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$ 475.

sufficient testimony from other sources upon ERRORS REGARDED.

the matter.—Barlow v. Frink, 171 Cal. 165,

152 Pac. 290. 1, 2. Construction of section.

9. A judgment should not be reversed for 3-5. Burden of proof of error,

errors that do not affect the substantial 6-14. Harmless error.

rights of the parties.-Conaway v. Toogood, 15, 16. Invited error.

172 Cal. 706, 158 Pac. 200. 17-23. When reversal necessary.

10. Errors are harmless which consist in 1. Construction of section.-It is the duty

technical inaccuracies in the pleadings, and of the court to examine the entire record

findings that do not affect the merits.to determine whether prejudicial error has

Carrington v. Smithers, 26 Cal. App. 460, 147 been committed. The defendant's verified

Pac. 225. answer is a part of the record and may

11. Any errors committed by the court be considered.—Marshall v. Wentz, 28 Cal.

in receiving testimony can not be deemed App. 540, 153 Pac. 244.

to have been prejudicial to defendant's right 2. The recent amendment to section 442

to a fair trial, when, disregarding the inof article VI of the constitution, whereby

competent matter, enough remains in the appellate courts, in civil cases, are author

record to sustain the cause of action as ized, for certain indicated purposes, to ex

alleged in the amended complaint.--Tingey amine "the entire cause, including the

v. Callahan Const. Co., 28 Cal. App. 777, 154 evidence," etc., does not contemplate the

Pac. 28. review of the evidence with a view to deter

12. Error in admitting unimportant testimining where the preponderance lies. The

mony relating to matters already in evidence true construction of the amendment is, so

is harmless.--Swanton v. Jacks, 30 Cal. App. far as appellate courts are concerned, that

60, 157 Pac. 11. the evidence may be reviewed or examined,

13. Refusal to strike out an answer given not for the purpose of determining the evi

in response to an improper question is dentiary value of the testimony or where

harmless where further cross-examination the preponderance of the evidence lies, but

of the witness brings out a repetition of the only for the purpose of determining whether

testimony.-Pacific Portland Cement Co. v. the court may be required to hold that from

Reinecke, 30 Cal. App. 501, 158 Pac. 1041. any error in the misdirection of the jury,

14. Error in admitting in evidence an or in the admission or exclusion of evidence, opinion as to the value of land is without or as to any matter of pleading or proce

prejudice where it is obvious from the verdure, a miscarriage of justice has resulted.

dict that the jury did not accept the testiSnyder v. Miller, 29 Cal. App. 497, 157 Pac. 22.

mony or opinion of the witness upon the 3. Burden of proof of error.-A judgment

question of the value of the strip.-Reclamaor order will not be reversed unless error

tion District No. 730 v. Inglin, 31 Cal. App. is shown, and the burden is upon the appel

495, 160 Pac. 1098. lant to show the error.--Kellogg v. Kellogg,

15. Invited error.--A defendant can not 170 Cal. 84, 148 Pac. 518.

stand by and without objection allow an 4. It is incumbent upon the party appeal- issue to be tried as though properly preing to show, not only abstract error, but sented by the pleadings and on appeal error prejudicial to him upon the facts in escape the consequences by claiming that evidence, and to avail himself of the point the complaint failed to present such issue.that an instruction was erroneous, he must Slaughter v. Goldberg, Bowen & Co., 26 Cal. bring before the court sufficient evidence to App. 318, 147 Pac. 90. show that, upon a proper instruction, there

16. A defendant can not allow an issue might have been a finding in his favor. If to be tried as though properly presented he does less than this he presents for con- by the pleadings and on appeal escape the sideration a mere question of abstract error. consequences by claiming that the complaint --Mintzer v. Richmond, 27 Cal. App. 566, 150 failed to present such issue. He has not Pac. 799.

sustained substantial injury where the court 5. It devolves upon an appellant to affirm- refuses to send the case back to have the atively show prejudicial error.—Valencia v. complaint amended when the proof would Milliken, 31 Cal. App. 533, 160 Pac. 1086. be the same.-Boyle v. Coast Improvement

Harmless error.-Variance between the Co., 27 Cal. App. 714, 151 Pac. 25. allegations and proofs is immaterial where 17. When reversal necessary.-The pracit in no way affects any of the substantial tice of deciding a case without in terms matters in controversy and is susceptible of declaring upon reserved rulings touching correction by an amendment to the com- the admissibility of evidence is one to be plaint.-Sparks v. Mauk, 170 Cal. 122, 148 reprobated and deplored, and where subPac. 926.

stantial injustice to a litigant results the 7. The changing of a mandamus proceed- error is of sufficient gravity to call for a ing to an action for equitable relief or for reversal.-Stanwood v. Carson, 169 Cal. 640, the recovery of damages by the allowance 147 Pac. 562. of an amendment of the complaint while 18. It is only when a judgment rests for error is not cause for reversal of a judg- its validity upon a finding which is not ment.--Franscioni v. Soledad Land & Water supported, or which negatives a fact adCo., 170 Cal. 221, 149 Pac. 161.

mitted by the pleadings, that injury is 8. The admission of incompetent evidence worked and a reversal must follow.-Thayer will be regarded as harmless when there is v. Tyler, 169 Cal. 671, 147 Pac. 979.

22. A judgment will not be reversed on the ground of failure to find on a particular issue where the want of such a finding is not prejudicial to the defendant.-Beggs v. Smith, 26 Cal. App. 532, 147 Pac. 585.

23. Minor errors in rulings on the admissibility of evidence do not constitute ground for reversal.-Bannister v. H. Jevne Co., 28 Cal. App. 133, 151 Pac. 546.

20.

19. An instruction, in an action by a passenger against a street railroad company for personal injuries, that the plaintiff was, as a matter of law, not guilty of contributory negligence in riding on the runningboard of the car, is prejudicial error.-Kelly v. Santa Barbara Consol. R. Co., 171 Cal. 415, 153 Pac. 903.

Denial of a jury trial and the substitution of the court for the jury to hear the evidence and determine the facts are errors of so grave a character that the court will not refuse to reverse the case on the theory that justice had not miscarried by the judgment.-In re Baird, 173 Cal. 617, 160 Pac. 1078.

21. A judgment will not be reversed because of failure to make findings which would not necessitate a different judgment even if they were made and entered in appellant's favor.–Smith v. Smith, 173 Cal. 724, 161 Pac. 495.

$ 476.

1. Presumption of notice. Upon appeal from a judgment entered for failure to answer after demurrer overruled, it will be presumed that notice of the order overruling the demurrer was given, as required by section 476 of the Code of Civil Procedure, where the appeal is taken upon the judgment-roll without any statement or bill of exceptions.—Hooper v. Smith, 30 Cal. App. 46, 158 Pac. 556.

TITLE VII.

OF THE PROVISIONAL REMEDIES IN CIVIL ACTIONS.

8 509.

8 481.

form of action under our system of pleading;

but it is available as an auxiliary remedy 1. Affidavit for order of arrest, sufficiency

in any action where the plaintiffs assert a of.-If it appears from the affidavit that the

present right to the possession of personal defendant is about to depart from the state

property.-Costello v. Bell, 27 Cal. App. 102, with intent to defraud his creditors, a suffi

148 Pac. 948. cient case is made out to warrant his arrest.

4. Complaint.-To sustain an action in The person making the affidavit may follow the statute and declare in positive terms

replevin, the plaintiff must show that he is that the defendant is about to depart from

entitled to the possession of the property, the state with intent to defraud his cred

although it is not essential that he should

show that he itors, or he may set out the facts which

ever had actual possession will warrant the judge in concluding such

of it.-Beggs v. Smith, 26 Cal. App. 532, 147

Pac. 585. to be the intent of the defendant. In either

5. case the affidavit will be held sufficient.

Where the complaint in an action in In re Caples, 26 Cal. App. 786, 148 Pac. 795.

claim and delivery fails to contain a direct averment that the plaintiff was at the time sion.-Bradshaw v. Eggers, 27 Cal. App. 132, 148 Pac. 961.

of the commencement of the action the CLAIM AND DELIVERY.

owner and entitled to the possession of the

property sued for, and the answer denies 1-3. As to nature of remedy.

the plaintiff's ownership and the right of 4–7. Complaint.

possession, the defect in the complaint is 8. Recovery of attorney's fees.

cured.-Beggs v. Smith, 26 Cal. App. 532, 1. As to nature of remedy.-The term

147 Pac. 585. claim and delivery," as used in the Code

6. A complaint in an action to recover of Civil Procedure, does not refer to a form the possession of personal property, whose of action but merely to an auxiliary remedy; only allegation showing the value of the in this state there is but one form of action, demanded property is contained in a schedwhich has no name, and an action can not ule of mortgaged articles contained in a be defeated as it could be at common law copy of the mortgage attached to the combecause not properly named. — Benzler v.

plaint, which purports to give the value of Van Fleet, 28 Cal. App. 389, 152 Pac. 736. some of the articles, is insufficient.—Keiser

2. An action in the form of claim and v. Levering, 29 Cal. App. 41, 154 Pac. 281. delivery can be maintained against a bailee 7. In an action to recover the possession for the recovery of personal property, or its of oil paintings and other pictures, an value in case a return thereof can not be objection that some of the pictures are not had, notwithstanding the defendant parted sufficiently described in the complaint should with the possession of the property prior

be raised by demurrer for uncertainty, and to the commencement of the action.-Benz- where not SO raised and the defendant ler v. Van Fleet, 28 Cal. App. 839, 152 Pac. answers, the objection is waived.—Orchard736.

son v. Christie, 30 Cal. App. 8, 157 Pac. 547. 3. The remedy of retaking personal prop- 8. Recovery of attorney's fees. — Attorerty through the process of claim and deliv- ney's fees are not recoverable as damages ery is not to be classed as an independent in actions of claim and delivery or conver

2. Under such conditions, mandamus is the proper remedy to compel the delivery of the property to the plaintiff. — Bailey v. Baker, 28 Cal. App. 537, 153 Pac. 242.

$ 514.

1. Redelivery to defendant.-In an action in claim and delivery, the right of the defendant to require the return to him of property taken from him by the sheriff is conditioned upon his giving to the sheriff an undertaking as provided by section 514 of the Code of Civil Procedure, but the plaintiff in the action, as well as the sheriff, is a person interested in the sufficiency of the undertaking, by reason of the statutory requirement of notice to the plaintiff of justification of the sureties thereon, and where the defendant fails to proceed with the justification after giving the undertaking, such failure constitutes an abandonment of the attempt to require the return of the property to himself, and gives the plaintiff the right to have it delivered to him by the sheriff.–Bailey v. Baker, 28 Cal. App. 537, 153 Pac. 242.

8 515.

1. Justification of sureties.—The obligation of the defendant to cause his sureties to justify is a positive and unconditional duty which must be performed after giving notice to the plaintiff. This requirement of notice to the plaintiff is a recognition that the plaintiff as well as the sherift is a person interested in the sufficiency of the undertaking.–Bailey v. Baker, 28 Cal. App. 537, 153 Pac, 242.

2. Failure of the defendant to proceed with the justification of his sureties is an abandonment of his attempt to require the return of the property to himself. Such abandonment gives to the plaintiff the right to have the property delivered to him by the sheriff just as if no undertaking had been given.–Bailey V. Baker, 28 Cal. App. 537, 153 Pac. 242.

CHAPTER III.

INJUNCTIONS.

$ 534. Actions concerning water rights [new].

$ 525.

was

any of the persons who were customers

of the plaintiff prior to the date when the INJUNCTION.

defendant left the plaintiff's employ with1, 2. Construction of code provisions.

out notice or warning, along the route 3. As to form of injunction.

attended to by the defendant, while de4. As to what is an injunction.

fendant employed by plaintiff, and 5. Staying injunction, power of court.

from in any manner attempting to induce 1. Construction of code provisions.--Sec

any of said customers of said plaintiff, tions 525 to 533, relative to the power of

either directly or indirectly, to withdraw the superior court in the matter of tempo

any of their business, custom or patronage rary injunction, are not unconstitutional

from the plaintiff, has the effect, notwithas encroaching upon the original jurisdic

standing the use of the phrase "but not tion of the court in equity cases granted by

receiving," of enjoining the defendant from the constitution of 1879.–United Railroads

in any manner attempting by any means, v. Superior Court, 170 Cal. 755, 151 Pac. 129.

direct or indirect, to induce any of the 2. The legislature by sections 525 to and

patrons of the plaintiff along the designated including 533 of the Code of Civil Proce

route to withdraw any of their business, dure, in a title headed “Provisional Reme

custom or patronage from the plaintiff.dies in Civil Actions," has defined with pre

New Method Laundry Co. v. MacCann, 174 cision, so far as it may do so, the extent

Cal. 26, 161 Pac. 990. of the power of trial courts in the matter

As to what is an injunction.-A reof provisional injunctions; in view of the straining order, though temporary in its nature of a provisional injunction, an in- effect, is an injunction.-Laam v. McLaren, junction designed simply to prevent certain 28 Cal. App. 632, 153 Pac. 985. acts causing injury during the pendency of 5.

Staying injunction, power of court.the litigation, and the language of such In view of the constitutional and statutory code sections, it is apparent that the legis- provisions of our law, a superior court, lature intended to devise a scheme by which which, by order duly and regularly made the status pending the decision the

upon notice and hearing, has granted a merits might be definitely and finally de- temporary or provisional injunction absotermined once for all.-United Railroads v. lutely restraining a defendant from the Superior Court, 170 Cal. 755, 151 Pac. 129. commission of certain acts during the pen

3. As to form of injunction.-An injunc- dency of the action, without reserving any tion restraining and enjoining a former right of revocation or modification, has no employee of a laundry company, his agents power to subsequently make an order stayand employees, from in any manner solicit- ing the operation of the injunction until ing, “but not receiving," laundry work from the final determination of the cause,

on

or

until a contemplated appeal from the order has been heard and determined. United Railroads v. Superior Court, 170 Cal. 755, 151 Pac. 129.

$ 526.

an

the cutting of timber, and the mining of minerals, is one of comparatively recent origin; but it is now fully recognized and well established. If the nature of the injury complained of goes to the substance of the estate, thereby producing irreparable mischief, equity will interfere in limine, and not require the party to resort to an action at law, and this independent of the question of the insolvency of the defendant. El Dora Oil Co. v. United States, 229 Fed. 946.

9. It is not necessary that the plaintiff should be in possession in a suit to restrain the waste and destruction of property, and incidentally to have accounting for waste already committed.-El Dora Oil Co. v. United States, 229 Fed. 946.

10. -Multiplicity of suits (subd. 6).-It is one of the peculiar provinces of equity to restrain and forbid by injunction repeated acts of trespass where the loss sustained is difficult of admeasurement and where the legal redress involving a multiplicity of suits is wholly inadequate.—United Railroads v. Superior Court, 172 Cal. 80, 155 Pac. 463

11. In federal court.-Bill in equity will not lie in the federal court to enjoin the enforcement of a judgment entered on compromise made by a guardian ad litem, where the proceedings in the state court were in accord with the state statute and with the approval of the state court, and the

bill necessarily involves an inquiry whether the ward was or was not incompetent.--Eggers v. Krueger, 236 Fed. 852.

Bill in equity to enjoin the enforcement of a state judgment will not lie in the federal court where it is based upon the same grounds as the litigation had in the state courts.--Eggers V. Krueger, 236 Fed. 852.

13. Bill in equity to enjoin the enforcement of a judgment of a state court will not lie where it shows that there was plain, speedy and adequate remedy at law in the courts of the state in which the judgment was rendered.-Eggers v. Krueger, 236 Fed. 852.

a

12.

a

8 526a.

GRANTING INJUNCTION. 1. Construction of injunction.

2. —of section (subd. 4). 3-7. As to what may be enjoined (subd. 1). 8, 9. —Irreparable injury (subd. 2).

10. Multiplicity of suits (subd. 6). 11-13. In federal court.

1. Construction-of injunction.-Equities are weighed in granting or refusing a temporary injunction and are to be considered in interpreting it.—United Railroads v. Superior Court, 172 Cal. 80, 155 Pac. 463.

2. -of section (subd. 4).-Under paragraph 4 of the second part of this section the trustees of a reclamation district are officers of the law, and an injunction can not be granted to prevent the execution of a public statute by officers of the law.Reclamation Dist. v. Superior Court, 171 Cal. 672, 154 Pac. 845.

3. As to what may be enjoined (subd. 1). --The use by a tenant in common of more than his share of water may be enjoined.Barton Land & Water Co. v. Crafton Water Co., 171 Cal. 89, 152 Pac. 48.

4. An injunction may be granted to prevent the defendants from interfering with an easement to have a supply of water flow from their lands to plaintiff's property, and damages may be awarded for cutting waterpipes.—Cheda v. Bodkin, 173 Cal. 75, 158 Pac. 1025.

5. A complaint in an action to obtain an injunction restraining the defendant from enforcing a default judgment obtained against the plaintiff in a justice's court, on the ground that the default and judgment had been rendered upon an insufficient service of summons, fails to state a cause of action, where it is not alleged that the plaintiff has or ever had any defense on the merits to the action in the justice's court, or that the judgment there given was not in fact just.--Matson v. Batto & Sons, 173 Cal. 800, 161 Pac. 1144.

6. Where the act sought to be enjoined is only partially completed, an injunction will lie to restrain the completion of the threatened injury. And where suit is begun before the doing of the wrongful act and during the pendency of the suit the act is done by the defendant, the court will not thereby be deprived of its jurisdiction.Taft v. Washington, 29 Cal. App. 197, 154 Pac. 1073.

7. A life tenant may be restrained by injunction from tearing up a disconnecting drain pipe.-Taft V. Washington, 29

Cal. App. 199, 154 Pac. 1073.

8. –Irreparable injury (subd. 2). — The jurisdiction of courts of equity by way of injunction to restrain waste, to prevent

1. Injunction against officer — Construction, who may bring action. This section does not forbid a taxpayer from seeking to recover on behalf of his municipality moneys illegally expended.–Osburn v. Stone, 170 Cal. 480, 150 Pac. 367.

2. -What showing necessary-A resident property owner and taxpayer has no right to maintain an action to compel the county sheriff to pay into the county treasury certain fees collected and alleged to have been wrongfully appropriated by him, in the absence of

a showing that the proper county officers have refused to commence or prosecute such a proceeding for the protection of the county's interest.Keith v. Hammel, 29 Cal. App. 131, 154 Pac. 871.

8 534. ACTIONS CONCERNING WATER RIGHTS. In any action brought by a riparian owner to enjoin the diversion of water appropriated or proposed to be appropriated, or the use thereof, against any person or persons appropriating or proposing to appropriate such waters, the defendant may set up in his answer that the water diverted or proposed to be diverted is for the irrigation of land or other public use, and, in such case, he shall also in such answer set forth the quantity of water desired to be taken and necessary to such irrigation of land or the public use, the nature of such use, the place where the same is used or proposed to be used, the duration and extent of the diversion or the proposed diversion, including the stages of the flow of the stream at and during the time in which the water is to be diverted, and that the same may be diverted without interfering with the actual and necessary beneficial uses of the plaintiff, and that such defendant so answering desires that the court shall ascertain and fix the damages, if any, that will result to the plaintiff or to his riparian lands from the appropriation of the water so appropriated or intended to be appropriated by defendant.

The plaintiff may serve and file a reply to the defendant's answer stating plaintiff's rights to the water and the damage plaintiff will suffer by the defendant's taking of the water, and plaintiff may implead as parties to the action all persons necessary to a full determination of the rights of plaintiff to the water and the damages plaintiff will suffer by the proposed taking by defendant, and the court shall have jurisdiction to hear and determine all the rights to water of the plaintiff and other parties to the action, and said parties shall have a right to state and prove their rights, and shall be bound by the judgment rendered the same as though made parties plaintiff at the commencement of the action.

[Appropriation and damages fixed.] Upon the trial of the case the court shall receive and hear evidence on behalf of the respective parties, and if the court finds that the allegations of such answer are true as to the aforesaid matters, and that the appropriation and diversion of such waters is [are) for irrigation of land or other public use and that, after allowing sufficient water for the actual and necessary beneficial uses of the plaintiff and other parties, there is water available to be beneficially appro priated by such defendant so answering, the court shall fix the time and manner and extent of such appropriation and the actual damages, if any, resulting to the plaintiff or other parties on account of the same, and in fixing such damages the court shall be guided by paragraph four of section one thousand two hundred forty-eight of this code, and if, upon the ascertainment and fixing of such damages the defendant, within the time allowed in section one thousand two hundred fifty-one of this code for the payment of damages in proceedings in eminent domain, shall pay into court the amount of damages fixed and the costs adjudged to be paid by such defendant, or give a good and sufficient bond to pay the same upon the final settlement of the case, the injunction prayed for by the plaintiff shall be denied to the extent of the amount the defendant is permitted to appropriate, as aforesaid, and the temporary injunction, if any has been granted, shall be vacated to the extent aforesaid;

[Appeal.] provided, that any of the parties may appeal from such judgment as in other cases;

[No injunction, when.) and provided, further, that if such judgment is in favor of the defendant and if he upon and pending such appeal shall keep on deposit with the clerk of said court the amount of such damages and costs, or the bond, if it be given, so awarded to be paid to the plaintiff or other parties in the event such judgment shall be affirmed, no injunction against the appropriation of the amount the defendant is permitted to appropriate as aforesaid shall be granted or enforced pending such appeal, and, upon the acceptance by the plaintiff or other parties of such amount so awarded or upon the affirmation of such decision on appeal so that such judgment shall become

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