§ 475.

ERRORS REGARDED.

1, 2. Construction of section. 3-5. Burden of proof of error. 6-14. Harmless error.

15, 16. Invited error.

17-23. When reversal necessary.

1. Construction of section. It is the duty of the court to examine the entire record to determine whether prejudicial error has been committed. The defendant's verified answer is a part of the record and may be considered.-Marshall v. Wentz, 28 Cal. App. 540, 153 Pac. 244.

2. The recent amendment to section 41⁄2 of article VI of the constitution, whereby appellate courts, in civil cases, are authorized, for certain indicated purposes, to examine "the entire cause, including the evidence," etc., does not contemplate the review of the evidence with a view to determining where the preponderance lies. The true construction of the amendment is, so far as appellate courts are concerned, that the evidence may be reviewed or examined, not for the purpose of determining the evidentiary value of the testimony or where the preponderance of the evidence lies, but only for the purpose of determining whether the court may be required to hold that from any error in the misdirection of the jury, or in the admission or exclusion of evidence, or as to any matter of pleading or procedure, a miscarriage of justice has resulted.— Snyder v. Miller, 29 Cal. App. 497, 157 Pac. 22. 3. Burden of proof of error.-A judgment or order will not be reversed unless error is shown, and the burden is upon the appellant to show the error.-Kellogg v. Kellogg, 170 Cal. 84, 148 Pac. 518.

4. It is incumbent upon the party appealing to show, not only abstract error, but error prejudicial to him upon the facts in evidence, and to avail himself of the point that an instruction was erroneous, he must bring before the court sufficient evidence to show that, upon a proper instruction, there might have been a finding in his favor. If he does less than this he presents for consideration a mere question of abstract error. -Mintzer v. Richmond, 27 Cal. App. 566, 150 Pac. 799.

5. It devolves upon an appellant to affirmatively show prejudicial error.-Valencia v. Milliken, 31 Cal. App. 533, 160 Pac. 1086. 6. Harmless error.-Variance between the allegations and proofs is immaterial where it in no way affects any of the substantial matters in controversy and is susceptible of correction by an amendment to the complaint.-Sparks v. Mauk, 170 Cal. 122, 148 Pac. 926.

7. The changing of a mandamus proceeding to an action for equitable relief or for the recovery of damages by the allowance of an amendment of the complaint while error is not cause for reversal of a judgment.-Franscioni v. Soledad Land & Water Co., 170 Cal. 221, 149 Pac. 161.

8. The admission of incompetent evidence will be regarded as harmless when there is

sufficient testimony from other sources upon the matter.-Barlow v. Frink, 171 Cal. 165, 152 Pac. 290.

9. A judgment should not be reversed for errors that do not affect the substantial rights of the parties.-Conaway v. Toogood, 172 Cal. 706, 158 Pac. 200.

10. Errors are harmless which consist in technical inaccuracies in the pleadings, and findings that do not affect the merits.Carrington v. Smithers, 26 Cal. App. 460, 147 Pac. 225. 11.

Any errors committed by the court in receiving testimony can not be deemed to have been prejudicial to defendant's right to a fair trial, when, disregarding the incompetent matter, enough remains in the record to sustain the cause of action as alleged in the amended complaint.-Tingey v. Callahan Const. Co., 28 Cal. App. 777, 154 Pac. 28. 12.

Error in admitting unimportant testimony relating to matters already in evidence is harmless.-Swanton v. Jacks, 30 Cal. App. 60, 157 Pac. 11. 13.

Refusal to strike out an answer given in response to an improper question is harmless where further cross-examination of the witness brings out a repetition of the testimony.-Pacific Portland Cement Co. v. Reinecke, 30 Cal. App. 501, 158 Pac. 1041.

14.

Error in admitting in evidence an opinion as to the value of land is without prejudice where it is obvious from the verdict that the jury did not accept the testimony or opinion of the witness upon the question of the value of the strip.-Reclamation District No. 730 v. Inglin, 31 Cal. App. 495, 160 Pac. 1098.

15. Invited error.-A defendant can not stand by and without objection allow an issue to be tried as though properly presented by the pleadings and on appeal escape the consequences by claiming that the complaint failed to present such issue.Slaughter v. Goldberg, Bowen & Co., 26 Cal. App. 318, 147 Pac. 90.

16. A defendant can not allow an issue to be tried as though properly presented by the pleadings and on appeal escape the consequences by claiming that the complaint failed to present such issue. He has not sustained substantial injury where the court refuses to send the case back to have the complaint amended when the proof would be the same.-Boyle v. Coast Improvement Co., 27 Cal. App. 714, 151 Pac. 25.

17. When reversal necessary.-The practice of deciding a case without in terms declaring upon reserved rulings touching the admissibility of evidence is one to be reprobated and deplored, and where substantial injustice to a litigant results the error is of sufficient gravity to call for a reversal. Stanwood v. Carson, 169 Cal. 640, 147 Pac. 562.

18. It is only when a judgment rests for its validity upon a finding which is not supported, or which negatives a fact admitted by the pleadings, that injury is worked and a reversal must follow.-Thayer v. Tyler, 169 Cal. 671, 147 Pac. 979.

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.

20. 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.

§ 481.

1. Affidavit for order of arrest, sufficiency of. If it appears from the affidavit that the defendant is about to depart from the state with intent to defraud his creditors, a sufficient case is made out to warrant his arrest. The person making the affidavit may follow the statute and declare in positive terms that the defendant is about to depart from the state with intent to defraud his creditors, or he may set out the facts which will warrant the judge in concluding such to be the intent of the defendant. In either case the affidavit will be held sufficient.In re Caples, 26 Cal. App. 786, 148 Pac. 795.

§ 509.

CLAIM AND DELIVERY.

1-3. As to nature of remedy.

4-7. Complaint.

8. Recovery of attorney's fees.

1. As to nature of remedy.-The term "claim and delivery," as used in the Code of Civil Procedure, does not refer to a form of action but merely to an auxiliary remedy; in this state there is but one form of action, which has no name, and an action can not be defeated as it could be at common law because not properly named. - Benzler v. Van Fleet, 28 Cal. App. 389, 152 Pac. 736.

2. An action in the form of claim and delivery can be maintained against a bailee for the recovery of personal property, or its value in case a return thereof can not be had, notwithstanding the defendant parted with the possession of the property prior to the commencement of the action.-Benzler v. Van Fleet, 28 Cal. App. 839, 152 Pac. 736.

3. The remedy of retaking personal property through the process of claim and delivery is not to be classed as an independent

form of action under our system of pleading; but it is available as an auxiliary remedy in any action where the plaintiffs assert a present right to the possession of personal property.-Costello v. Bell, 27 Cal. App. 102, 148 Pac. 948.

4. Complaint.-To sustain an action in replevin, the plaintiff must show that he is entitled to the possession of the property, although it is not essential that he should show that he ever had actual possession of it. Beggs v. Smith, 26 Cal. App. 532, 147 Pac.

585.

5. Where the complaint in an action in claim and delivery fails to contain a direct averment that the plaintiff was at the time of the commencement of the action the owner and entitled to the possession of the property sued for, and the answer denies the plaintiff's ownership and the right of possession, the defect in the complaint is cured.-Beggs v. Smith, 26 Cal. App. 532, 147 Pac. 585.

6. A complaint in an action to recover the possession of personal property, whose only allegation showing the value of the demanded property is contained in a schedule of mortgaged articles contained in a copy of the mortgage attached to the complaint, which purports to give the value of some of the articles, is insufficient.-Keiser v. Levering, 29 Cal. App. 41, 154 Pac. 281. 7. In an action to recover the possession of oil paintings and other pictures, an objection that some of the pictures are not sufficiently described in the complaint should be raised by demurrer for uncertainty, and where not SO raised and the defendant answers, the objection is waived.-Orchardson v. Christie, 30 Cal. App. 8, 157 Pac. 547. 8. Recovery of attorney's fees. Attorney's fees are not recoverable as damages in actions of claim and delivery or conver

sion. Bradshaw v. Eggers, 27 Cal. App. 132, 148 Pac. 961.

§ 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.

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.

§ 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 sheriff 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.

§ 525.

INJUNCTION.

1, 2. Construction of code provisions. 3. As to form of injunction.

4. As to what is an injunction.

5. Staying injunction, power of court.

1.

Construction of code provisions.-Sections 525 to 533, relative to the power of the superior court in the matter of temporary injunction, are not unconstitutional as encroaching upon the original jurisdiction of the court in equity cases granted by the constitution of 1879.-United Railroads v. Superior Court, 170 Cal. 755, 151 Pac. 129. 2. The legislature by sections 525 to and including 533 of the Code of Civil Procedure, in a title headed "Provisional Remedies in Civil Actions," has defined with precision, so far as it may do so, the extent of the power of trial courts in the matter of provisional injunctions; in view of the nature of a provisional injunction, an injunction designed simply to prevent certain acts causing injury during the pendency of the litigation, and the language of such code sections, it is apparent that the legislature intended to devise a scheme by which the status pending the decision on the merits might be definitely and finally determined once for all.-United Railroads v. Superior Court, 170 Cal. 755, 151 Pac. 129.

3. As to form of injunction.-An injunction

restraining and enjoining a former employee of a laundry company, his agents and employees, from in any manner soliciting, "but not receiving," laundry work from

any of the persons who were customers of the plaintiff prior to the date when the defendant left the plaintiff's employ without notice or warning, along the route attended to by the defendant, while defendant was employed by plaintiff, and from in any manner attempting to induce any of said customers of said plaintiff, either directly or indirectly, to withdraw any of their business, custom or patronage from the plaintiff, has the effect, notwithstanding the use of the phrase "but not receiving," of enjoining the defendant from in any manner attempting by any means, direct or indirect, to induce any of the patrons of the plaintiff along the designated route to withdraw any of their business, custom or patronage from the plaintiff.New Method Laundry Co. v. MacCann, 174 Cal. 26, 161 Pac. 990.

4. As to what is an injunction.-A restraining order, though temporary in its effect, is an injunction.-Laam v. McLaren, 28 Cal. App. 632, 153 Pac. 985.

5. Staying injunction, power of court.— In view of the constitutional and statutory provisions of our law, a superior court, which, by order duly and regularly made upon notice and hearing, has granted a temporary or provisional injunction absolutely restraining a defendant from the commission of certain acts during the pendency of the action, without reserving any right of revocation or modification, has no power to subsequently make an order staying the operation of the injunction until the final determination of the cause, or

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

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. ΕΙ 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 an 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 a 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.

12. 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 a 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.

$526a.

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.