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J. J. McCarty was convicted of burglary, and appeals. Atfirmed.

A. B. Hotchkiss, Davis & Mott, and Angus Roy Shannon, for appellant. W. F. Fitzgerald, Atty. Gen., and W. H. Anderson, Dep. Atty. Gen., for the People.

year 1894, and that plaintiff's “bid in” the same. in order to prevent the purchase thereof by strangers; that on March 6, 1895, defend. ant ceased to be the collector of said district, and his successor was installed in office; that, nevertheless, on March 24, 1895, defendant resold to divers persons at public auction the said lands of plaintiffs, and issued certificates of sale thereof, which certificates are of record in the county recorder's office, and are a cloud on plaintiff's' title. There is no averment that defendant has any interest in the land, or in the said certificates of sale. It is prayed that the sale and said certificates be adjudged null and void; that such certificates be delivered up and canceled; and that plaintiffs be declared the owners of said lands, discharged of the lien of said assessment.

If judgment had passed as prayed by plaintiffs, it would have determined nothing, for the obvious reason that no person to be affected thereby is before the court as a party defendant. The complaint shows that the only defendant named was, but is no longer, an officer of the Irrigation district. The district itself is not joined, and no purchaser of plaintiffs' lands or holder of a certificate of sale is made a party. Here is not a mere nonjoinder of interested parties, where failure to plead the fact is a waiver of the objection, but a proceeding against one person, when, for all purposes of the suit, the cause of action, if any exists, is wholly against others. It seems, from the argument of counsel, that the demurrer was sustained by the superior court on grounds different from those we have suggested; but, as the view here indicated is conclusive of the case, it is unnecessary to consider other questions made regarding the effect of various transactions, set out in the complaint, between plaintiffs and the irri. gation district. The judgment should be affirmed.

GAROUTTE, J. The defendant was convicted of the crime of burglary of the first de gree, and appeals from the order denying his motion for a new trial.

There was no error committed by the court in allowing the witness Auble to remain in the court room during the examination of witness es. The exclusion of witnesses during the time in which the evidence is being placed before the jury is a matter largely in the discretion of the trial court. No abuse of that discretion is disclosed here. People v. Hong Ah Duck, 61 Cal. 387. It is contended that the evidence is insufficient to support the verdict of burglary in the first degree, the claim being that, if a burglary was committed the act was done in the daytime, and therefore it was burglary of the second degree. The defendant and others constructed a tunnel some 120 feet in length from the cellar of a certain saloon to a point imme. diately beneath the floor of a certain bank building in the city of Los Angeles, for the purpose of committing larceny. Upon the day set for the actual entry through the floor inti) the building the defendant and his confederates some time during the afternoon entered the cellar, one of them emerging therefrom at 7 o'clock p. m., for the purpose, he stated, of securing fresh air. The others came out of the cellar at 12 o'clock that night. The bur glary was committed by these men at som time during these hours. The finding of the jury on this question was a matter peculiarl; within their province, and upon this evidenca the court will not disturb the verdict in th.. regard. Again, it is contended that there is not sufficient evidence corroborating the testi mony of the accomplice Jones. Without nu citing the corroborating evidence disclosed by the record, it is sufficient to say we are entirely satisfied with it. It is ample to satisfy the demands of the statute, and, taking all the evidence together, defendant's guilt is plainly apparent. There is no merit in the remaining points made in defendant's brief. For the foregoing reasons the order appealed from is affirmed.

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(117 Cal. 65)

PEOPLD v. MCCARTY. (Cr. 283.) (Supreme Court of California. May 21, 1897.) CRIMINAL LAW-EXCLUSION OF WITNESSES

EVIDENCE. 1. The exclusion of witnesses while the evi. dence is being taken is largely in the discretion of the trial court.

2. On trial for burglary the evidence showed that defendant, by means of a tunnel leading from a cellar, entered and robbed a certain bank; that defendant and his confederates entered the cellar during the afternoon, and came out at 12 o'clock at night. Held, that the question whether the robbery was committed at night so as to constitute burglary in the first degree was for the jury.

Department 1. Appeal from superior court, Los Angeles county; B. N. Smith, Judge.

(117 Cal. 671 MCDOWELL v. HYMAN et al. (S. F. 594.) 1 (Supreme Court of California. May 21, 1897.) APPEAL-REVIEW OF EVIDENCE-LANDLORD AND

TENANT-QUIET ENJOYMENT. 1. Where there is a substantial conflict in the evidence, the verdict will not be disturbed on the ground that it is contrary to the erience.

2. A tenant of the third and fourth floors of a building, whose water supply is cut off, furni

Rehearing denied.

pure injured by dust and lime, ingress and egress Madison & Burke's agent, who collected the interfered with, causing damage, by the land

rent, the same thing. She paid her sister $30 lord's repairing the second floor, may recover from the landlord for breach of covenant of quiet

per month to manage the third floor, and that enjoyment, irrespective of his negligence.

the latter always paid the rent of the third Commissioners' decision. Department 1.

floor. On the other hand, Catherine Johnston, Appeal from superior court, city and county

the sister of plaintiff, on cross-examination of San Francisco; John Hunt, Judge.

said: "When the supreme court moved out, Action by Delia McDowell against Henry

I took the third floor. Paid $150 per month

for it. After Mr. Hyman became the owner, W. Hyman and others for damages sustained

I paid the rent each month to Madison & as tenant. From a judgment for plaintiff,

Burke's collector in my own name, and took and an order denying a new trial, defendants appeal. Affirmed.

the receipts in my own name. My sister at

the same time paid the rent for the floor which Naphtaly, Freidenrich & Ackerman, for ap

she occupied. The rents were not paid at the pellants. Smith & Murasky, for respondent.

same time. I paid the rent for the floor which

I occupied, and my sister paid the rent for the SEARLS, C. This is an action to recover floor which she occupied.” It further appeardamages sustained by the plaintiff as a tenanted that defendants served two notices upon of the defendants of the third and fourth floors plaintiff in reference to the upper or fourth of the building 105 Stockton street, San Fran- floor, one raising the rent thereof from $150 cisco, by reason of repairs and alterations per month to $450, and the other requiring her made by defendants upon the second floor of to vacate said floor within three days; and said building, whereby the business of the that they wanted Miss Johnston to take both plaintiff as the keeper of a lodging house was floors, and let her sister go, giving as a reason injured, her water supply cut off, her furniture therefor that plaintiff gambled in stocks, and damaged by dust and lime, her ingress and was never home. H. W. Hyman, one of the egress interfered with by débris in the halls defendants, testified that they (Hyman Bros.) and on the stairs, in consequence of which her bought the property May 1, 1888; that he was lodgers forsook their rooms, etc. The answer introduced to the tenants by Columbus Bartdenies that plaintiff was at any time an occu- lett, the attorney for the estate from which he pant of the third floor of said building as a purchased. Plaintiff occupied the fourth floor, tenant of the defendants or otherwise; admits and Miss Johnston the third. Plaintiff never that they made repairs on the second floor, claimed to be the tenant of the third floor. and that plaintiff was their tenant of the fourth "The first time I heard that she claimed to be floor of the house up to April 1, 1889; and a tenant of the third and fourth floors was in denies most of the other allegations of the this court yesterday.” I. H. Hahns, a memamended complaint. Plaintiff bad a verdict ber of the firm of Madison & Burke, and head for $900, upon which judgment was entered. collector for the firm, testified that he collected Defendants appeal from the judgment and the rents; called with Mr. Hyman, and was from an order denying their motion for a new introduced by him to the tenants on May 1, trial.

1888, as follows: “This is Mrs. McDowell The first point made by appellants for re- [plaintiff), who occupies the upper floor, and versal is that the evidence was not sufficient this is Miss Johnston, on the third floor. And to warrant the jury in finding that plaintiff he said, 'in future pay the rent to Madison & was the tenant of the third floor of the build

Burke.'" He afterwards collected the rent ing. It would appear that the original com- from them severally for the third and fourth plaint averred that plaintiff was the tenant of floors,-from plaintiff for fourth, and from the fourth or upper floor of the building. At Miss Johnston for third,--and gave them septhe trial, plaintiff, who was a witness in her arate receipts therefor. We have stated the own behalf, had testified that she “was en- evidence, or its substance, on this point, at gaged in the lodging-house business in the length, out of respect to the apparent sincerity years 1888 and 1889 at No. 105 Stockton street; with which counsel have urged the point. had been engaged in that business since 1880; There can be but one result, however, in the had the third and fourth floors of the building, end, and that is voiced by the oft-repeated which were used as a lodging house," etc. statement that there is a substantial conflict in Thereupon the court, on motion of plaintiff, the evidence, and in such cases the verdict will permitted her to amend her complaint by in- not be disturbed upon the ground that it is serting the words “third floor," so as to read contrary to the evidence. If the jury believed “plaintiff carried on the lodging business on the testimony of the plaintiff, they were justithe third and fourth floors.” Subsequently fied in finding in her behalf on the question plaintiff testified that she used both floors as a under consideration. Again, the court inlodging house; that when Hyman became structed the jury very clearly that the question owner of the house she entered into an ar- of the tenancy of plaintiff of the third floor rangement with him concerning the rent of the was one of fact for their determination, and third and fourth floors, and told him she had that, if they found on that question in favor of both floors; that she had her sister, Miss defendants, and found further that plaintiff Johnston, manage the third toor, and that was entitled to recover, then, and in that case, plaintiff managed the top floor. She also told it could only be for such damages as she sustained in the use and enjoyment of and to the principal covenant on the part of a landlord, property in and on the fourth floor. Non con- which, if not expressed, is implied, is that his stat but that the jury may have found plaintiff tenant shall have the quiet enjoyment and was not the tenant of the third floor, but at the possession of the premises during the continusame time found her entitled to recover $900 ance of the term. “This covenant, whether on account of the disturbance to her use and expressed or implied, means that the tenant enjoyment of the fourth floor, and the conse- shall not be evicted or disturbed by the lessor, quential destruction of her business by the or by persons deriving title from him, or by loss of her lodgers, which business, as she tes- virtue of a title paramount to his, and implies tified, yielded her a profit of several hundred no warranty against the acts of strangers. It dollars per month, coupled with injury to her is equivalent to a stipulation that the lessee furniture, etc. In this state of the case we shall not be rightfully disturbed in his posare not prepared to say that the verdict is, in session during the term, not that he shall not the light of the evidence, so excessive as to be disturbed at all.” 1 Tayl. Landl. & Ten. $ Warrant the inference that it was given under 305. If the tenant is evicted, or his possession the influence of prejudice or passion.

disturbed by another tenant of a portion of 2. The second point made by appellants is the same premises, or by any other stranger that the complaint does not state facts suffi- to the title, the covenant is not broken, and cient to constitute a cause of action. The suffi- his redress is not against the landlord, but ciency of the complaint, and the propriety of against the wrongdoer. “Flats are as much the action of the court in giving and refusing separate dwellings as ordinary adjoining instructions to the jury, depend mainly upon houses are. The difference is that flats are the same general principle. The complaint under one roof, and are divided one from andoes not count upon the negligence of the de- other by a horizontal plane, but ordinary adfendants in making repairs upon the second joining houses by a perpendicular or vertical floor of the building, but is founded upon the plane." Stamper v. Sunderland, L. R. 3 C. P.. theory that plaintiff was the tenant of de- at page 100. “Where these flats are separate fendants of the two upper floors of the build- tenements, though under one roof, yet, if the ing; that defendants, as owners of the build- owner does not reside as such on the premises, ing, conducted certain alterations and improve- or retain control of the whole, a letting will ments on the second floor by tearing out par- create a tenancy and interest in real estate, titions and walls, putting in new partitions, though there is an outer door or gate in charge plastering, removing the front doors, etc., of a porter, as the tenants have an equal conwhereby plaintiff was damaged, and her quiet trol thereof or easement therein." Tayl. Landl. enjoyment of the premises as a tenant was in- & Ten. 66. A mere lodger is one who occuterfered with. The contention of appellants | pies a room or portion of a tenement, which is that the law relating to landlord and tenant, is under the control or in the occupancy of where lodgings or apartments or floors are another, and he has no interest in real estate. rented, is different from what it is where an Counsel for appellants have discussed at entire building is rented. That in the latter some length the relative rights of separate tencase the premises pass into the exclusive pos- ants in the same tenement or building. Ordisession and control of the tenant; but that in narily, they occupy no contractual relation to the former case--that is to say, where a por- one another, and their rights and liabilities tion only of a building is let, and the tenant depend upon different principles. We are here has rights in common with the landlord and concerned with the question of the rights beother tenants--the landlord retains all the tween landlord and tenant, upon the forner rights and is subject to all the responsibilities of whom rests the implied agreement for the of a general owner to all persons, including quiet enjoyment and possession by the latter the tenant or tenants of his building. That of the premises she occupied. The landlords, in such cases the principle is deducible that as the owners of the second floor, had an unonly that which is reasonably essential to the doubted right to repair, alter, and improve that enjoyment of the premises leased passes to portion of their premises, but in so doing they the tenant, and that, as to the portions of a were bound by their implied agreement to so building retained by the landlord, he has all conduct their operations as not to dispossess the rights of an owner, and is only liable for or render uninhabitable the portion of the a negligent exercise of those rights. Put more building they had demised to others, and, if tersely, the contention is that, in the case at they failed in this duty, they were liable to bar the defendants are only liable for negli- their tenant, irrespective of the question of gence, and, as negligence is not charged in negligence. As against third parties, they the complaint, the pleading was insufficient, could take down the outer or inner walls of and the instructions, which proceeded upon the building at will, subject only to such negthe theory that plaintiff could recover without ligence and consequent injury as might renan allegation and proof of negligence, are er- der them liable to parties injured thereby, but roneous. “An agreement to let upon hire binds as against their tenant they could not do the the letter to secure to the hirer the quiet pos- same thing, even in the most careful manner, session of the thing hired during the term if the result destroyed the quiet enjoyment of of the hiring, against all persons lawfully such tenant. This was the distinction taken claiming the same.” Civ. Code, $ 1927. The by the learned judge in overruling the demurrer to plaintiff's complaint and in giving and ness in the city and county of San Franrefusing instructions to the jury, in all of cisco, of the first part," etc. The deed conwhich we think he was correct. We would tinues in the usual form, and, after the hahen. gladly examine the several instructions seri- dum clause, closes as follows: "In witness atim, but their length and the space already whereof, the said party of the first part hath occupied forbids our so doing. A careful anal- caused these presents to be signed with its ysis of those instructions convinces us that, corporate name by Francis L. A. Ploche, Henwithin the theory we have enunciated, no re- ry A. Cobb, and Cornelius De Boom, the trusversible error was committed at the trial, and tees of said corporation, and to be sealed by we recommend that the judgment and order said trustees with their respective private appealed from be affirmed.

seals (said corporation having no common

seal), at the city and county of San FranWe concur: BELCHER, C.; HAYNES, C.

cisco, the day and year first above written.

(Signed] The Islais and Salinas Water ComPER CURIAM. For the reasons given in

pany, by F. L. A. Pioche (Seal), H. A. Cobb the foregoing opinion, the judgment and order [Seal), C. De Boom (Seal], Trustees." Proof appealed from are affirmed.

was made that the corporation grantor had three trustees, but there was no proof that the parties signing the deed were such trus

tees, nor was there any authority shown from (117 Cal. 56)

the corporation to any one to make the sale BARNEY et al. v. PFORR. (S. F. 482.) 1

or to convey the land; nor was there any

resolution ratifying such conveyance. To sup(Supreme Court of California. May 21, 1897.)

port the deed of a corporation, which, as in CORPORATIONS--Deeds—VALIDITY.

this case, is without a corporate seal, “it is One claiming under the deed of a corporation incumbent on the party relying on it to show executed without the corporate seal by persons

affirmatively that it was executed by authorsigning as trustecs must show affirmatively that it was authorized by a resolution of the directors

ity of a resolution of the board of directors, entered on the records of the corporation, or

entered on the records of the corporation, or that it was ratified by such a resolution.

that it was ratified by such a resolution." Commissioners' decision. Department 1.

Fudickar v. Irrigation Dist., 109 Cal. 29, 41 Appeal from superior court, city and county

Pac. 1024; Smith v. Dorn, 96 Cal. 73, 30 of San Francisco; J. M. Seawell, Judge.

Pac. 1024; Salfield v. Reclamation Co., 94 Ejectment by Mary E. Barney and another

Cal. 546, 29 Pac. 1105; Alta Silver Min. Co. v. against John Pforr. Anonsuit was granted,

Alta Placer Min. Co., 78 Cal. 629, 21 Pac. and from an order denying a new trial plain-373; Association v. Bustamente, 52 Cal. 192; tiffs appeal. Affirmed.

Gashwiler v. Willis, 33 Cal. 11. These cases

establish the doctrine enunciated in the above Blake & Harrison, for appellants. Pringle, quotation so firmly that further elaboration Hayne & Boyd, for respondent.

is deemed unnecessary.

Appellant claims that, conceding there was SEARLS, C. This is an action of eject- not sufficient authority shown from the corment to recover possession of a parcel of land foration to the persons who executed the deed in the southerly part of the city and couýty to convey, there was a ratification, as is shown of San Francisco. Defendant denied the ti- by the delivery of the deed by the trustees, tle of plaintiffs, and pleaded the bar of the receipt of the consideration, and placing the statute of limitations, as provided by sections vendees in possession. The infirmity of this 318, 319, Code Civ. Proc. At the trial a non- argument is: (1) There is no proof that the suit was granted on motion of defendant, and persons who executed the instrument were plaintiffs appeal from an order of the court trustees of the corporation. (2) There is no denying their motion for a new trial.

proof that any consideration was ever receivThe question involved turns upon the pro- ed by the corporation except as recited in the priety of a ruling of the court excluding a deed, and, as that was pot executed by the deed of conveyance of the property in ques- corporation, no presumption arises that it retion by the Islais and Salinas Water Company ceived any consideration. (3) Wade and Pot(a corporation) to Heury B. Potter and Abel ter are shown to have been squatters as early Wade, dated January 2, 1861. Plaintiffs as 1853 upon the land in dispute, with a large claimed under said Potter and Wade. A like area in addition, amounting probably to 300 deed from the same grantor to Charles Mayne acres, and there is no evidence that any pos. was the subject of a like ruling, but, as the session of any of the land was delivered to or deed first indicated presents the question fully, accepted by then, from the corporation, gran. further mention of the Mayne deed is unnec- tor in the disputed deed. The case falls far essary. The deed to Potter and Wade de- short of showing a ratification by the corporascribes the grantor as follows: "The Islais tion of the conveyance to Wade and Potter, and Salinas Water Company, a corporation Aside from the deeds which were properly duly formed under the laws of the state of excluded, the evidence failed to show a pos. California, having its principal place of busi- session in plaintiffs sufficient to support eject

1 Rehearing denied.

ment. We recommend that the order appeal- ; adjudging defendant's pretended claim void, ed from be affirmed.

and for further relief. The defendant denied

the ownership and right of possession of the We concur: HAYNES, C.; BELCHER, C. premises described in the plaintiff's complaint,

denied his entry upon the premises as alleged, . PER CURIAM. For the reasons given in and denied all damage. In answer to the the foregoing opinion, the order appealed from second cause of action the defendant admitted is affirmed.

that in 1893 he located a placer claim, and a portion of the premises in controversy, and

filed his declaratory statement and notice (19 Mont. 488)

with the county clerk of Madison county, but MCKAY V. MCDOUGAL.

denied that such action was without right, or Supreme Court of Montana. May 12, 1897.)

that it cast a cloud upon plaintiff's title. For

further defense defendant averred that the MINING-ACTION TO TRY TITLE -COMPLAINT.

plaintiff, McKay, and his predecessors in inA complaint in the nature of trespass to try title to a mining claim, which avers ownership,

terest, have no right, title, or interest in the right of possession, and the fact of possession, placer mining claim attempted to be described and entry by defendant without consent of plain- in the complaint, because at the time of their tiff, his mining thereon, and threat to continue to mine, and damages done by reason of the de

attempted location thereof the same was not fendant's acts, states a good cause of action. public domain of the United States, and had

been already appropriated; that about June, Appeal from district court, Madison county;

1876, one Sholes discovered placer within the Frank Showers, Judge.

limits of the ground, and proceeded to locate Action by Alexander McKay against Wil

a piacer claim, and did locate one, and marked liam J. McDougal. From a judgment for de

the boundaries thereof by posting monuments fendant, plaintiff appeals. Reversed.

set at the different corners of the claim, so Plaintiff alleges that he is a citizen of the that the same could be readily traced, and United States, and the owner of, and entitled posted the notice containing the date of locato the possession of, and was in the posses- tion, name of the locators, name of the claim, sion of, a certain placer claim, until his pos- and such a description thereof with reference session was interfered with by the defendant, to natural objects as that its boundaries could as hereinafter stated. Then follows a de be readily ascertained; and that in June, 1876, scription of the placer claim situated in the said Sholes and his associates entered into Union mining district, Madison county, Mont. possession of said placer mining claim, and He alleges that while he was the owner and proceeded to mine the same, and were the in the possession of the aforesaid placer min- owners and in possession thereof at the time ing claim, in June, 1893, and without his of the pretended location by said plaintiff and knowledge or consent, the defendant wrong- his predecessor in interest, Abe

Defully and without right entered upon the fendant then averred that plaintiff had abanpremises, and extracted gold therefrom, to doned the claim a long time prior to the complaintiff's damage; that thereafter again de- mencement of this suit, and had failed to fendant entered upon the property, and took perform the annual work necessary to be pergold therefrom, and threatens to continue said formed from the year 1877 up to and includtrespasses; and that, if they are continued, ing the year 1894. For further defense degreat damage will result to the property, and fendant set up a location by himself made that actions at law will not protect the plain- July 22, 1993, of a placer claim known as the tiff's rights without a multiplicity of suits, "Humbug Claim," pleading a specific descripand that defendant is wholly insolvent, and tion of said Humbug placer claim, and averunable to respond in damages. For a further ring that he filed an amended notice thereof for cause of action plaintiff averred that about the purpose of correcting errors in the original the year 1893 the defendant claims to have notice, and that ever since Juiy 22, 1893, except located as a placer claim a portion of the when interfered with by the injunction of the premises described in the complaint, and has district court, he was the owner of, in the tiled a pretended notice of location thereof possession of, and entitled to the possession with the county clerk of Madison county, and of, said placer mining claim, and was in the is asserting title and right of possession to a actual possession thereof, and mining the portion of the ground involved by virtue of same, when the injunction in this suit was said pretended location and notice of location served upon him. Defendant then averred hereinbefore mentioned; but that defendant's

that the plaintiff in May, 1894, and at other said claim is without right, but that the same, times, wrongfully entered upon said placer while upon the records of Madison county, location of defendant, and extracted placer casts a cloud upon plaintiff's title and right gold therefrom, and that he has been damaged of possession. The prayer is for damages by the trespasses of the plaintiff in the sum sustained, and a perpetual injunction enjoin- of $2.000. He prayed for damages, and a deing defendant from working, or otherwise tres- cree that he be declared the owner and enpassing upon the said mining claim, or assert- titled to the possession of said ground and ing any right or title thereto, and for a decree for an injunction. The plaintiff, by replica

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