendant appeals. Affirmed. See, also, 28 Cal. App. 279, 152 Pac. 54. Myrick & Deering and James Walter Scott, all of San Francisco, and F. P. Tuttle, of Merced, for appellant. R. C. Gortner, of Los Angeles, and John A. Wall, of Mariposa, for respondent. PER CURIAM. This case involves the same question as the case bearing the same title and numbered in this court No. 2516 (175 Pac. 905), this day decided. For the reasons given in the opinion affirming the judgment in that case, the judgment in this case is also affirmed. (38 Cal. App. 268) of September the clerk, upon plaintiff's request, entered the default of the remaining defendants, and on the same day the court ordered judgment as prayed against all of the defendants. Thereafter, and on the 11th day of September, 1916, the defendants gave notice that they would move to set aside their default, and the judgment entered pursuant thereto, under section 473 of the Code of Civil Procedure, and upon the ground that these proceedings were taken against them by reason of excusable neglect. They supported this notice, and a motion subsequently made and granted pursuant thereto, by certain affidavits. One of these affidavits was by Hon. Milton T. Farmer, the judge who overruled the general demurrer, in which he stated that, had he been requested, at the time the demurrer was overruled, to grant the defendants time in which to answer he would have granted them at least ten days for such purpose. The other material affidavit is by Mr. De Lancey C. Smith. Mr. Smith deposes that his failure to ask for time in which to answer was due entirely to inadvertence and excusable neglect, by reason of the fact that at BRANDON V. SULLIVAN TRACTOR CO. the time the general demurrer was overruled et al. (Civ. 2452.) (District Court of Appeal, First District, California. Sept. 24, 1918.) JUDGMENT 143(12)—OPENING DEFAULT GROUNDS. Where it appears that defendant's attorney labored under mistake of law as to the time necessary to file an answer after a general demurrer had been overruled, and the delay was only for two weeks, it was not error to open a judgment taken by default. Appeal from Superior Court, Alameda County; William H. Waste, Judge. Action by Zar A. Brandon against the Sullivan Tractor Company and others. From an order setting aside a default judgment, plaintiff appeals. Affirmed. Ransey Probasco, of Oakland, and Sapiro & Ehrlich, of San Francisco, for appellant. De Lancey C. Smith, of Oakland, for respondents. STURTEVANT, Judge pro tem. This is an appeal from an order of the superior court of Alameda county, setting aside a default judgment which had been entered against the respondents, and permitting them to file an answer. The plaintiff filed a complaint against the defendants, and on August 17, 1916, the superior court overruled a general demurrer to this complaint, but in doing so granted the defendants permission to file a special de it was his intention to demur specially, as suggested by the court, and that, if he had done so, the necessity for filing an answer would not have arisen for some time thereafter; that this neglect of his arose from the fact that it is the common practice and usage in the superior court of Alameda county for the prevailing party at the hearing of the demurrer to serve upon the adverse party notice of the ruling of that court upon such demurrer, and the party served with such notice computes his time to appear next from the service of such notice, and in accordance with this practice he had a conversation with Ransey Probasco, one of the attorneys for the plaintiff, on or about the 26th day of August, during which he discussed with Probasco the fact that up to the time of that conversation plaintiff had not served the defendants with notice of the court's ruling at the hearing of the demurrer held on the 17th of August, and that Probasco during that conversation stated that he thought notice had been served, and, if it had not been, he would serve it immediately. In this affidavit, Mr. Smith admits that he was negligent in not asking the court for time in which to answer, if he should conclude not to file the special demurrer suggested, and states in addition to the foregoing facts that it was due to his excusable neglect in not so requesting the court for time for that purpose, and that he overlooked the necessity of answering within ten days. The lower court, after hearing the motion, granted it, and the plaintiff appeals from this order, on the ground that the neglect of Mr. Smith was inexcusable under the authorities. The appellant claims that the trial court erred in making its order vacating the default, and the appellant relies in this behalf on the rule as stated in Thornton v. Borland, 12 Cal. 439; Smith v. Yreka Co., 14 Cal. 201; Williamson v. Joyce, 140 Cal. 669, 74 Pac. 290; Barron v. Deleval, 58 Cal. 95; Wall v. Heald, 95 Cal. 365, 30 Pac. 551; Bell v. Thompson, 8 Cal. App. 483, 97 Pac. 158; Estate of Keating, 158 Cal. 109, 110 Pac. 109. Those cases were based on facts that are not closely in point. We think the facts in this case bring it within the rule as stated in O'Brien v. Leach, 139 Cal. 220, 72 Pac. 1004, 96 Am. St. Rep. 105; Berri v. Rogero, 168 Cal. 736, 145 Pac. 95; Hagenkamp v. Equitable, 29 Cal. App. 713, 156 Pac. 520. The record shows that the defendant's attorney labored under a mistake of law, that his delay was for a period of only two weeks, and that he moved promptly when he discovered that a default had been entered. The order is affirmed. N. E. Wretman, of San Jose, and Houghton & Houghton, of San Francisco, for appellants. E. S. Bell, of Napa, and Michael Brown, of San Mateo, for respondent. STURTEVANT, Judge pro tem. This is an action brought by the plaintiff to recover for services rendered. The plaintiff had judgment in the lower court. The defendants appealed therefrom, and have brought up a bill of exceptions containing a part of the evidence. The defendants contend that the services rendered, if any, were the services of a trustee, and that no recovery should have been had till the plaintiff rendered to the defendants an account of his stewardship. To ascertain the exact questions presented and how they arise, it is necessary to consider the following facts: On February 20, 1908, the Central Trust Company was appointed guardian of the estates of the defendants, who were at that time minor orphans. On May 1910, P. J. Foote was appointed guardian of the persons of the defendants. September 1910, the probate court made a monthly allowance of $75 per month in favor of each minor. Commencing on that date, the plaintiff received for the defendants the allowance money and con We concur: LENNON, P. J.; BEASLY, tinued to receive it during the life of the Judge pro tem. (38 Cal. App. 242) BROWN v. LEE et al. (Civ. 2449.) probate order. Both minors attained their majorities October 18, 1911. The Central Trust Company rendered its final account February 19, 1912. The plaintiff thereafter (District Court of Appeal, First District, Cali-collected, not only the said allowances, but fornia. Sept. 21, 1918.) 1. GUARDIAN AND WARD 163-ACCOUNTING CONCLUSIVENESS. One who received allowance money for minors from their guardian and acted as a trustee was not bound by the account rendered by the guardian. 2. TRUSTS 321-COMPENSATION OF TRUSTEE-FAILURE TO ACCOUNT. Minors who received their allowance through a trustee are entitled to be confronted with proper accounts, vouchers to support them, and to be paid any balance due them, preliminary to the payment of compensation to the trustee. 3. TRUSTS 315(2) COMPENSATION TRUSTEE-AMOUNT. OF also the rents, profits, and sales moneys; and expended moneys necessary to cover the personal expenses of the defendants and paid the taxes, insurance, and repairs on the properties of the defendants. These relations continued till about April 1, 1914. On that date a disagreement arose between the parties, and this action followed. The plaintiff framed his complaint into two counts: In the first one he claimed $4,789.38 as a balance upon a mutual, open, and current account for moneys expended between September 1, 1910, and April 1, 1914; and in the second count he claimed $6,000 for services rendered "as fiscal agent for the defendants," within two years prior to June 8, 1914. A trustee of allowance money for minors, being entitled under Civ. Code, § 2274, and Code Civ. Proc. § 1618, to the same compensation as an executor, was entitled to compensation of The defendants answered by interposing about $1,000 for the handling of about $30,000. proper denials as to each count and by al4. TRUSTS ~315(3) — COMPENSATION Ac-leging among other things, that the defendTION TO RECOVER-ACCOUNTING. ants were minors prior to October 18, 1911; that a guardian of their persons was appointed April - 1910; that the Central Trust Company was appointed guardian of their estates on February 29, 1912; that before the commencement of this action the plaintiff re The trustee of allowance money for minors should account for all moneys from the be ginning of his trust until the bringing of an açtion for compensation, wherein the minors, by an affirmative defense tantamount to a crosscomplaint, sought an accounting. Appeal from Superior Court, San Mateo ceived for the account of the defendants large County; George H. Buck, Judge. Action by D. C. Brown against James A. Lee and another. Judgment for plaintiff, and defendants appeal. Reversed. sums of money totaling over $50,000; that during the same time the plaintiff had expended large sums in behalf of the defendants; that the defendants had asked an ac counting and none had been rendered. The mount to a cross-complaint for an accountdefendants then prayed that the plaintiff be ing. 1 Ency. Plead. & Prac. 98, 99; 1 Corpus required to make a full and complete ac- Juris, pp. 633-635. The accounting should counting of all of his transactions and for have been had for the whole period from general relief. The trial court made find- September, 1910, till April 1, 1914. Aftings: (1) Against the plaintiff on his first er the accounting had been had, the account count; (2) in favor of the plaintiff on his second count; and (3) in favor of the plaintiff on the affirmative defense. would have shown on its face: (1) Whether the balance for the whole period was in favor of the plaintiff or in favor of the defendants; (2) the ultimate facts on which the trial court could have estimated the plaintiff's claim for services; and (3) the dimensions of the book account relied on by the plaintiff in his first count. As the case must go back for a new trial, we think it advisable to suggest that each party be allowed to so amend his pleadings as he may be advised. [1, 2] The trial court excluded proof of, and found against the plaintiff on his first count, because an account had been rendered and settled in the probate court on the application of the trust company. At first glance these rulings would seem to be in favor of the appellants. But, on close consideration, we think the rulings had a double effect. The plaintiff was not bound by the account rendered by the trust company. He was not chargeable with the allowance moneys until he received them. Having received moneys for the account of these defendants, the plaintiff should have been charged therewith; later he should have accounted therefor; and he was entitled to be compensated for all KLIMM et al. v. HENRY COWELL LIME moneys for which he had so accounted. And, conversely, these defendants were bound to bear such burdens, but at the same time they were entitled to be confronted with proper accounts, vouchers to support the same, and to be paid any balance that might be ascertained to be due them. As the record stands, the merits or demerits of plaintiff's first count have not been ascertained from the point of view of either the plaintiff or the defendant. The second count was tried on the theory that it presented the whole controversy between the parties litigant. But it will be noted that the pleading by its express terms, was limited to the period described as "within two years prior to June 8, 1914." This allegation split the plaintiff's cause of action. When, prior to October 18, 1911, such moneys were paid by the trust company, it is conceded by both litigants that this plaintiff received and disbursed the same, but that he has not since accounted for the same. Neither has he accounted for moneys received after the trust company rendered its account. He wrote out such a paper, but his counsel told him not to deliver it, and they did not even offer to bring it forward on the trial, although the defendants were constantly demanding the same. The judgment is reversed. We concur: LENNON, P. J.; BEASLY, (38 Cal. App. 239) & CEMENT CO. (Civ. 2316.) (District Court of Appeal, First District, California. Sept. 20, 1918.) 1. MECHANICS' LIENS 132(4) — TIME FOR FILING CLAIMS. Claims filed more than 30, but within 90, days after completion of structure were filed in time under Code Civ. Proc. § 1187, where no notice of completion was filed. 2. APPEAL AND ERROR 1040(10)—ERRONEOUS RULING ON DEMURRER-HARMLESS ER BOR. Where defendant procured stipulation at trial that building was completed November 15, 1914, he was not prejudiced by overruling of demurrer to complaint, which alleged that work was completed on or about such date. 3. MECHANICS' LIENS 161(4)-INTEREST. Code Civ. Proc. § 1183, does not prohibit the allowance of interest in mechanics' lien cases. 4. APPEAL AND ERROR 1154-ERRONEOUS JUDGMENT-MODIFICATION. Where by oversight judgment is entered for $60 more than called for by the findings, direc tion will be given to trial court to modify judgment by reducing amount of recovery by that amount. 5. COSTS 238(1)—APPEAL TAKEN for De LAY-SUCCESSFUL PARTY. Where appeal appears to be taken for delay only, costs will be allowed a respondent whose judgment is reduced in amount, where appellant would have had relief in trial court, if he had asked therefor. [3] The trial court allowed the plaintiff $2,500 for his services. He was entitled to the same compensation as an executor. Civ. Code, 2274; Code Civ. Proc. § 1618. He received and can probably account for about $30,000. Measured by the provisions of section 1618, Code of Civil Procedure, his compensation would have been about $1,000. It appears that he has already received $1,800 as compensation, and, as the record now stands, he has apparently been overpaid. [4] The affirmative defense was tanta Appeal from Superior Court, City and County of San Francisco; James M. Troutt, Judge. Consolidated action by Frank J. Klimm and others against the Henry Cowell Lime & Cement Company. Judgment for plaintiffs for the amount of their respective claims with interest, and defendant appeals. Judgment modified by reducing the amount awarded one plaintiff, and in all other respects affirmed. Hatch & Hatch, of San Francisco, for ap- support of his position. But in view of the pellant. Daniel A. Ryan, Louis P. Dunkley, W. W. Allen, H. K. Eells, E. T. Cooper, Pillsbury, Madison & Sutro, Samuel B. Russell, G. R. Perkins, Adams & Adams, Nowlin, Fassett & Little, Lent & Humphrey, and Adolph Cohen, all of San Francisco, for respondents. BEASLY, Judge pro tem. This is a consolidated action for the foreclosure of certain mechanics' liens against the property of defendant Henry Cowell Lime & Cement Company. It resulted in a judgment in favor of the lien claimants for the amounts of their respective claims, with interest at the legal rate from November 15, 1914, the date found by the court to be the date of completion, and for the foreclosure of the liens as prayed. The defendant appeals. The liens were all perfected according to law and filed in time. Some outstanding facts of the case are of interest. The defendant Henry Cowell Lime & Cement Company entered into a contract with Day & Sons to erect and complete a building for $70,000. At the trial of this action it was agreed by all the parties that the building was completed on November 15, 1914, and the court found that the building was in fact completed on or about that date. Sufficient funds were due to the contractor from the defendant at the time of the trial to pay all these claims, with the interest allowed by the court. The contractor did not defend against the claims, but defaulted. It was proven at the trial that Day & Sons did not dispute the claims at all, and it does not appear that the Cement Company disputes any of the foregoing facts. It appeared at the trial, also, that Day & Sons gave a general order to the Cement Company to settle all of these claims. At the outset of the trial its attorney stated to the court that he had placed the matter before his client, and advised it that the trial was to he had on that day, and that his client had furnished him with no defense to the action. [1] In face of this rather extraordinary record, it is now claimed by the Cement Company that the claims of lien were not filed in time, as they were filed more than 30 days after completion; but no notice of comple tion was filed, so the lien claimants had 90 days after actual completion within which to file their claims, and the claims were on file within this period. Code Civ. Proc. § 1187. facts above stated, and especially of. the stipulation of the defendant as to the time of completion, which stipulation was sought from two of the plaintiffs by defendant's counsel himself at the trial, the defendant cannot be said to have been prejudiced in any substantial right by the ruling on demurrer, nor by the form of the finding, and this case will not be reversed on that ground, although the case of Cohn v. Wright supports the contention of defendant's counsel. [3] It is also contended by defendant that no interest can be allowed in mechanics' lien cases, and counsel cites section 1183, Code of Civil Procedure, in support of this contention; but the point is decided against him in Hubbard v. Jurian, 170 Pac. 1093. will be noted that it is not contended that any of the several amounts of interest allowed was too large, but only that no interest whatever should have been allowed in the case. It [4] The other points made for reversal here are all equally technical with those to which we have called attention, except that in the case of the plaintiff Klimm judgment was entered for $60 more than called for in the findings. We have no doubt that this excess would have been conceded, had attention been called to it before this appeal was taken; but as it is an undeniable error, though evidently caused by oversight, the judgment must be modified, by reducing the amount awarded to Klimm by the sum of $60, and this the superior court is directed to do. In all other respects the judgment is affirmed. [5] We are almost persuaded, from a consideration of this entire record, that the appeal was taken for delay only, and therefore his costs on appeal will be allowed Klimm, as well as the other respondents. We concur: LENNON, P. J.; STURTEVANT, Judge pro tem. (38 Cal. App. 245) BOND v. WALTERS. MULLER v. SAME. (Civ. 2535, 2536.) (District Court of Appeal, First District, California. Sept. 23, 1918. Rehearing Denied by Supreme Court Nov. 21, 1918.) 1. PUBLIC LANDS 128-PATENTED LANDSESTABLISHMENT OF TRUST. Courts of equity will entertain proceedings to decree that persons who have received patents to land hold them in trust for the true [2] Another ground urged for reversal is that it was averred in the complaints and found by the court that the building was completed on or about the 15th day of November, 2. PUBLIC LANDS128-SUIT TO ESTABLISH 1914; and it is contended that this averment is not sufficiently certain, but that the exact date of completion should have been alleged and found. The defendant raised this point by demurrer to the complaints, and cites Cohn v. Wright, 89 Cal. 86, 26 Pac. 643, in owner. TRUST-NECESSARY ALLEGATIONS. Plaintiff, seeking to enforce a trust as true owner of land held by another under patent, must show by his complaint that he is entitled to the relief sought, that he occupies a status entitling him to control legal title, and that officers who awarded land to defendant, to whom patent was issued, were imposed upon by fraud-sons who have received and hold patents to ulent practices of defendant. land hold the same in trust for the true own3. PUBLIC LANDS 128-SUIT TO ESTABLISH er, a plaintiff in such action must show by TRUST-INSUFFICIENCY OF COMPLAINT. In suits to enforce trusts as to land held by defendant under patent from United States, complaints held insufficient, as failing to allege that plaintiffs, in their contests with defendant before land department, introduced any evidence they had complied with regulations of Department of Interior entitling them to lands but for adverse claim of defendant, and as failing to claim defendant practiced any fraud on govern4. PLEADING 8(11)-CONCLUSION-SUIT To ENFORCE TRUST AS TO PATENTED LAND. ment. In suit to enforce trust as to lands held by defendant under patent from United States, plaintiff's allegation of conclusion that defend ant was not entitled to receive land was not sufficient. He must go further, and show he occupied such a status, having complied with rules of Department of Interior, as entitled him his complaint that he is entitled to the relief sought; that he occupies such a status as entitles him to control the legal title; that the officers who awarded the land to another, to whom the title was issued pursuant to the judgment, were imposed upon and deceived by the fraudulent practices of him in whose favor the judgment was given. Such facts must be distinctly alleged and proven. Kentfield v. Hayes, 57 Cal. 409; Aurrecoechea v. Sinclair, 60 Cal. 532. No such allegations are here presented. The complaint alleges, among other things, that in a contest for the lands between plaintiff and defendant filed before the land office, and at a hearing had before the land department, the register and receiver of the United States land office filed their decision, holding that the defendant herein had the legal title to the land in Decisions of land department on questions of fact, in absence of showing by plaintiff, seek-question; that after the entry of such opining to enforce trust as to land patented to de-ion plaintiff appealed to the General Land fendant, that he has complied with rules of De- Office, where the action of the register and partment of Interior, are not subject to review receiver was affirmed; that thereafter the by courts. plaintiff appealed to the Secretary of the InAppeal from Superior Court, Mendocino terior, where such action was again affirmed, County; J. Q. White, Judge. and the homestead entry of plaintiff was canSuits by Benjamin Bond and by Vera Mul-celed as to the lands in question because of ler against Augusta E. Walters. From judg- the prior right of defendant thereto and a ments of dismissal, plaintiffs appeal. Af-patent issued to her. As pointed out by defirmed. fendant, there is no allegation in the complaint that plaintiff in his contest before the to control title. 5. PUBLIC LANDS 106(1)-LANDS OF UNIT ED STATES-REVIEW BY COURTS-DEPARTMENTAL DECISIONS. Charles Kasch, of Ukiah, for appellants. Preston & Preston, of Ukiah, for respond-land department introduced any evidence whatever showing that he had complied with the rules and regulations of the Department ent. LENNON, P. J. These suits were brought of the Interior entitling him to the lands in to have a trust declared in certain lands. question, but for the adverse claim and conNor does The complaints are identical in every re-test instituted by the defendant. spect, except the names of the plaintiffs and the plaintiff in his complaint claim that dethe description of the real property involved; fendant practiced any fraud or misrepresenand from a stipulation contained in the tation on the government in her contest, nor transcript it appears that it is agreed that in any of the proceedings had by her in obthe decision in one case shall be determina-taining the patent to the lands in question. tive of the other. The allegation that defendant was not entiPlaintiffs have appealed from the judg- tled to receive the land does not suffice. ment of dismissal entered by the trial court after the entry of the default of the plaintiffs, which in each instance was for failure on their part to amend the complaint after the sustaining of general demurrers to the same. Plaintiff must go further and show that he occupied such a status as entitled him to control the legal title. Jameson v. James, 155 Cal. 275, 100 Pac. 700. And mere conclusions on his part to this effect are insufficient for this purpose. In the complaint in the Bond Case plaintiff seeks to obtain a decree adjudging that the defendant, to whom a United States patent for the lands described in the complaint was issued, holds the title to such land in trust for the plaintiff, and prays for a decree directing the defendant to execute a proper conveyance to him of the land in question. [1-4] While it is true that courts of equity will entertain proceedings to decree that per- STURTEVANT, Judge pro tem. [5] The decisions of the land department, in the absence of such showing, upon questions of fact, are not subject to review by the courts. Powers v. Leith, 53 Cal. 711; Elliott v. Robbins, 33 Cal. App. 577, 165 Pac. 1042. The judgment in each case is affirmed. We concur: BEASLY, Judge pro tem.; For other cases see sume topic and KEY-NUMBER in all Key-Numbered Digests and Indexes |