trict. Judgment was given by that court an- [ action in equity to enjoin proceedings under nulling the resolution. Within 60 days thereafter this court vacated said decision and judgment and granted a hearing herein. The only petition filed herein asking for such action was one filed by Marsh Bros. & Gardenier, Inc., a corporation, which was not technically a party to the certiorari proceeding, but which was a party in interest, being the street contractor in whose favor the assessment was made. the assessment and prosecuted the same to judgment, with the result that judgment was given against it and its coplaintiffs on the merits. We will concede, purely for the purposes of the decision, that certiorari will lie to review an assessment levied on property for street improvements, and come at once to a discussion of the claim of petitioner that the assessment ordered herein is on its face in excess of the jurisdiction of the city council and void. [5] The street improvement work here involved was work on portions of two intersecting streets, and was done under the provisions of the so-called Street Improvement Act of 1911 (Stats. 1911, p. 730). The work and improvement being in the opinion of the council of more than local or ordinary public benefit, the district benefited was described, and it was ordered that the cost and ex [1-4] The claim that this court was without power to vacate the decision of the District Court of Appeal in this matter, and to transfer the same to this court for determination, is sufficiently answered by what is said in the Matter of Wells, 174 Cal. 467, 163 Pac. 657. As to proceedings in mandamus, prohibition, and certiorari originally instituted in a District Court of Appeal, this court has many times made such orders, and the uniform practice in that regard is fully sustain-pense be chargeable against and assessed ed by the opinion in the case cited. It is upon said district. Under the law it was reimmaterial that the only petition for such quired that the assessment on the several action by this court was by one not made a pieces and parcels of land within the disparty to the proceeding. This court has the trict be in proportion to the estimated benpower to make such an order on its own mo- efits to each lot. The work was done by the tion. When such an order is made within contractor and accepted by the superintendthe time prescribed in the Constitution, the ent of streets, who made his assessment for decision of the District Court of Appeal is the cost of the work with incidental expensvacated and the matter is transferred to es, $27,978.68, upon the various lots of land this court for a determination of all the in the district, 447 in number. An appeal material questions involved therein, to the was made by certain property owners to the same extent as if originally instituted in this council to review the assessment. The appeal court. It is also immaterial that the opinion was heard and the council gave its decision of the District Court of Appeal may not show by the resolution here assailed, wherein the any error upon its face, when considered amount to be assessed against each lot in the without regard to the record. The practice district was specified. The sole point made established by our decisions (People v. Da- against the resolution and the assessment vis, 147 Cal. 346, 81 Pac. 718; Burke v. Maze, thereby ordered is that the council did not 10 Cal. App. 206, 215, 101 Pac. 438, 440; take into consideration the proportion of benRauers, etc., v. Berthiaume, 21 Cal. App. efits to be derived by each of the several 675, 132 Pac. 596, 833), to the effect that in lots and make the assessment accordingly, considering petitions for a hearing, in this but, by said resolution, arbitrarily apportioncourt, of appeals required by our Constitution ed a portion of the cost without regard to to be taken to a District Court of Appeal, benefits. The particular charge in this bewe will consider only the opinion of that half is that council deducted from the ascourt and will not look into the record, is sessment theretofore made by the superinconfined to appeals, and has never been extendent of streets on the several lots fronttended to original proceedings instituted ing on Chabot road the sum of 50 cents per in such courts. There are material differ-running foot, amounting (according to petiences between the two classes of matters, tioner's brief) to $4,462.03, and added this to which, to our minds, preclude any such ex- the assessment against all of the lots in the tension of the practice, or at least, render it district in proportion to the area of each inadvisable to declare any such rule as to of said lots; the charge by reason thereof original proceedings instituted in a District being (according to petitioner's brief) $0.0006 Court of Appeal. There is no question of per square foot, and increasing petitioner's power involved in this regard. The power assessment from $652.50 to $663.27. exists as to all matters, and has been exercised in this particular matter, with the result that the proceeding is now here for de termination on its merits. We will concede, for the purposes of the decision, that this proceeding should not be dismissed for laches, or because of the claim that petitioner, before instituting the same, in common with others, resorted to an It may be admitted that an analysis of the assessment made by the street superintendent and that ordered by the council on appeal shows that the effect of the action of the council was that as to each lot fronting on Chabot road the street superintendent's assessment was reduced by an amount equal to fifty cents per running foot, less approximately $0.0006 per square us that under no conceivable conditions could the several lots be benefited in the proportion stated by the assessment, or that the assessment is void on its face. foot of area, and that the assessment on each of the other lots in the district was increased approximately $0.0006 per square foot of area. Also that the deduction of 50 cents per running foot on Chabot road aggregates $4,462.03, and that $0.0006 per tionality of the Improvement Act of 1911, the [6] A question is raised as to the constitusquare foot aggregates in the whole district claim being that it does not provide for an approximately the same amount. But it does assessment of the lands in the district in acnot follow that alleged "mathematical demon-cordance with the benefits to be actually restration," as it is called by learned counsel, of the method adopted by the council in apceived by such lands from the work, but only portioning the assessment, that the assess- provides for an assessment in proportion to ment was not made by the council solely with the estimated benefits. The act provides (secreference to the benefit to each lot, and does tion 4) that the city council may make the exnot represent the best judgment of that body pense of the work chargeable upon a district, as to the amount that should be charged which, in its resolution of intention, it shall against each lot under that method of appor- declare "to be the district benefited by said tionment. Certainly there is in this proceed- work and improvement," etc., and (section 20) ing no showing to the contrary, and the situ- that it shall assess the cost of the work upon ation portrayed by the record is not such the several lots in the assessment district that we can say that there was even any er- benefited thereby, "upon each respectively, in ror of judgment in the apportionment. The proportion to the estimated benefits to be rereturn to the writ shows that the council ceived by each of said several lots," etc. Full gave much time to the hearing of the appeal, opportunity is required to be given to the the same being considered at several ses- property owners to be heard with respect to sions, at which the parties interested were the proposed work and the extent of the disgiven the opportunity to be heard and were trict, prior to any order for the doing of the in fact heard. The minutes disclose that the work, and after the assessment is made they sworn testimony of witnesses was received, have the opportunity to be heard as to the and the resolution here assailed so states in amounts charged against their respective lots. terms. The nature of this testimony does not It is apparent, of course, that if the district appear, as no record was kept thereof; the created by the city council comprises all the law not requiring any such record. Certain- land to be actually benefited by the proposed ly it will not be presumed that this testimo- work, which is the manifest design of the act, ny was not sufficient to support the conclu- and if this "benefit" to the land embraced in sion of the council. The resolution in terms the district exceeds the cost of the work, an requires the superintendent of streets to as- assessment of the cost upon the several lots sess the sum of $27,978.68 upon the several in the district “upon each respectively in lots, "upon each respectively in proportion to proportion to the estimated benefits,” etc., is the estimated benefits to be received by each an assessment upon each lot in accordance of said several lots," and states that "this with the benefits received by it from the council hereby finds and decides and deter- work. The point appears to be that the cost mines that said several lots are of the work which is to be assessed against benefited by said work and improvement in the lands of the district may exceed the bene the proportions and in the amounts set forth fit, with the result that the assessment on in the table of assessments hereinafter set those lands while in proportion to the benefits forth." In the face of this finding, unassailed as it is by anything in the record, ing to each lot from the work. We do not may not be in accord with the benefits accruit cannot be said here that the assessment think the act, fairly read, so contemplates or was not made in accord with the rule of ap- provides. portionment prescribed by the statute. The "mathematical demonstration" of learned counsel is simply a demonstration of the facts we have already admitted. Those facts are entirely consistent with a conclusion that it was correctly decided by the council that, in order to make the assessment one according to the benefit to the several lots, it was necessary to charge against each lot the ex-gard, as we think it is, the objection made act amount specified in the resolution. That the amounts so charged are, in so far as the $4,462.03 is concerned, the same as would have been obtained by the method which counsel contends was in fact adopted, but as to the adoption of which there is no showing in the record other than that they are the same, is entirely beside the question. It cer lishment of "the district benefited by said When it provides for the estabfact be benefited by the completion of the prowork," it contemplates a district that will in posed improvement under the terms of the act, including the imposition of the cost thereof upon the lands of the district. If this be the proper construction of the act in this re is without force. That the exact cost of the proposed work is not known until after the establishment of the district, is unimportant. It can be approximately determined with sufficient certainty to avoid the possible condition suggested by counsel. There is no suggestion that any such condition exists in the case at bar. We concur: SLOSS, J.; WILBUR, J.; MELVIN, J.; VICTOR E. SHAW, Judge pro tem. On Petition for Rehearing. price therefor. When the balance of the work was ready for delivery the plaintiff refused to install the same until it should be paid in full for all the work. The Western Reclamation Company was unable to make PER CURIAM. The petition for a rehear-payment at the time, and prevailed upon the ing is denied. In denying a rehearing we deem it proper to say that we do not consider the points made by the petitioner relative to the alleged damage to its property resulting from the grading to the official grade available in this proceeding. See Duncan v. Ramish, 142 Cal. 693, 694, 76 Pac. 661; Hornung v. McCarthy, 126 Cal. 17, 58 Pac. 303; Engebretson v. Gay, 158 Cal. 27, 109 Pac. 879. (36 Cal. App. 585) UNION MACH. CO. v. CHICAGO BONDING & SURETY CO. (Civ. 2222.) (District Court of Appeal, First District, California. March 26, 1918.) 1. BAILMENT 18(3)-LIEN FOR REPAIRS POSSESSION-STATUTES. Under Civ. Code, §§ 3049, 3051, providing for liens on personal property, where machine company repairs a dredger, and constructs new parts therefor, its lien for repair charges and price of new parts is dependent upon company retaining possession of the dredger. 2. GUARANTY 16(1)-CONSIDERATION-RELINQUISHMENT OF LIEN. Where a machine company does repair work on, and furnishes new parts for, a dredger, and without receiving payment therefor gives up possession of dredger upon guaranty of payment by a bonding company, the relinquishment of the lien is sufficient consideration for the guaranty. 3. GUARANTY 16(4)-CONSIDERATION-EXTENSION OF TIME FOR PAYMENT. Extension of time of payment was a sufficient consideration for the guaranty. 4. COSTS 260(1)—Damages FOR FRIVOLOUS APPEAL. Where an appeal is taken obviously for purpose of delay, the court may assess damages for the prosecution of a frivolous appeal. Appeal from Superior Court, City and County of San Francisco; Bernard J. Flood, Judge. Action by the Union Machine Company, a - corporation, against the Chicago Bonding & Surety Company. Judgment for plaintiff, and defendant appeals. Affirmed. Watt, Miller, Thornton & Watt, of San Francisco, for appellant. Cushing & Cushing and Wm. S. McKnight, all of San Francisco, for respondent. KERRIGAN, J. This is an appeal from a Judgment in favor of the plaintiff upon a guaranty executed by the defendant. plaintiff to perform the balance of the work upon the execution by the defendant of a written instrument by the terms of which the latter guaranteed the payment of all bills against the Western Reclamation Company for the work done on the dredger under the contract, the same to be paid at stated periods. [1-3] We do not doubt that the plaintiff had a perfect right to retain possession of the undelivered part of the work until the purchase price of all the work was paid. Civ. Code, §§ 3049, 3051. It follows that by the Idelivery of the articles in question without receiving payment, in reliance upon the security of the guaranty, plaintiff suffered a detriment which was a good consideration for the guaranty. Moreover, at the time and as a part of the transaction just noted plaintiff agreed to extend the time of payment for the articles mentioned in the contract, which we think furnished an additional and distinct consideration for the guaranty sufficient of itself to support the same. [4] We cannot escape the conviction that the present appeal was not taken in good faith, but for the purposes of delay, and that the court should exercise its power of imposing a penalty upon the appellant for what it deems an abuse of the right of appeal. The judgment is affirmed, and it is ordered that the appellant pay to the respondent the sum of $50 as damages for the taking and prosecuting of a frivolous appeal. We concur: ZOOK, Judge pro tem.; BEASLY, Judge pro tem. (36 Cal. App. 601) BORBA et al. v. DE MELLO. (Civ. 2341.) (District Court of Appeal, Second District, California. March 26, 1918.) APPEAL AND ERROR 760(1)-BRIEFS-SUF FICIENCY. One presenting his appeal by the alternative method must print in his brief such portion of the record as he desires reviewed, as required by Code Civ. Proc. § 953c, and references to the transcript are insufficient. Appeal from Superior Court, Tulare County; J. A. Allen, Judge. Action by Constantino V. Borba and others against Jose De Mello. Judgment for plaintiffs, and defendant appeals. Affirmed. The appeal is without merit. The facts are briefly these: Plaintiff entered into a contract with the Western Reclamation Company to make certain repairs to and to construct new parts for a dredger. Part of the work under the contract had been performed, and plaintiff was entitled to the contract For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes Bradley & Bradley, of Visalia, for appellant. G. W. Zartman, of Tulare, for respondents. PER CURIAM. Defendant in this case appeals from an adverse judgment, and pre sents his appeal by the alternative method. [his employers. In doing so he lost his hold In the briefs filed by counsel no attempt is and fell, and was killed. Upon these facts made to comply with the provisions of sec-it must be held that the death of Higgins tion 953c, Code of Civil Procedure, which re- did not take place in the course of his emquire that the parties in presenting an ap- ployment; nor was he at the time of the acpeal by the method mentioned shall print incident performing any service growing out their brief such portions of the record as of or incidental to his employment, nor actthey desire to call to the court's attention. ing within the course thereof. Fitzgerald Numerous references are made to the pages v. Clarke & Son, 1 B. W. C. C. (Eng.) 197. of the transcript filed, but it has been repeatedly held that the appellate courts will not examine the transcript documents in order to determine whether there is merit in the contentions made by the appellant. Many opinions of this court and the Supreme Court reiterate the rule. A collection of the cases so holding will be found grouped in the case of Barker Bros. v. Joos et al., 171 Pac. 1085. Not having properly before us sufficient of the record to illustrate the various conten-diate employment than the scaffolding from tions made on behalf of the appellant, we are compelled to hold that no error is shown as against the judgment. The judgment appealed from is affirmed. (36 Cal. App. 582) Where one employed as a bolter-up within the hull of a ship in course of construction left his employment to go to lunch, but instead of going the usual safe way chose another dangerous way, whereby he was killed, he was not in the course of his employment within the Workmen's Compensation Act. Proceedings by Minerva Higgins against the Moore & Scott Iron Works and others for compensation for the death of Michael Higgins, deceased. There was an award by the Industrial Accident Commission, and defendants petition for a writ of review. Award annulled. Rehearing denied by Supreme Court; Angellotti, C. J., and Lorigan, J., dissenting. Redman & Alexander, of San Francisco, for petitioners. Christopher M. Bradley, of San Francisco, for respondents. PER CURIAM. The award of the Industrial Accident Commission in this case must be annulled upon the following considerations: Michael Higgins, employed as a bolter-up within the hull of a ship in the course of construction at the Moore & Scott Iron Works, left his employment for the purpose of going to his lunch; he went by an unusual route, and undertook to go down a scaffolding and ladder on the outside of the shipa means not intended for his use in leaving the ship at any time-another and perfectly safe method of exit having been provided by The findings of the commission to the effect that he might have been leaving his work for the purpose of getting more bolts for use therein, or for the purpose of getting fresh air, seem to us to rest upon nothing but conjecture. There is no evidence in the record to sustain them. The fresh air, if he needed it, could have been obtained in a perfectly safe place upon the deck of the vessel, and nearer to the point of his imme which he fell, and there seem to have been no bolts or other material necessary to his work to be obtained at the place toward which he was going. It is certain from this record, it seems to us, that he was, as has been said, simply abandoning his work before the hour when he was permitted to leave it. The award is annulled. Evidence held sufficient to support a conviction of perjury. 3. CRIMINAL LAW ~553 FINDINGS OF The jury in a criminal case has the right to entirely discredit the testimony of defendant and another, and to base its verdict on other evidence which it considers more trustworthy. 4. CRIMINAL LAW 730(1)-MISCONDUCT OF COUNSEL-ADMONISHING THE JURY. Where, in perjury case, prosecuting attorney improperly referred in argument to matters in the case where the offense was alleged to have been committed, on defendant's motion to admonish the jury, a statement of the court, "I think I will take the view of the defendant, and instruct the jury to disregard that part of it," was a sufficient admonition, especially where the matter referred to was known to the jury. 5. CRIMINAL LAW SENTENCES. 1207 INDETERMINATE Where an offense was committed before the indeterminate sentence law took effect, an indeterminate sentence cannot be given. [2, 3] The next, and main point urged by of the evidence to sustain the verdict. The appellant for a reversal is the insufficiency verdict of the jury is that Hill, in testifying in the case of People v. Boling that Boling stayed with him in his camp at Hub on the night of December 6, 1915, testified falsely. Appeal from Superior Court, Fresno Coun- In reaching this conclusion the jury had bety; H. Z. Austin, Judge. A. J. Hill was convicted of perjury, and he appeals. Remanded, with directions to give proper sentence. Burns & Watkins and E. A. Williams, all of Fresno, for appellant. U. S. Webb, Atty. Gen., and John H. Riordan, Deputy Atty. Gen., for the People. PER CURIAM. The defendant was convicted in the superior court of Fresno county of perjury, and an indeterminate sentence of imprisonment in a state penitentiary was imposed upon him. He appeals from the judgment and from an order denying him a new trial. fore them evidence of the following facts among others: One Boling was informed against and tried in the superior court of Fresno county for the larceny of certain mules. Upon that trial, in attempting to establish an alibi, he produced Hill, the present defendant, as a witness in his behalf, who testified that Boling passed the night of December 6, 1915, with him in his tent at a little station called Hub, where he testified he was camping at the time. It appears that Hub is a very small community containing but a few inhabitants. At the trial of the present case the prosecution called as witnesses a number of the residents of Hub, who testified to Hill's presence there at the end of December and the beginning of January, and that they had not seen him there prior to that time. The owner of the pasture in which Hill camped during his stay at Hub testified that the only time he saw The points insisted upon for a reversal of the judgment and order are that the court erred in overruling the demurrer to the information; insufficiency of the evidence to sustain the verdict; misconduct of the district attorney by which the defendant was prevented from having a fair and impartial trial; and that the court erred in not deter-dez, near whose house the defendant was mining the period of the defendant's con finement. [1] Considering the first point raised, it appears that the information sets forth, among other things, that at a certain time in the superior court of the county of Fresno there was on trial a certain action in which the people of the state of California were plaintiff and Clarence C. Boling was defendant, and that it was then and there material to know in said action where the defendant Boling was on the night of December 6, 1915, and whether or not said Boling at said time time stayed all night with Hill, the defendant in this case, at a place known as Hub. It is claimed that this is not a sufficient setting forth of the controversy or matter in respect to which the offense was committed to comply with the provisions of section 966 of the Penal Code. We think this statement of the indictment was a sufficient presentation of the matter in which it is charged that Hill committed the perjury complained of. The purpose of the requirement of setting forth the substance of the controversy or matter in which the perjury is alleged to have taken place is to inform the defendant of the offense with which he is charged, and this is as effectually done by the statement above given as if the whole proceedings of the trial had been incorporated in the information. The demurrer to the information on this ground was properly overruled. Hill there was after December 27th. To the same effect is the testimony of Joe Fernan camped, and who witnessed the arrival of Hill at Hub. Another witness testified to a horse trade with Hill at Hub on January 8th, and that Hill stayed at Hub but a few days, and in any event not more than ten days. This testimony is sufficient to warrant the jury in finding that Hill himself was not at Hub on December 6th, and that consequently Boling did not camp there with him on that night, even though there was contradictory evidence given by Boling and the defendant. The fact that the claim of defendant and Boling that the latter was at Hub on the night of December 6th was made at Boling's trial in an endeavor to relieve him of the charge of grand larceny was before the jury. It was also before them that Boling gave testimony contradictory of his claim that he visited Hub in December, and that he also stated a few days after December 6, 1915, that he passed that night in a barn. The jury had the right-which it evidently exercised-to entirely discredit the testimony of Boling and the defendant, and to base its verdict on other evidence which it considered more trustworthy. [4] The next contention of the appellant is that the district attorney was guilty of misconduct during the trial by which the defendant was prevented from being fairly and impartially tried. Regarding this matter the record shows that the prosecuting officer, during his argument to the jury, referred to some evidence contained in a tran For other cases bee same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes |