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and whether Fleming died from the failure of, entitled to the moneys as against the survivor, a weak heart, or whether the heart collapsed where the intent to provide for her was clearly as a result of the action of the gas. Dr.

manifest. Gibbon, the medical adviser of the Industrial 2. BANKS AND BANKING 301(1) JOINT

ACCOUNTS-SURVIVORSHIP. Accident Commission, gave it as his opinion

Where deceased deposited money in savings that the condition stated by the attending bank to joint account of himself and another, physicians reasonably showed that death payable to their survivor, further provision in was due to the operation, and added that deposit agreement that "the parties agree to bethis opinion was not based upon possibili- of survivorship, when the contract was con

come partners" therein did not affect the right ties, but upon the probabilities of the case. strued as a whole. He believed that the death was caused by the condition produced by the anæsthetic, or Appeals from Superior Court, Alameda operation, or both. He admitted that other County ; W. H. Thomas, Judge. causes might operate to cause the accumu- Two actions by James D. Halsted and othlation of gas, but, after examining the entire ers against the Central Savings Bank, subrecord, including the testimony of the other stituted for the Union Savings Bank, and doctors, and having all the facts available Anna M. Collins, and against the First Savbefore him, he stated that no other factor ings Bank and Anna M. Collins. Judgment was disclosed by the record which might in each case adverse to plaintiffs, and they have produced the condition referred to ex appeal. Both judgments affirmed. cept the anæsthetic and the surgical opera- O'Neill & O'Neill and Chapman & Trefetion.

then, all of Oakland, for appellants. HarIt is conceded that other causes moy be ry E. Leach and Abe P. Leach, both of Oakfollowed by an accumulation of gas in the land, for respondents. stomach, and also that the heart might have collapsed from natural causes, and counsel BEASLY, Judge pro tem. These two cases for petitioner therefore urges that the evi- arose out of the deposit of certain moneys dence is not sufficient to sustain the finding in the defendant banks by James Mandeville upon this point. But Dr. Gibbon may be Halsted, deceased, in the names of himself said, in the language of the Supreme Court and his foster sister and housekeeper, Anna in Santa v. Industrial Accident Commission, N. Collins. 165 Pac. 689, to have been "giving what on the facts before him and in the light of med- ceased deposited with the Union Savings

On the 8th day of March, 1913, the deical science, appeared to be the most prob Bank the sum of $12,915.87, and at the time able explanation of the event." We can signed with Mrs. Collins an agreement relattherefore see no distinction between that case and this, and, besides, the law does not ing to this deposit which in substance pro

vided that all moneys then on deposit or at require demonstration, but only that degree of proof which produces conviction in an un- any time thereafter to be deposited by either

of them to the credit of this account were prejudiced mind, and surely no unprejudiced mind, reading the statements of these physi- to be received by the bank on condition that cians as to the manner of this man's death, the amounts thereof and all dividends therecould come to any other reasonable conclu- on should be paid by the bank to the deposision than that Fleming died as the result of tors, or either of them, or to the survivor of this surgical operation. The commission them, or to the personal representatives or found in accordance with Dr. Gibbon's opin assigns of such survivor, without reference ion on this point, and this finding in the to the original ownership of the moneys. state of the evidence we may not disturb.

This deposit was made in the names of For the reasons given, the petition is dis James M. Halsted and Mrs. Anna Collins. missed.

Halsted at the time of making this deposit

was in perfect health. He told Mrs. Collins, We concur: ZOOK, Presiding Judge pro as she testified in response to questions by tem.; KERRIGAN, J.

appellants' attorney, that this money was for

her; that he wanted her to have it just as (36 Cal. App. 500)

soon as anything happened to him; that he HALSTED et al. v. CENTRAL SAV. BANK gave it to her, and it further appeared that et al.

what he meant by "anything happening to

him" was his death. Of another witness, Mr. SAME V. FIRST SAV. BANK et al.

Furniss, he asked whether, in the event of (Civ. 2302, 2304.)

his making a joint account in the bank, there (District Court of Appeal, First District, Cali- would be any question about Mrs. Collins getfornia. March 12, 1918. Rehearing Denied

ting the money if anything should happen to by Supreme Court May 9, 1918.)

him, and Mr. Furniss replied that there was 1. BANKS AND BANKING Ew301(1)-JOINT AC- no question about it. He told the witness COUNTS-SURVIVORSHIP. Where deceased deposited money in savings

De Pue that he had just been down to the bank to joint account of himself and another, bank and turned over or transferred a book payable to their survivor, his heirs were not carrying a $10,000 deposit to Mrs. Collins,

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

and he added, “Now, if anything happens to y of the following cases: Estate of Harris, 169 me Anna is provided for."

Cal. 725, 147 Pac. 967; McCarthy v. Holland, The deceased suffered a paralytic stroke 30 Cal. App. 495, 158 Pac. 1045; McDougald in the month of March, 1911, and died on the v. Boyd, 172 Cal. 753, 159 Pac. 168; Waters 25th day of October, 1914. There seems to v. Nevis, 31 Cal. App. 511, 160 Pac. 1081; and have been no change in the account until the numerous other cases which have been deday previous to his death, when Mrs. Collins cided by the Supreme Court and by this transferred the account to her own name. court in which similar instruments have been

The court found that the claim to these construed. funds made by the plaintiffs, as executors of [2] The expression that "the parties agree Mr. Halsted's will, was without foundation to become partners" in the case of the First and invalid ; that the estate of the deceased Savings Bank account, when this agreement had no interest in the money, and that the is held "by its four corners" and read and same was the sole and separate property of construed as a whole, does not change its Mrs. Collins, to the possession of which she meaning from that given it by the trial court. was entitled. "It was conceded at the argu- The intention is plainly the same as in the ment that the only difference between the case of the Union Savings Bank, and we are facts of the case against the Union Savings not disposed to split hairs over definitions of Bank and the companion case against the words, but to hold that the intention so plainFirst Savings Bank is in the language of ly indicated by all the acts and words of Mr. the agreement signed at the time the deposit Halsted shall be carried out. was transferred to the account of Mr. Hal- The judgment is affirmed in each of the sted and Mrs. Collins. In the case of the cases above entitled. First Savings Bank this agreement authorized and directed the corporation to open an We concur: LENNON, P. J.; KERRIaccount in the names of James M. Halsted |GAN, J. and Anna Collins, payable to either or the survivor, and by this instrument the two

(36 Cal. App. 816) persons named agreed with each other to become and be partners in the ownership of the HALSTED et al. v. OAKLAND BANK OF

SAVINGS et al. moneys and of all interest thereon and all other moneys to be deposited to said ac

SAME V. CENTRAL SAV. BANK et al. count; and they agreed with each other that

(Civ. 2301, 2303.) either and each of them and the survivor of (District Court of Appeal, First District, Calithem might at any and all times draw and

fornia. March 12, 1918. Rehearing Denied

by Supreme Court May 9, 1918.) receive from the bank the whole or any part of the money, and empowered each to sign

Appeals from Superior Court, Alameda Countheir respective names to any receipt, check, ty; W. H. Thomas, Judge.

Actions by James D. Halsted and others or voucher for the money so drawn.

against the Oakland Bank of Savings and an[1] The deceased was a man of few words other, and by James D. Halsted and others apparently, and he said little at the time of against the Central Savings Bank and another. making these changes in the deposits of his case appeal. Judgment in each case affirmed.

From the judgments rendered, plaintiffs in each funds; but, as was said in Booth v. Oakland

O'Neill & O'Neill and Chapp-an & Trefethen, Bank of Savings, 122 Cal. 19, 54 Pac. 370, all of Oakland, for appellants. Harry E. Leach there can be no doubt of the intention of Mr. and Abe P. Leach, both of Oakland, for respondHalsted in this matter, and that intention ents. should be carried out if the law will permit

PER CURIAM. The facts of these two cases it. We do not deem it necessary to discuss are such as to present the same question that we the writings made for the purpose of giving a have this day decided in James D. Halsted et al. particular character to these deposits, or the y. Central Savings Bank, 172 Pac. 613, num

bered in this court No. 2302. In all the cases facts of these cases at length. The facts the plaintiffs, as executors of the last will of showing an intention on the part of Mr. Hal-James M. Halsted, deceased, are seeking to essted to create a trust in favor of Mrs. Col- tablish an interest in certain savings bank de lins in these funds are far stronger than but in which he had created an interest in fa

posits belonging to the deceased in his lifetime, were the facts in the case of Booth v. Oak- vor of Anna N. Collins amounting upon his land Bank of Savings, supra; and the find- death to absolute and sole ownership. ings of the court and the evidence support

Upon the authority of the above-mentioned ing them bring the cases clearly within the No. 2302, the judgment in each of these cases

case of Halsted et al. v. Central Savings Bank, ruling in that case, and also within the rule is affirmed.

(36 Cal. App. 531)

total number of shares of stock outstanding SOUTHERN CALIFORNIA IRON & STEEL at the time in question and to substitute an CO. v. MAIER. (Civ, 2115.)

allegation conforming to finding No. 6. It (District Court of Appeal, Second District, Cal- seems to be true, according to a quotation ifornia. March 15, 1918.)

from the transcript as made by them, that PLEADING 380 - EVIDENCE - ADMISSIBIL- the court allowed the parties to amend their ITY. In action on a corporation debt against a in the matter." But the more complete quo

pleadings to conform “to the facts and proof stockholder, where upon the allegations of the complaint as they stood admitted there was notation given by counsel for appellant limits issue as to the number of shares the corpora- the amendment made at the trial to the fol. tion had outstanding when the debt was incur- lowing: red, plaintiff was not entitled to raise such issue by introducing evidence contradicting the

“That the plaintiff amends and alleges the conallegations of the complaint as to the number tract to have been made on August 14th, and of shares.

that the answer is amended to show that the

defendant alleges that he had no stock on that Appeal from Superior Court, Los Angeles date." County; Wm. D. Dehy, Judge.

Counsel for respondent do not suggest that Action by the Southern California Iron & any proof was made on the subject before Steel Company against Edward R. Maier. us, except that they introduced in evidence From judgment for plaintiff, defendant ap- the articles of incorporation of Maier Pier peals. Reversed.

Company, executed eight days before the A. L. Abrahams, of Los Angeles, for ap making of the corporation's contract with pellant. A. P. Michael Narlian and N. B. the plaintif, with the statement made by Nelson, both of Los Angeles, for respondent. counsel that, as shown by those articles, 5

shares of the stock of the corporation were CONREY, P. J. The defendant appeals subscribed, of which the defendant Maier from a judgment entered against him in the subscribed for 1 share.. They admit, howsum of $171.40 as a stockholder in Maier Pier ever, that these articles "were not copied inCompany, a corporation, on account of a con- to the record by the reporter, but this no tract whereby merchandise was sold to that doubt was through an oversight on his part.” corporation at the agreed price of $857.04. There has been no suggestion of diminution

There is only a typewritten transcript of of the record, and it does not appear that the record. The quotations from pleadings respondent made any effort to have the recand from evidence, as printed in the briefs, ord completed so as to have presented before are less complete than they should have been this court this evidence which is vital to his But by piecing together a scrap found in one case. However, we are of the opinion that brief with other scraps found here and there upon the allegations of the complaint, as they in the other briefs, together with positive stood admitted by the defendant, there was admissions of fact by counsel, we find enough, no issue upon the subject of number of although barely enough, material for a deci- shares of the corporation then outstanding. sion on the merits. It is a dangerous prac- The plaintiff was not entitled to raise such tice for attorneys in preparing their briefs an issue by introducing evidence, to which to neglect the provisions of section 953c, Code defendant duly objected, contradicting the of Civil Procedure. We have referred to this allegations contained in its own complaint. matter in many recent decisions.

The judgment is reversed. It was alleged in the complaint "that at the time said debts were contracted, the to- We concur: JAMES, J.; WORKS, Judge tal number of shares of the capital stock of pro tem. said corporation, Maier Pier Company, is

(36 Cal. App. 512) sued, subscribed and outstand

77,941 shares." Without denying this allega

Ex parte CORREA. (Cr. 599.) tion, the defendant denied that at the time (District Court of Appeal, Second District, Calimentioned he was a shareholder in the cor

fornia. March 14, 1918.) poration, and alleged that at that time he OBSCENITY Owl1-COMPLAINT-SUFFICIENCY.

Under Pen. Code, $ 311, providing that evhad no stock therein. Nevertheless the

ery person who willfully and lewdly exposes his court, in finding No. 6, declared:

person or the private parts thereof in any pub"That at the time said contract was made lic place, or in any place where there are pressaid defendant Edward R. Maier was the owner ent other persons to be offended or annoyed, is of 1 share of stock, and that the total number guilty of a misdemeanor, a complaint charging of shares of stock subscribed for at that time that defendant at the time and place named did was 5."

"willfully and unlawfully, expose his person," If appellant is right in his contention that etc., was insufficient, in that it did not allege

that the acts were done “lewdly." finding No. 6 is unsupported by any evidence, the judgment must be reversed. Counsel for In the matter of the application of Jose respondent contend that the pleadings were Correa for a writ of habeas corpus. Granted, amended at the trial in such a manner as to and applicant ordered discharged from cuseliminate the above-stated allegation as to tody.

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

was

N. D. Meyer, of Santa Ana, for petitioner. I will not be disturbed, in the absence of abuse L. A. West, Dist. Atty., and Arthur E. Koep- as to the amount to be awarded. sel, Deputy Dist. Atty., both of Santa Ana,

Appeal from Superior Court, Alameda for respondent.

County; J. O. Moncur, Judge.

Action by James A. Johnston against HerPER CURIAM. Habeas corpus. Jose Cor- man Murphy. Judgment for plaintiff, and rea is in the custody of the sheriff of the defendant appeals. Affirmed. county of Orange under a commitment issued out of the justice's court of Anaheim town

Edward C. Harrison and Maurice E. Har. ship, Orange county. In that court Correa rison, both of San Francisco, for appellant. was convicted of an alleged misdemeanor pur

Daniel O'Connell, of San Francisco, for resuant to a complaint which charged that the spondent, defendant at the time and place named did "willfully and unlawfully expose his person,"

BEASLY, Judge pro tem. This is an action etc. It is admitted that by the complaint it begun December 31, 1914, on a promissory was attempted to charge the offense describ note given by. defendant to plaintiff. The ed in section 311 of the Penal Code. That principal defense is that the note was secured section, so far as applicable to this case, is as by a mortgage, and that the action should follows:

have been one of foreclosure. “Every person who willfully and lewdly, ei

The note was dated January 23, 1909. The ther: One. Exposes his person, or the private alleged mortgage consists of a letter from the parts thereof, in any public place, or in any defendant to plaintiff, the body of which place where there are present other persons to reads as follows: be offended or annoyed thereby; • is guilty of a misdemeanor."

"I hereby certify that there is due to you the

sum of $4,000. Said sum is secured by a lien It is manifest, upon an inspection of the upon that certain land comprising 937 acres complaint, that it failed to charge the offense in the rancho Los Positos, being the same land described in the statute. It was not alleged conveyed to me by Louis Aurrecoechea. The inthat the acts described were done "lewdly," debtedness is a prior claim to any lien I may nor were any words of equivalent meaning

The letter was not acknowledged nor reused in the complaint. An essential element

corded of the crime being thus omitted, the complaint did not state a public offense.

The transactions between the parties of It is ordered that the prisoner, the said which this letter formed an incident may be Jose Correa, be discharged from custody. stated more at large as follows: The defend

ant, Murphy, during or perhaps before the

year 1902, acting for one Aurrecoechea, bor(36 Cal. App. 469)

rowed $4,000 from plaintiff, and Aurrecoechea JOHNSTON V. MURPHY. (Civ. 2324.)

executed a mortgage on a ranch belonging to (District Court of Appeal, First District, Cali- him to secure payment of the loan. In 1904 fornia. March 7, 1918.)

Murphy chased the ranch from Aurrecoe1. MORTGAGES 40 — WHAT CONSTITUTES

chea, and on July 19, 1906, he conveyed it to FORM.

his wife. This deed was not recorded until A letter accompanying a note, which read, June 30, 1908. Some time in the early sum"This is to certify that there is due you' a sum of $4,000 secured by a lien upon certain induced him to sign what he, Johnston, sup

mer of 1908—so Johnston testified-Murphy land," when not accepted or received or treated by the recipient as a mortgage, and in the ab- posed was a release of a part of the ranch sence of showing that it was so intended by the from the lien of the Aurrecoechea mortgage, sender, would not be considered a mortgage.

but what turned out to be a deed of the en2. EQUITY 65 (2) CLEAN-Hands Doc-tire ranch to Murphy. This deed was not re

Where defendant deceived the mortgagee in- corded until November, 1906. Johnston did to giving him a deed for the land and then deed not learn until January 23, 1909—the date of ed it to his wife, he was in no position to de- the note in suit-of the true character of the feat recovery on the note later given, on the ground that an instrument, not on its face a paper he had signed in 1906, namely, of the mortgage, was such in fact, and that the suit deed to Murphy of the whole ranch, nor that should have been for foreclosure thereof, espe- this deed released the ranch from the lien of cially where the bar of limitations could have the mortgage; nor was anything said by Mur. been invoked against a later suit on the note, phy even at that time about the deed to Mrs. since unconscientious conduct, even without fraud or illegality, precludes resort to equity. Murphy, and it appears from Johnston's evi3. EVIDENCE Om588-CROSS-EXAMINATION-dence that although the letter which defendRECONCILING CONFLICTING STATEMENTS.

ant now seeks to have construed to be a mortWhere statements of witness on amination, though apparently contradicting his gage is dated November 1, 1906, it was actual. statements on direct examination, were capable ly received by Johnston through the mail and of reconciliation therewith, it was the duty of after the execution of the note in suit. It also the court to reconcile them.

appears that Johnston kept this letter bụt 4. APPEAL AND ERROR Om984(5)—REVIEW-made no reply to it; that is to say, it does ATTORNEY'S FEES-DISCRETION.

In action on note empowering court to fix not appear that he accepted it or treated it attorney's fees, the court has a discretion which as a mortgage.

TRINE.

cross-ex

AMINATION

[1, 2] Upon the facts, the defendant de to have been abused in this case considering sires to defeat recovery on this note by claim- the work of counsel evidenced by the record. ing that the letter in question is a mortgage, Judgment affirmed. and argues that if it is not as a matter of law such, it should be so construed in equity. We concur: LENNON, P. J.; KERRIWe cannot agree with him, for the reason, GAN, J. among others, that it is evident that Johnston did not receive or accept or treat it as a

(36 Cal. App. 511) mortgage; nor does it appear upon its face, Ex parte SCHWITALLA. (Cr. 597.) nor from the surrounding circumstances in (District Court of Appeal, Second District, Calevidence, that Murphy ever so intended it.

ifornia. March 13, 1918.) Counsel suggests that it is "an imperfect ato i 1. CRIMINAL LAW mm 238-PRELIMINARY Extempt to create a mortgage" which will be AMINATION-PROBABLE CAUSE-UNCORROBOconsidered a mortgage in equity, but it seems RATED ACCOMPLICE TESTIMONY. to us, in view of the defendant's colduct

The uncorroborated testimony of an accomthroughout these transactions, that he is in cause for the magistrate's action in holding ac

plice may be sufficient to establish probable no position invoke the aid of equity to have cused to answer for trial, and in committing this paper declared a mortgage, a result him. which would defeat the collection of the note 2. CRIMINAL LAW 238–PRELIMINARY Exin this action. And it could not be collected

- UNCORROBORATED ACCOMPLICE

TESTIMONY. in a new action should the defendant plead While a defendant cannot be convicted upon the bar of the statute of limitations. It is the uncorroborated testimony of an accomplice, quite plain from the evidence that the trial the testimony of an accomplice is sufficient to court decided that Murphy had deceived that defendant has been guilty of the offense

make it appear that there is a "probability" Johnston into releasing the Aurrecoechea charged. mortgage in full, and that the latter was not

Application by Alexis M. Schwitalla for a undeceived until after the note sued on here writ of babeas corpus. Writ discharged, and was executed. At that time Murphy's mort. petition remanded. gage would have been of no value, for Mrs. Murphy owned the property, and Murphy re

Harry A. Chamberlin, of Los Angeles, for

petitioner. Thomas Lee Woolwine, Dist. fused to let her even sigh the note. Upon these facts Murphy cannot be permitted to Atty., and Asa Keyes, Deputy Dist. Atty.,

both of Los Angeles, for respondent. call upon a court of equity and conscience to indirectly relieve him from the payment of a just debt by holding this mere letter to be a asks to be discharged from the custody of

JAMES, J.
Habeas corpus.

Petitioner mortgage. “It is not alone fraud or illegality the sheriff of Los Angeles county to which which will prevent a suitor from entering a he was heretofore committed by a magiscourt of equity; any really unconscientious

trate. A complaint in sufficient form, charg. conduct connected with the controversy to which he is a party will repel him from the ing defendant with the crime of arson, was

filed before the magistrate and after exam. forum whose very foundation is good conscience.” 1 Pomeroy's Eq. Juris. (3d Ed.) the order holding defendant to answer for

ination had, at which testimony was taken, $ 404.

trial to the superior court was made and (3) Defendant claims that the amount of

commitment issued. interest included in the judgment is excessive. Without going into the computation dence was insufficient to establish probable

[1] One contention urged is that the evi. here it is sufficient to say that we find no error in the amount allowed by the trial court cause for the holding of the defendant. The

principal evidence against the defendant was under this head. The plaintiff testified clear- furnished by an accomplice in the alleged ly as to the payments, and they were not discrime. This accomplice very fully narrated puted. It is claimed, however, that the plain the acts which the defendant did and which tiff contradicted this testimony on cross-ex

were participated in by the witness, all of amination; but his testimony on cross-exam-, which showed that the fire was the result of ination was susceptible of reconciliation with a deliberate plan of the defendant. There that on direct examination, and it was ac was the further testimony of a witness who cordingly the duty of the court to reconcile was not an accomplice, wherein it was shown this testimony. This it patently did. that the defendant, some months prior to

[4] The judgment provides for $700 attor- the time the building was burned, solicited ney's fees, which defendant objects is ex- the co-operation of that witness to the end cessive. Under the provisions of the note the that the building which was ultimately deduty of fixing a reasonable fee for plaintiff's stroyed should be set fire to. We are not attorney rested upon the trial court; and its prepared to concede, notwithstanding the judgment in that matter will not be disturbed holding made by the Supreme Court of Neunless its discretion has been abused. Berke- vada in Ex parte Oxley, 38 Nev. 379, 149 ley, etc., v. Miller, 23 Cal. App. 315, 137 Pac. Pac. 992, that the uncorroborated testimony 1101. The court's discretion does not seem of an accomplice may not be sufficient to es

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

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