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ercise of ordinary prudence reasonably have , eration of the entire record that the testiforeseen and guarded against, are matters mony educed on behalf of the people is on which, in our opinion, should, upon the rec- the whole insufficient to support the verdict ord presented, have been submitted to the by reason of its inherent improbability. jury.

[1] While, however, this is our conclusion The order denying plaintiff's motion for a as to the facts of the case, we are of the new trial is reversed.

opinion that this is one of those cases where

in any error of the trial court in the admisWe concur: CONREY, P. J.; JAMES, J. sion or rejection of material evidence would

amount to prejudicial error, particularly

where the evidence thus erroneously admit(32 Cal. App. 727)

ted or excluded had a direct bearing upon the PEOPLE v. PRIETZ. (Cr. 656.)

main issue in the case and upon the degree of (District Court of Appeal, First District, Cali- credit to be accorded to the prosecuting witfornia. Feb. 7, 1917.)

ness therein.

[2] This brings us to the appellant's sec1. CRIMINAL LAW Cm1168(2)-APPEAL AND

ERROR-ADMISSION EVIDENCE-HARM | ond contention, which is that the trial court LESS ERROR.

erred in its rulings upon the admission of In prosecution for rape, where the prosecut certain statements made by the prosecuting ing witness' story lay near the border line of witness to another of the principal witnesses incredibility, any error in admitting or rejecting material evidence will amount to prejudicial for the prosecution respecting complaints error, particularly where such evidence had a which the prosecuting witness claimed to direct bearing upon the main issue and upon the have made with regard to her father's treatdegree of credit to be accorded to the prosecut- ment of her. While upon the witness stand ing witness. (Ed. Note.--For other cases, see Criminal

the prosecuting witness was asked the folLaw, Cent. Dig. 88 3124, 312442, 3129-3136.]

lowing question:

"Q. You stated to Miss Delmar that your fa2. RAPE 48(1)—ADMISSION OF EVIDENCE ther had committed many acts of sexual inter

-COMPLAINANT'S STATEMENT THIRD course upon you, did you not ?"
PEBSONS.

Permitting prosecuting witness, in a prose Aside from the leading and improper form cution for rape, to testify to statements made of this question, to which the defendant did by her to a third party as to treatment she had not urge this specific objection, his other suffered was reversible error, where her story was close to the border line of incredibility, and proper objections to it were overruled by the where the prosecuting attorney had called the court, and the witness was permitted to anjury's attention to such statements in his open- swer the question affirmatively. The quesing. [Ed. Note.—For other cases, see Rape, Cent. the proffer of proof made by the prosecuting

tion and answer thus permitted responded to Dig. § 67.)

attorney in his opening statement to the jury, Appeal from Superior Court, Alameda wherein he said, "She finally confessed to County ; J. J. Trabucco, Judge.

Mrs. Margaret Delmar what had been done Robert Prietz was convicted of rape, and to her all this time," and would thus be givappeals. Reversed.

en an added impression and influence upon A. F. St. Sure, of Alameda, and J. Leonard the jurors' minds. We are unable to distinRose, of Oakland, for appellant.

U. s. guish the foregoing question and ruling from Webb, Atty. Gen., and John H. Riordan, Dep- the question and ruling which led to the reuty Atty. Gen., for the People.

versal of the case of l'eople v. Wilmot, 139

Cal, 103-107, 72 Pac. 838, wherein the obLENNON, P. J. This is an appeal from a noxious question was in the following form: judgment of conviction of the defendant up "Q. Did she say whether or not this defendon a charge of rape alleged to have been ant had had sexual intercourse with her?" committed upon his daughter at the time of

The trial court perunitted this question to the age of 15 years.

be answered, and the Supreme Court reversed The record is voluminous, and presents a the case upon that sole ground, holding that state of facts which it would subserve no the testimony elicited was clearly incompeworthy or useful purpose to reproduce intent, and that it must have substantially aftheir disgusting and sordid details here. The fected the defendant's case. appellant's first contention is that the story

In a case lying as close to the border line of the prosecuting witness as recited upon of incredibility as does the present one we the trial of the cause is so inherently im- think the error of the trial court in permitprobable as to require a reversal of the ver- ting the foregoing question to be answered dict and judgment of conviction based upon was prejudicial to a degree which requires it. While there is much force in this sugo a reversal of the case. gestion, and while there was also much in the Judgment and order reversed. prosecution of the case as disclosed by the record which does not commend itself to us, We concur: RICHARDS, J.; KERRIwe are unable to say from a careful consid- GAN, J.

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

(33 Cal. App. 1)

the stock, which fact was also known to ELLSWORTA V. NATIONAL HOME & plaintiff; (4) that a transfer of the stock

TOWN BUILDERS. (Civ. 2204.) would be in violation of a pooling agreement (District Court of Appeal, Second District, Cali- to which appellant was a party, the existence fornia. Feb. 13, 1917.)

of which was known to plaintiff ; and (5) 1. CORPORATIONS Om 99(2)--SALES OF STOCK-that plaintiff paid no consideration for the CONSIDERATION.

stock. Corporation stock issued return for valuable services rendered and labor performed on

First. There is no merit in the first conbehalf of the corporation is not issued without tention, since the uncontradicted record consideration.

shows that the stock was issued by the cor[Ed. Note.-For other cases, see Corporations, poration to Clark in consideration of valuaCent. Dig. & 445.)

ble services rendered and labor performed 2. CORPORATIONS Eww193—MEETING OF STOCK by him for and on behalf of the corporation. HOLDERS-PLACE-VALIDITY OF ACTS. Though the by-laws provided that the stock

[2] Second. The contention that the issuholders' meetings should be held in Phænix, ance of the stock to Clark was illegal is Ariz., the acts of stockholders and of the direc-based chiefly upon the fact that defendant tors elected by them at a meeting in Los Angeles, was a corporation created under the laws of Cal., to which all the stockholders consented, and notice of which they waived, were valid; the state of Arizona; that the by-laws of the the ollicers serving under such election being de company provided that all meetings of stockfacto.

holders, whether regular or special, should, [Ed. Note.--For other cases, see Corporations,

upon notice as therein prescribed, be held in Cent. Dig. $ 733.]

Phoenix, Ariz., whereas the board of directors 3. CORPORATIONS O130_TRANSFER OF STOCK ON Books-RIGHT TO TRANSFER.

which authorized the issuance of the stock The mere fact that certain stock was named to Clark was elected at a special meeting of in a pooling agreement which was never con- the stockholders held, without notice given summated would not prevent its transfer on the

as provided in the by-laws, in the city of Los books to the holder.

(Ed. Note.-For other cases, see Corporations, Angeles, Cal.—all of which facts appear to be Cent. Dig. $$ 488, 489.]

true. But it is likewise true that the hold4. CORPORATIONS Cw133—TRANSFER OF STOCK ers of all of the outstanding stock, in writing

-REFUSAL OF CORPORATION TO MAKE-Evi- consented to the holding of such meeting in DENCE-ADMISSIBILITY.

the city of Los Angeles, and waived notice In action by a purchaser of corporation stock for refusal to transfer it on the books, thereof, and that at the meeting so convened evidence of the consideration paid by her was pursuant to such written consent, all of the inadmissible.

stock of said corporation then issued was [Ed. Note.-For other cases, see Corporations, represented at said meeting and participated Cent. Dig. $8 513-520.]

in the election of members of the board, each Appeal from Superior Court, Los Angeles and all of whom received the unanimous vote County; Gavin W. Craig, Judge.

of all the stock so represented. The board Action by Lucie E. Ellsworth against the of directors so elected organized by electing National Home and Town Builders. Judg- officers, and in transacting the business of ment for plaintiff and order denying motion the corporation, assumed to and did act as for new trial, and defendant appeals. Af- the duly constituted board of directors of the firmed.

company. Appellant insists that, by reason Gray, Barker & Bowen and Flint, Gray & of the stockholders' meeting being held outBarker, all of Los Angeles, for appellant. side of Arizona, contrary to the by-laws of S. L. Carpenter, of Los Angeles, for respond- the company, such meeting and all proceedent.

ings there had were without right or author

ity, and hence wholly void. We cannot SHAW, J. This action to recover damages assent to this contention. It may be confor conversion is based upon defendant's re ceded that in a proper proceeding the memfusal to transfer to plaintiff certain shares bers of the board so elected might have been of its capital stock, evidenced by a duly in- ousted from office (State v. Cronan, 23 Nev. dorsed certificate, No. 167, which the latter 437, 49 Pac. 41) but they were nevertheless, had acquired from one J. F. Clark, to whom so long as they continued to act as the duly the defendant corporation had theretofore constituted board, de facto officers (San Joaissued the stock. Judgment went for plain- quin L. & W. Co. v. Beecher, 101 Cal. 70, 35 tiff, from which, and an order denying its Pac. 319; Barrell v. Lake View Land Co., 122 motion for a new trial, defendant appeals. Cal. 129, 54 Pac. 591), the validity of whose

[1] As grounds for reversal, appellant | acts is not subject to attack in an action of claims: (1) That the stock was issued with- | the character of that here involved (San Jose out consideration; (2) that the issuance Sav. Bank v. Sierra Lumber Co., 63 Cal. 179; thereof was unauthorized by the corporation; 2 Cook on Corporations [6th Ed.] § 623). (3) that at the time when plaintiff demanded Meetings held in violation of charter provithe making of the transfer, another party, sions have been held void. Mr. Cook in his with defendant's knowledge, held an option work on Corporations (6th Ed.) § 589, in disfrom plaintiff's assignor for the purchase of cussing such authorities, says:

em For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

"It is the sounder view to regard the votes California, 79 Cal. 323, 21 Pac. 852, 5 L. R. A. and proceedings at such a meeting as voidable 233, 12 Am. St. Rep. 145, and Young v. New rather than void. The corporation

itself cannot Standard, etc., Co., 148 Cal. 306, 83 Pac. 28, allege that such proceedings are void. It is estopped from so doing. So, also, are the stock | have no application to the facts here preholders who participated in the meeting." sented.

To the same effect see Handley v. Stutz, [4] Fifth. It must follow from what has 139 U. S. 417, 11 Sup. Ct. 530, 35 L. Ed. 227; been here said that whether or not plaintiff Heath v. Silverthorn Lead, etc., Co., 39 Wis. paid any consideration for the stock was no 146; Thompson on Corporations, 8 814. The concern of appellant, and hence it was not stockholders' meeting in question, so far as error for the court to exclude any evidence disclosed by the record, was not in violation as to the consideration paid therefor. of any provision of the charter, but contrary The judgment and order are affirmed. to the by-laws which had been adopted by the stockholders. Neither the corporation We concur: CONREY, P. J.; JAMES, J. nor the stockholders all of whom, as stated, were present and united in the election of

(32 Cal. App. 729) this board of directors by unanimous vote of

REDMOND v. MCLEAN et al. (Civ, 2207.) all the outstanding stock, as against plaintiff, who acquired the certificate in usual course, (District Court of Appeal, Second District, Caliare in any position to assert as void the act

fornia. Feb. 7, 1917.) of the board in issuing the stock to her ven- 1. QUIETING TITLE O 44(3) — EVIDENCE – dor.

PRIMA FACIE Case. Third. Appellant offered in evidence a In an action to quiet title, evidence, condocument signed by J. F. Clark, E. E. Rags- mencement of the action he was and for a long

sisting of plaintiff's testimony that at the comdale and one Joseph P. Smith, whereby Clark time prior thereto had been in possession of the and Ragsdale agreed that Smith should have lot described in the complaint as delineated upan option for a period of 12 months from ferred to conveying the lot described in the com

on a map under and by virtue of a deed reAugust 5, 1911, to purchase from said Clark plaint to him, was sufficient as a prima facie and Ragsdale 200,000 shares of the capital showing to establish plaintiff's right as against stock of appellant corporation for the sum defendant to a decree quieting his title to the

lot so described. of $2,000, to the introduction of which plaintiff's objection was sustained. No error is tle, Cent. Dig. $ 91.)

(Ed. Note.--For other cases, see Quieting Tipredicated upon this ruling. Waiving such 2. QUIETING TITLE Cw44(5) – EVIDENCE omission, we perceive no error in the ruling SUFFICIENCY. for the reasons: First, that the agreement Evidence held to justify a finding that plainappears to have been made without any con

tiff was at the time of the commencement of the sideration therefor; and, second, there is complaint, and was the owner thereof and en

trial in possession of the lot described in the nothing in the agreement showing that it had titled to a decree quieting his title thereto. reference to the stock evidenced by certificate [Ed. Note.-For other cases, see Quieting TiNo. 167, issued to Clark long after the mak- | tle, Cent. Dig. $ 92.] ing of said agreement. We cannot assume 3. QUIETING TITLE Om 47(2)—FINDINGS—CONthat the 50,000 shares of stock so purchased

FORMITY TO ISSUES.

As no issue as to the location of the boundby plaintiff was in violation of this agree ary lines and dimensions of the lot was tendered ment made by Ragsdale and Clark, or if by the complaint, and there was nothing in the Smith exercised the option they would not answer enlarging the scope of the complaint, deliver to him the stock as agreed. There a finding of the court which purports to locate

the lot upon the ground and fix the dimensions was no error in the ruling of the court in thereof should be disregarded as a finding of fact excluding from evidence this document. not in issue or presented by the pleadings, and, (3) Fourth. It next claimed that the being so disregarded that part of the decree

based upon such finding should be stricken. stock in question so owned by Clark was sub

[Ed. Note.-For other cases, see Quieting Tiject to a pooling agreement signed by Clark. | tle, Cent. Dig. 97.) It is true a document was offered in evidence to which the signature of Clark was attach

Appeal from Superior Court, Los Angeles ed, providing that the stock and the certifi. County; Gavin W. Craig, Judge. cates evidencing the same, owned by the

Action to quiet title by John E. Redmond signers thereof, should be deposited with against Mrs. Della McLean and others.

, as trustee. Such pooling agreement, From a judgment for plaintiff, and an order however, was never consummated, and the denying a motion for a new trial, the named evidence clearly shows that certificate No. defendant appeals. Judgment modified, as 167 was at all times, up to the time when he modified affirmed, and order denying motion delivered same to the plaintiff herein, in the for new trial affirmed. control and custody of Clark. There is no Olin Wellborn, Jr., and Alfred H. McAdoo, evidence of any circumstance that justified both of Los Angeles, for appellant. Edward or excused the corporation for refusing to Dietrich, Dietrich & Kidder, and Smith, Milltransfer the stock on demand of the plaintiff, er & Phelps, all of Los Angeles, for respondand hence the cases of Jennings v. Bank of Jents.

Row For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

SHAW, J. Action to quiet title, the com- , the complaint, and was the owner thereof plaint being in the usual form and alleging and entitled to a decree quieting his title that plaintiff was the owner and in posses- thereto. sion of lot 31, block 2, of the Golden Bay (3) Had the court contented itself with tract, as per map recorded in book 2, page 15, such finding and decreed in accordance there of maps, Los Angeles county, Cal.; that de- with, no just cause for complaint would have fendant, without right, claimed an estate or existed. As stated, the action was one to interest therein adverse to plaintiff. De- quiet title. Notwithstanding this fact, the fendant Della McLean, the appellant, an- court, over objections of defendant that such swered, denying that the plaintiff was the question was not in issue, permitted evidence owner or in possession of the lot described to be introduced under which it not only in the complaint; and, as a further defense, quieted plaintiff's title, but fixed the location asserted that she was the owner in fee sim- of the boundary lines, and dimension of the ple of the easterly 4 feet of said lot 31, but lot. No issue was tendered by the complaint asked no affirmative relief. At the trial, | under which, had defendant suffered default judgment went for plaintiff, from which, and or filed a disclaimer, the court would be jusan order denying her motion for a new trial, tified in making a decree establishing the defendant McLean appeals.

size and boundary lines of the lot; nor is [1, 2] The sole question at issue upon the there anything in the answer that enlarged pleadings was whether plaintiff was at the the scope of the complaint. Nevertheless, by time of commencing the action the owner and its judgment, the court found and decreed in possession of all or any part of the lot de- that said lot so described in the complaint as scribed in his complaint as lot 31, block 2, as lot 31, block 2, of the Golden Bay tract, as delineated upon the map referred to. At the delineated upon the map therein referred to, trial plaintiff, in support of his claim, tes- was located at a pointtified that at the commencement of the ac- "beginning at a point 460 feet east from the tion he was, and for a long time prior there center line of an alley known as the Speedway to had been, in possession of said lot 31, as on the southerly line of Ozone street, continudelineated upon said map, under and by vir- ing thence along said southerly line of Ozone

street a distance of 30 feet east, continuing tue of a deed whereby the grantors therein, thence in a southerly direction to a point disdescribing the lot as in the complaint, con tant 490 feet from the center of said Speedway veyed the same to bim. This evidence, uncon- along the northerly line of an alley, between tradicted, was sufficient as a prima facie show said northerly line in a westerly direction a

Ozone and Rose streets, and continuing along ing to establish plaintiff's right as against distance of 30 feet to a point distant 460 feet defendant to a decree quieting his title to the from the center line of aforesaid Speedway along lot so described. Davis v. Crump, 162 Cal. the northerly line of said alley, thence in a 513, 123 Pac. 294; De Noon v. Morrison, 83 of Ozone street 460 feet from the center line of

northerly direction to a point in the southerly line Cal. 163, 23 Pac. 374. In opposition to the Speedway, being the point and beginning." case so made by plaintiff, defendant conceded that plaintiff, under the deed, was in pos

Not only was the question of the dimensession of all of said lot, except a strip of sions and location of the lot not involved, 4 feet on the easterly side thereof, which de- but we are unable to find any evidence in fendant claimed to be in possession of by the confused and jumbled record presented virtue of an agreement fixing the boundary which sustains the finding of the court as to line between the lots. Aside from any con- the location of the boundary lines of the lot. flict in the testimony touching the question That part of the finding which purports to of possession, the evidence offered by de locate the lot upon the ground and fix the fendant was wholly insufficient to establish dimensions thereof should be disregarded as any agreement fixing the boundary line. a finding of fact not in issue or presented by While both parties had caused surveys to be the pleadings. Thus disregarded, that part made and the surveyors had agreed upon a of the decree herein quoted and following the line, there is no evidence that plaintiff ever language of said finding is without support, acquiesced in the line so established by these and hence should be stricken from the desurveyors. There is some meager evidence as cree. to a fence, erected by somebody undisclosed

The judgment is therefore modified by by the record; but it is not made to appear striking therefrom that portion commencing that the fence was erected in accordance with the words, “beginning at a point 460 with any agreement between plaintiff and feet," and ending with the words, “being the defendant, nor is it shown at what time the point of beginning." As thus modified, the fence was erected; indeed, from aught that judgment is affirmed, and hence no reason appears to the contrary, it may have been exists for granting appellant's motion for a erected the day before the trial. Upon the new trial, and the order denying said motion state of the record here presented, the court is likewise affirmed; appellant to recover was fully justified in finding that plaintiff her costs on this appeal. was at the time of the commencement of the trial in possession of the lot described in We concur: CONREY, P. J.; JAMES, J.

RE- that:

(33 Cal. App. 706)

"That he will not call upon the lessor for EGAN v. DODD. (Civ. 1872.)

any repairs, alterations, or maintenance during

said term." (District Court of Appeal, First District, Cali

Both leases contain the additional covefornia. Feb. 6, 1917.)

nant on the part of the lessee to the effect 1. LANDLORD AND TENANT 152(4) PAIRS-LESSEE'S DUTY.

"He will surrender and yield up possession to A lease providing that the lessee will not the lessor all in good order and repair as the call upon the lessor for repairs and will sur same is received by him, reasonable use and render premises in good order less reasonable use wear thereof and damages by the elements alone casts upon the lessee the burden of making re- excepted." pairs necessary to make the building safe.

(Ed. Note. For other cases, see Landlord It appears that in December, 1913, two and Tenant, Cent. Dig. $8 541-543.]

years before the plaintiff vacated the pren2. LANDLORD AND TENANT 101–REPAIRS-ises, the city engineer of the city of Fresco STATUTE.

served a notice upon the defendant as owner Civ. Code, 8 1932, providing that the birer of of the leased premises, declaring the builda thing may terminate the hiring when the greater part of the thing hired perishes, etc., is in- ing to be dangerous in certain specified parapplicable to a lease which requires the lessee ticulars, and requiring its demolition withia to make the repairs.

60 days thereafter. Following the receipt of (Ed. Note.-For other cases, see Landlord and this notice defendant, under the provisions Tenant, Cent. Dig. 88 314, 315.]

of the city building ordinance, demanded an Appeal from Superior Court, Fresno Coun arbitration to determine whether or not the ty; H. Z. Austin, Judge.

building could be repaired and rendered safe Action by J. H. Egan against Fred Dodd. under the ordinance. The matter was subJudgment for plaintiff, and defendant ap- mitted to arbitration in the manner provided peals. Reversed.

in the ordinance; and in their report made Geo. Cosgrave, of Fresno, for appellant. to the city engineer the arbitrators agreed Short & Sutherland, of Fresno, for respond that there is no necessity whatever for ent.

taking down any portion of the building,”

but reported that certain repairs were necesKERRIGAN, J. The plaintiff commenced sary and should be made. Upon receipt of a this suit to recover from the defendant a copy of the arbitrators' report defendant at balance alleged to be due for laundry work. once wrote plaintiff advising him of the reThe defendant answered, and also set up a quirements of the arbitrators as to repairing counterclaim, in which he alleged that the the building, and, referring to the covenants plaintiff was indebted to him for the rent of of the lease regarding the lessee's obligation premises situate in the city of Fresno, and to repair, notified him to make at once the held by plaintiff under two leases from the

repairs required. Those repairs were not defendant. The judgment of the court was made. Subsequently, and during the life of in favor of the plaintiff and that the defend the lease, a portion of one of the walls of ant take nothing by his counterclaim. De- the building collapsed owing to an excavafendant appeals.

tion made into the adjoining land in the The question presented for determination course of building operations thereon; whereis as to whether or not the plaintiff was en- upon and almost immediately the defendant, titled under the circumstances of the case to although insisting that he was under no obabandon the premises held under said leases, ligation to do so, commenced to repair the and thereby terminate them, and calls for a wall, saying that he felt under all of the circonstruction of the provisions of the leases cumstances of the case that perhaps it would relating to the obligation to keep the prem- be asking too much of the tenant to make ises in repair.

this particular repair. Nevertheless the Concerning the lessee's obligation to re- plaintiff, without notice to the defendant, pair, the lease of what is called the main abandoned the premises, and moved into : building provides:

building which he had recently caused to be "The lessee also agrees that the lessor shall

erected. not be called upon to make any repairs or im

[1] The covenants to repair above set out provements wbatever in said leased premises bound the tenant, we think, under the genduring the term of this lease, or any renewal eral rule adopted in this state, to make the thereof, and that he will at all times and at his own cost and expense keep said premises in repairs, and he was not entitled because of good order, repair and condition, provided, how the condition of the building to vacate the ever, that the lessor agrees to install" (here fol- premises. The effect of such covenants is lows an enumeration of certain improvements thus stated by Tiffany, in his work on Landagreed to be made by the lessor, and a provision imposing on the lessor the repair of the roof of lord and Tenant, at section 116 (d): the building, but which are not involved in the "An express covenant by the tenant to repair present controversy).

or keep in repair binds him to repair, although The other lease, covering a portion of the the injury were accidental and in no way caused

by his negligence. The express covenant to resecond floor of the building, contains the fol- pair binds the covenanter to make good any in. lowing covenant on the part of the lessee: jury which human power can remedy, even if

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

164 P.-2

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