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of the electors might prevent an ordinance from becoming operative for a long period of time after the expiration of the time provided by the charter when the same should become operative. The same reasons do not apply to the initiative; that provides for the inauguration of new and independent legislation. No rights are affected, and no steps required to be taken, until a petition of the requisite kind and character is on file. Interested parties might indulge in petitions without number, amend without limitation, commence and recommence proceedings under section 198a, without disturbing public affairs in the least. But such would not be the effect, were the clause with reference to amendment to be construed as applying to the referendum.

It is certainly beyond question that the original petition filed in this instance was not in the manner and form prescribed by the charter. Each separate paper was not verified by one of the signers thereof, which being true it was of no effect as a protest under this section of the charter. The demand to amend is a tacit admission of the insufficiency of the original; otherwise no reason suggests itself why a sufficient paper should be amended, or that a court should by its order compel consent thereto. There being, then, on file no protest or petition as by the charter provided, at the expiration of 30 days from the approval of the ordinance, the ordinance became effective and operative, and no amendment and no steps of any kind or character thereafter taken by the electors, under section 198b, could disturb the operative character of this ordinance so in effect. We think the court below properly determined that the original petition was insufficient, and that the clerk was warranted in so certifying. Being so insufficient, the ordinance taking effect 30 days after its approval, the clerk had no duty to perform in connection with so-called amendments of original petitions thereafter filed with reference to such ordinance, and, that the ordinance having taken effect within the time provided by the charter, no authority or jurisdiction reposed in the city council to order an election under section 198b, through which the electors might annul the operative ordinance. Judgment affirmed.

We concur: JAMES, J.; SHAW, J.

(15 Cal App. 444) MERCHANTS' NAT. UNION v. BUISSERET et al. (Civ. 918.)

and at and about his last place of residence, that members of his family had informed persons attempting to make service that defendant was not at home, that he was not in the state, and that they would not disclose where he was, they sufficiently showed that defendant after due diligence could not be found within the state, and authorized an order for service by publication. [Ed. Note.-For other cases, see Process, Cent. Dig. §§ 108-120; Dec. Dig. § 96.*] 2. JUDGMENT (§ 17*)-PERSONAL JUDGMENT— NONRESIDENT.

Courts have no jurisdiction to render a ice by publication, unless property within the money judgment against a nonresident on servjurisdiction is held under a valid attachment at the time of the rendition of the judgment, in which case the judgment is considered valid satisfied out of the property so held. as a judgment in rem in so far as it may be

[Ed. Note. For other cases, see Judgment, Cent. Dig. §§ 25-33; Dec. Dig. § 17.*] 3. ATTACHMENT (§ 117*)—AFFIDAVIT-REQUI•

SITES.

Where an attachment affidavit recited that

the "judgment" was not sought to hinder, delay, or defraud any creditor of the defendant, but did not state that the "attachment" was not sought for that purpose, as required by Code Civ. Proc. § 538, it was insufficient to sustain the writ.

[Ed. Note.-For other cases, see Attachment, Cent. Dig. § 241; Dec. Dig. § 117.*] 4. ATTACHMENT (§ 141*)-ISSUANCE-DUTY OF CLERK.

While the clerk in issuing an attachment performs but a ministerial duty, he has no aufails to state the facts required by statute on thority to issue the writ where the affidavit which the writ exclusively depends.

[Ed. Note. For other cases, see Attachment, Dec. Dig. § 141.*]

Appeal from Superior Court, Los Angeles County; W. R. Hervey, Judge.

Action by the Merchants' National Union against A. P. Buisseret and another. From orders denying motions made by defendant Buisseret to vacate a default judgment and to dissolve an attachment, he appeals. Reversed.

Walter J. Horgan, for appellant. D. Joseph Coyne, for respondent.

JAMES, J. Defendant Buisseret appeals from orders of the superior court denying motions made by him to vacate a default judgment, and to dissolve an attachment. The action was brought to recover the sum of $5,241.04 from defendants for goods. wares, and merchandise sold to them. By the bill of exceptions is appears that both of the motions mentioned were presented at the same time. Among the grounds upon which the motions were made it was specified that the court had obtained no jurisdic

(Court of Appeal, Second District, California. tion over the defendant entitling it to render

Feb. 18, 1911.)

1. PROCESS ($ 96*)-ORDER OF PUBLICATIONAFFIDAVITS.

Where affidavits for an order for the publication of summons showed that search had been made for defendant within the city of L.

judgment against him, and that the affidavit upon which the writ of attachment was issued was insufficient to authorize the issuIt was specified as a ance of such writ. further objection to the validity of the judg

Anderson v. Goff,

ment that the service of summons was made | decrees to operate upon.
by publication thereof, and that the facts
stated in the affidavit upon which the order
for publication was based did not make out
a sufficient case authorizing the summons to
be so served. The files and records of the
case were used on the hearing of the mo-
tions, including the affidavit on attachment,
and the writ.

72 Cal. 72, 13 Pac. 73, 1 Am. St. Rep. 34; Blanc.
v. Paymaster Min. Co., 95 Cal. 530, 30 Pac.
765, 29 Am. St. Rep. 149; Brown v. Camp-
bell, 100 Cal. 641, 35 Pac. 433, 38 Am. St.
Rep. 314; De La Montanya v. De La Mon-
tanya, supra; Boring v. Penniman, supra.

[3] Defendant was entitled to have his motion to vacate the judgment granted if it appeared that no valid attachment had been

at the time the judgment was entered. The
affidavit on attachment furnished by the
plaintiff failed to state, as required by the
statute, that the "attachment" was not sought
to "hinder, delay, or defraud any creditor
or creditors of defendant." Code Civ. Proc.
§ 538. The affidavit did recite that the
"judgment was not sought
* to hin-
der, delay, or defraud any creditor or credi-
tors of said defendant." The affidavit was,
therefore, fatally defective and was wholly
insufficient to authorize the issuance of the
writ of attachment. "The right to an at-
tachment, and the mode of procedure for ob-
taining it, are the creatures of statute, de-
pending for their existence and regularity
upon the terms of the Code." Kohler v.
Agassiz, 99 Cal. 12, 33 Pac. 742.

[1] The affidavits, upon which the order for publication of summons was based, show-issued, and property levied upon thereunder, ed that search had been made for defendant Buisseret in the city of Los Angeles and at and about his last place of residence, that members of defendant's family had informed persons who were attempting to secure service of summons that Buisseret was not at home, that he was not in the state, and that the informants refused to tell where the said defendant was. As a part of the showing, affidavits of four deputy constables who had attempted to make personal service of summons upon defendant were submitted. The facts shown in the affidavits for publication of summons were sufficient to justify the court in finding, as it did, that defendant could not after due diligence be found within the state, and to support the order that the service of summons be made upon him by publication. Rue v. Quinn, 137 Cal. 652, 66 Pac. 216, 70 Pac. 732; People v. Wrin, 143 Cal. 11, 76 Pac. 646.

[2] The judgment entered against defendant was in form a personal one for the recovery of the amount of money sued for. Assuming that service by publication of summons against a defendant who is a resident of this state may authorize the entry of a personal judgment against him, the affidavits for publication of summons used by plaintiff here, and the order of court based thereon, made it appear that the defendant was not within the state of California at the time the order for publication was made,

[4] While it is true that the clerk performs but a ministerial duty in issuing the writ of attachment, he has no authority to issue such writ where there is no statement in the affidavit of the facts plainly required by the statute to be set forth therein. McCusker v. Walker, 77 Cal. 212, 19 Pac. 382.

As no valid attachment had been levied against property of defendant at the time the judgment was entered, and this fact was made to appear by the records and files of the court, defendant Buisseret was entitled to have his motion to set aside the judgment granted; and also his motion to vacate and dissolve the attachment.

The orders are reversed.

We concur: ALLEN, P. J.; SHAW, J.

and that he was a nonresident of the state. De La Montanya v. De La Montanya, 112 Cal. 101, 44 Pac. 345, 32 L. R. A. 82, 53 Am. St. Rep. 165; Boring v. Penniman, 134 Cal. 514, 66 Pac. 739. There was no jurisdiction under the showing made to authorize the entry of a purely personal judgment against JOHN M. C. MARBLE CO. v. MERCHANTS' Buisseret. Such a judgment could have no vitality or effect at all, except where it appeared that the plaintiff held property under a valid attachment at the time of its rendi- (Court of Appeal, Second District, California.

tion. If it was made so to appear, the judgment would be considered as one in rem in so far as it might be satisfied out of the property so held under attachment. There is clearly no authority for the entry of a money judgment against a nonresident upon service of summons by publication, where there is not shown to be property of such nonresident within this state, which the court has jurisdiction to cause its judgment and

(15 Cal. App. 347)

NAT. BANK OF LOS ANGELES.
(Civ. 868.)

Feb. 10, 1911. On Petition for Rehearing,
March 10, 1911.)

1. BANKS AND BANKING (§ 140*)—ASSIGN-
MENTS ($ 49*) — CHECKS BY DEPOSITOR —
RIGHTS OF HOLDER.

Under Civ. Code, §§ 3254, 3255, declaring that a check is a bill of exchange subject to the provisions affecting bills of exchange, the drawing of a check by a depositor in a bank is not an assignment of the deposit or any part thereof, and the holder of the check is a mere bearer of an order drawn by the depositor, so the bank failing to pay the check, though hav

For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep'r Indexes

ing sufficient funds, is liable only to the de- Los Angeles. From a judgment granting positor. insufficient relief, plaintiff appeals. Modified and affirmed.

[Ed. Note.-For other cases, see Banks and Banking, Cent. Dig. §§ 380-397; Dec. Dig. § 140;* Assignments, Cent. Dig. §§ 89-94; Dec. Dig. § 49.*]

2. BANKS AND BANKING (§ 134*)-RIGHTS AS BETWEEN BANK AND DEPOSITOR-COUNTERCLAIM.

Where one suing a depositor in a bank procures the service of an attachment on the bank, the bank must withhold for the satisfaction of plaintiff's demand sufficient money then owed the depositor if there is such money, but in ascertaining the amount it may deduct any matured indebtedness owing to it by the depositor which it could set up by way of counterclaim in case the depositor had sued for his deposit.

[Ed. Note.-For other cases, see Banks and Banking, Cent. Dig. §§ 353-374; Dec. Dig. § 134.*]

Oscar A. Trippet, for appellant. O'Melveney, Millikin & Stevens and Horace S. Wilson, for respondent.

JAMES, J. This appeal is taken from a judgment by which plaintiff was awarded certain relief, and which provided that neither party recover costs. The matters sought to be reviewed are presented on the judgment roll alone.

As found by the trial court, the facts are as follows: On February 8, 1909, one John T. Donnell delivered to plaintiff his check drawn upon the defendant bank for the sum of $2,685. The check was presented for pay3. GARNISHMENT (§ 105*)-RIGHTS OF PARTIES. ment on the following morning at the bank An attaching creditor merely acquires the and payment was refused, the bank giving rights of the debtor, and a plaintiff in garnishment is in relation to the garnishee substituted as a reason for the refusal that there was merely to the rights of his own debtor, and he not sufficient funds to the credit of Donnell may enforce no demand against the garnishee to cover the required amount. Thereupon which the debtor if suing could not enforce. [Ed. Note. For other cases, see Garnishment, Cent. Dig. § 216; Dec. Dig. § 105.*]

plaintiff brought suit against Donnell, and had a writ of attachment issued therein on February 13, 1909, which writ he caused to 4. BANKS AND BANKING (§ 134*)-RELATION be served upon defendant. Judgment was OF BANK TO DEPOSITOR -SET-OFF-STATrecovered on March 3, 1909, against Donnell

UTES.

5. BANKS AND BANKING (§ 134*)-RELATION OF BANK TO DEPOSITOR SET-OFF-STATUTES--"PERSONAL PROPERTY."

An assignment by one of several purchasers of real estate conveyed to a trustee with directions to sell and divide the proceeds among the several purchasers of his interest in the trust agreement to a bank in which he is depositor as security for a note is an assignment by way of a pledge of a chose in action constituting personal property within Code Civ. Proc. 17, and the bank notwithstanding section 726 may off-set its matured claim on the note against the deposit without proceeding to collect the security.

Under Code Civ. Proc. § 726, providing in favor of plaintiff for the sum of $2,697.02 that there can be but one action for the recov- and costs. Upon being served with the writ ery of any debt secured by mortgage, the right of attachment, defendant answered that it of a bank to set-off a matured indebtedness against the claim of a depositor or his creditor had in its possession the sum of $1,175.92 does not permit of an indebtedness secured by belonging to Donnell and subsequently dea mortgage being so used as an off-set. livered this amount of money to the sheriff, [Ed. Note.-For other cases, see Banks and who applied it on the execution which had Banking, Cent. Dig. §§ 353-374; Dec. Dig. § 134.*] been issued to secure satisfaction of plaintiff's judgment. Under proceedings supplemental to execution, plaintiff caused the defendant to answer further in court respecting the amount of Donnell's deposit as it stood at the time of the presentation of the check and the serving of the writ of attachment. Leave was thereafter obtained to bring suit against defendant to determine whether or not a greater sum should not have been accounted for by the latter. By the further findings of fact it appears that on the morning of February 9, 1909, there was credited to Donnell on general deposit with defendant the sum of $2,839.02; that at that time Donnell was indebted to the bank on a promissory note then due in the sum of $1,573.80; that at about the hour of 8:30 a. m. of February 9th the bank applied enough of Donnell's deposit credit to pay the note indebtedness so that when plaintiff's check was presented later in the day the deposit was insufficient to cover the amount required to cash it; that later, and before the writ of attachment was served, several checks for smaller amounts were drawn against the deposit by Donnell, so that, when the attachment was levied, there remained only the sum of $1,175.92 to Donnell's credit. Payment of the $1,500 note had been secured by the assignment to defendant by

[Ed. Note.-For other cases, see Banks and Banking, Cent. Dig. §§ 353-374; Dec. Dig. § 134.*

For other definitions, see Words and Phrases, vol. 6, pp. 5346-5358; vol. 8, p. 7753.]

On Petition for Rehearing.

6. TRUSTS (§ 65*)—RESULTING TRUSTS.
Where several persons contributed to the
purchase of real estate, the title to which was
conveyed to a trustee with directions to sell
and divide the proceeds among the purchasers,
a resulting trust arose in favor of the purchas-
ers on the invalidity of the trust.

[Ed. Note. For other cases, see Trusts, Cent. Dig. 94; Dec. Dig. § 65.*]

Appeal from Superior Court, Los Angeles County; George H. Hutton, Judge.

Action by the John M. C. Marble Company against the Merchants' National Bank of

ed indebtedness owing to it by Donnell, which it would have been entitled to set up by way of counterclaim, in the event Donnell had sued to recover the sum of his deposit. Zane on Banks and Banking, § 140; McKean v. German-Am. Savings Bank, 118 Cal. 340, 50 Pac. 656.

Donnell of an interest in a certain trust | right of the bank to first deduct any maturagreement, which will be noticed more particularly hereinafter. It is the contention of plaintiff that the application of the credit of Donnell from his general deposit, in extinguishment of the debt due on the promissory note, was unauthorized, and that it did not operate to defeat plaintiff's claim to sufficient of the deposit to satisfy its demand. It seems very clear that, if plaintiff acquired any right of action against the bank, it acquired such right only after service of the writ of attachment.

[3] An attaching creditor is clothed with no greater rights than the debtor himself. He stands in the shoes of the debtor, and any offset which might be urged against the debtor by the garnishee is equally available against the attaching creditor. "The suing out of a process in garnishment does not in any manner change the rights of the parties to the proceeding further than to transfer the right of the defendant to his creditor to proceed against the garnishee for the collection of the debt due to the principal defendant. It is a rule of universal application that the plaintiff in garnishment is, in his relation to the garnishee, substituted merely to the rights of his own debtor, and can enforce no demand against the garnishee which the debtor himself, if suing, would not be entitled to recover. * other effect of this rule is that the plaintiff is liable to be met by the garnishee on his own behalf with the same set-offs and other defenses that the garnishee might have interposed had an action been brought against him by his own creditor, the principal defendant in the garnishment proceedings." Shinn on Attachment, § 487; Drake on AtBolles on Modern Law of Schuler v. Israel, 120 U. S. 506, 7 Sup. Ct. 648, 30 L. Ed. 707.

[1] A check holder is a mere bearer of an order drawn by the depositor. The making and delivery of a check does not work as an assignment of the deposit fund or any part of it, and is not binding on the bank against which it is drawn until accepted by it. The modern authorities are generally to the effect that, even though a bank refuses payment, where the deposit is sufficient to cover the amount of the face of the check, it becomes charged with no liability to the bearer of the check. The bank is in such a case responsible to the depositor only and may be sued by him for damages. In brief, a bank is responsible and accountable to its depositor, and the depositor, in turn, to the persons to whom he issues his checks. In the case of Laclede Bank v. Schuler, 120 U. S. 511, 7 Sup. Ct. 644, 30 L. Ed. 704, the Supreme Court of the United States has said: "The question of how far and under what circumstances a check of a depositor in a bank will be considered an equitable assign-tachment, § 536; ment to the payee of the check of all or any Banking, p. 741; portion of the funds or deposits to the credit of the drawer in the bank is one which has been very much considered of late years in the courts, and about which there is not a unanimity of opinion. In this court it is very well settled that such a check, unless accepted by the bank, will not sustain an action at law by the drawee against the bank, as there is no privity of contract between them." See, also, Zane on Banks and Banking, § 146. By Civil Code, § 3254, a check is declared to be a bill of exchange, and by section 3255 of the same Code it is made subject to all of the provisions affecting bills of exchange, with certain exceptions which are immaterial to any question presented in this case. The rights of the holder of a bill of exchange in case of nonpayment on presentment are as have just been defined. We conclude, then, preliminarily, that, even though there was sufficient money to pay plaintiff's check to the credit of Donnell at the time the check was presented, no right of action against the bank accrued in favor of plaintiff.

[2] When the writ of attachment was served, however, its effect was to require defendant bank to withhold for satisfaction of plaintiff's demand sufficient, if there was such, of any money it then owed Donnell. In ascertaining this amount, it would be the

* An

[4] The right of a bank to set off a matured indebtedness against the claim of its depositor or his creditor does not, however, permit of an indebtedness secured by a mortgage being so used as an offset. Section 726 of the Code of Civil Procedure provides: "There can be but one action for the recovery of any debt, or the enforcement of any right, secured by mortgage upon real or personal property."

Cer

The

[5] It is the contention of appellant that the assignment to defendant by Donnell of his interest in the trust agreement was an assignment of an interest in real property and constituted a mortgaging thereof. tain real property had been transferred to a trustee by Donnell and eight others who had all contributed toward its purchase. trustee took title with directions to sell and dispose of the property and divide the proceeds among the several purchasers, including Donnell, who was to be awarded an eleven one-hundredths share of such proceeds. Donnell when he assigned to the bank as security for the payment of the $1,500 note his interest in this agreement assigned merely a chose in action, an interest in a fund of money to be realized in the future by the sale of real property. By the making of the trust agreement he had converted any un

made no other claim; there was no attempt to mortgage the interest of Donnell in the real property. As was said in the opinion filed, the assignment was an assignment of an interest in personal property given by way of a pledge and not as a mortgage.

(15 Cal. App. 459) PATTON v. KLEMMER. (Civ. 809.) (Court of Appeal, Third District, California. Feb. 23, 1911.)

BILITY

CY.

In an action to recover damages for an assault, evidence held to sustain a verdict for plaintiff.

divided interest in the real property which | ceeds of the sale of the property, if the he possessed into a right only to receive same was sold, and nothing more; the bank money in lieu thereof, and this right was undoubtedly personal property. "The words 'personal property' include money, goods, chattels, things in action, and evidences of debt." Section 17, Code Civ. Proc. This property was given as security by Donnell to the bank was by way of a pledge and not as a mortgage. As a pledgee, defendant would have the right to offset its matured claim on the $1,500 note against Donnell's deposit without proceeding to collect on the security. "The pledgee may recover the amount of his debt from the debtor by an 1. ASSAULT AND BATTERY (§ 35*)-CIVIL LIAindependent suit without foreclosing the ACTIONS EVIDENCE-SUFFICIENpledge, whereas the mortgagee can maintain but one action for the recovery of the debt, and that must be an action of foreclosure." Commercial Savings Bank v. Hornberger, 140 [Ed. Note.-For other cases, see Assault and Cal. 19, 73 Pac. 625. After applying suffi- Battery, Cent. Dig. § 51; Dec. Dig. § 35.*] cient money from Donnell's deposit to satis- 2. APPEAL AND ERROR (§ 699*)-RECORD-INfy the $1,500 note, the defendant had in its STRUCTIONS-REQUESTS FOR INSTRUCTIONS. The refusal of the trial court to give repossession the trust agreement and assign-quested instructions will not be considered ment thereof. These documents the trial where the record, while showing that some incourt by its judgment directed should be destructions were given, does not show how many, livered to plaintiff, when its judgment the case they were given. or on what subjects, or upon what phases of should have become final. Plaintiff sought by its action to recover a money judgment against defendant, and, while it may be that the judgment as entered awards more and different relief than plaintiff was entitled to under its complaint, plaintiff can scarcely complain of this fact. Assuming that the judgment was a proper one to be entered, there would seem, however, to be no authority for the condition placed upon it, to wit, that the recovery be had of the documents mentioned only when the judgment should have become final.

It is ordered that the judgment be modified by striking therefrom the words "upon this judgment becoming final." As so modified, the judgment is affirmed.

We concur: ALLEN, P. J.; SHAW, J.

On Petition for Rehearing. PER CURIAM. The petition of appellant for a rehearing is denied. The question as to whether or not the trust attempted to be created by Donnell and others was valid, we did not deem material to a decision of this case. [6] Of course, if the declaration of trust was invalid under the conveyance to the trustee, a resulting trust would have arisen in favor of Donnell and his associates who had contributed the purchase price of the real property; and, in that event, they might have demanded a reconveyance of their respective interests. The assignment to the bank did not purport to convey any interest in real property; it was not appropriate in form so to do, and the intent was clearly to the contrary; it was plainly an assignment of the right to share in the pro

[Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. §§ 2928-2930; Dec. Dig. § 699.*]

Appeal from Superior Court, Glenn County; John F. Ellison, Judge.

Action by John A. Patton against Lenus J. Klemmer. Judgment for plaintiff, and defendant appeals. Affirmed.

Seth Millington and W. T. Belieu, for appellant. F. H. Dam, for respondent.

CHIPMAN, P. J. This is an action to recover damages for an assault by defendant upon the person of plaintiff. The cause was tried by a jury and plaintiff had the verdict. Defendant appeals from the judgment entered upon the verdict, and from the order denying his motion for a new trial.

There is abundant evidence of the assault and of its permanent and injurious effects upon plaintiff's physical condition and to some extent upon his mental faculties. Defendant does not now contend that he did not assault plaintiff. He alleged in his answer and attempted to prove at the trial that plaintiff insulted him, "and by language and immediate demonstrations of force threatened an assault upon defendant," and that "for his proper protection and defense, and for no other reason, used such force and means as was necessary, and no more, to repel the assault which he reasonably apprehended was imminent and about to be made upon him by plaintiff." Defendant also alleged in his answer that he "delivered unto plaintiff certain sums of money, the same being for disputed rent, medical services, and all and singular the matters and things in controver

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