(Supreme Court of California.

June 16, 1896.) INJUNCTION PENDENTE LITE-Jurisdiction.

In an action for divorce the court has jurisdiction, in a proper case and on a proper showing, to grant an injunction pendente lite, restraining plaintiff from alienating his separate property.

In bank. Appeal from superior court, city and county of San Francisco; J. C. B. Hebbard, Judge.

Petition by George E. White for a writ of habeas corpus for the purpose of obtaining his discharge from custody under a judgment finding him guilty of contempt in violating an injunction made pendente lite in an action by him for divorce. Writ discharged. Carl Spelling and Alexander. Laidlaw, for petitioner. Walter H. Linforth and W. H. Baggett, for respondent.

PER CURIAM. Petitioner was adjudged guilty of contempt in disobeying and violating the injunction of the court made pendente lite in the action of divorce entitled "George E. White v. Frankie White." The injunction restrained petitioner from alienating his separate property. The only jurisdictional question involved turns upon the power of the court to issue such an injunction in a divorce proceeding pending the litigation. We entertain no doubt that in a proper case, and upon a proper showing, this may be done. High, Inj. §§ 1393-1395; Bish. Mar. & Div. §§ 1106, 1107, and notes, where cases are collated. Whether or not the injunction in this case was warranted by the circumstances, or was an abuse of the discretion of the trial judge, is a question which cannot be considered in this proceeding. The restraining order being within the jurisdiction of the court to make, it follows that the prisoner must be remanded. Writ discharged, and prisoner remanded.

(113 Cal. 258)

RUSSELL v. PACIFIC RY. CO. et al. (COBB et al., Interveners. No. 19,573). (Supreme Court of California. June 8, 1896.) CORPORATIONS STATUTORY LIABILITY OF STOCKHOLDERS-ENFORCEMENT IN FOREIGN STATE.

1. Where a statute creates a liability against the stockholders of a corporation, and prescribes a remedy for its enforcement, that remedy is exclusive.

2. In such case the liability cannot be enforced in a foreign state.

3. A statute of Illinois making stockholders liable for the debts of the corporation to the amount of their stock remaining unpaid, and providing that whenever any action is brought to recover against a corporation it shall be competent to proceed against any one or more stockholders at the same time, as in case of garnishment, etc., creates a special remedy, which cannot be enforced in California.

In bank. Appeal from superior court, Los Angeles county; Walter Van Dyke, Judge.

Creditors' bill by Edward W. Russell against the Pacific Railway Company and others, in which S. B. Cobb and others filed a complaint in intervention. From a judgment for defendants, and from an order refusing a new trial, said interveners appeal. Affirmed.

E. Walker, W. P. Gardiner, and Allen, Cowrey & Miller, for appellant Russell: S. C. Hubbell and T. Z. Blakeman, for interveners. Chapman & Hendrick, J. D. Bicknell, and Bicknell & Trask, for respondents.

TEMPLE, J. The plaintiff brings this action as a judgment creditor of the Pacific Railway Company, in his own behalf and for other creditors of the corporate defendant and of the Los Angeles Cable-Railway Company, for the appointment of a receiver, for the sale of its property, and that the sum due from stockholders of the Pacific Railway Company on their stock, so far as necessary, may be called in. Numerous stockholders resident in California are made defendauts. A complaint in intervention was filed in Lehalf of numerous persons who claim to be creditors of the Pacific Railway Company in various amounts. These creditors have no joint or common interests whatever, but claim the right to thus join under the provisions of a statute of the state of Illinois, which was proven at the trial. February 10, 1891, Charles H. Morse in the superior court of Cook county, Ill., recovered a judgment against the Pacific Railway Company for a sum of money, and caused an execution to be issued on said judgment, which was afterwards returned nulla bona. Afterwards, upon the averment of the insolvency of the corporation, said Morse caused a receiver to be appointed for said corporation by the said Illinois court. On the 20th day of January, 1891, plaintiff recovered a judgment in the superior court of Los Angeles county against the Pacific Railway Company for the sum of $1,058.48, and thereafter commenced this action, and has procured a receiver to be appointed to impound the assets of the Pacific Railway Company. It is averred, and practically found, that the corporation is utterly insolvent. Judgment was entered for the defendants, and the interveners, having made a fruitless application for a new trial, now appeal both from the order refus ing a new trial and from the judgment.

One reason urged by the respondents why the appeal should not be sustained is that, as

they contend, an action of this character cannot be maintained in this state; that is to say, it is a special remedy given by the statute of Illinois, and can be enforced nowhere else. The law of the state of Illinois, as found by the court, is as follows: By the eighth section of the act under which the Pacific Railway was incorporated it was provided that: "Each stockholder shall be liable for the debts of the corporation to the extent of the amount that may be unpaid upon the stock held by him, to be collected in the manner herein provided. No assignor of stocks shall be released from any such indebtedness by reason of any assignment of his stock, but shall remain liable therefor jointly with the assignee until the said stock be fully paid. Whenever any action is brought to recover against the corporation, it shall be competent to proceed against any one or more stockholders at the same time to the extent of the balance unpaid by such stockholders upon the stock owned by them respectively, whether called in or not, as in cases of garnishment. Every assignee or transferree of stock shall be liable to the company for the amount unpaid thereon to the extent and in the same manner as if he had been the original subscriber." Laws 1871-72, p. 299. By section 25 of the same statute it is further provided that under certain circumstances a creditor who has obtained a judgment against the corporation, and whose execution has been returned nulla bona, may bring suits by joining the corporation against the persons who were stockholders at the time or in any way liable for the debts of the corporation, to compel each stockholder to pay his pro rata share of such debts, or liabilities to the extent of the unpaid portion of the stock after exhausting the assets of the corporation. Further, it authorized courts of equity, on good cause shown, to dissolve the corporation, and close up the corporate business, and to appoint a receiver, who shall in all cases be a resident of the state of Illinois. Counsel for appellants admit that the proceedings provided for in the twenty-fifth section can be taken only in the state of Illinois. It is a special remedy, providing for contribution among the stockholders, and a possible dissolution of the corporation and a winding up of its business. They contend, however, that the eighth section merely creates a liability, which is in the nature of a contract liability, and which is enforceable wherever the stockholder can be found. The general rule upon this subject is very well established. Where a statute creates a right and prescribes a remedy for its enforcement, that remedy is exclusive. Where a liability is created which is not penal, and no remedy is prescribed, the liability may be enforced wherever the person is found. The procedure will, however, be entirely governed by the law of the forum. If the law creating the liability provides for a particular mode for enforcing it, the mode

limits the liability. If it be a contract, the parties here contracted with the understanding that they can be held liable in no other way. Bank v. Francklyn, 120 U. S. 747, 7 Sup. Ct. 757. And such a liability cannot be enforced in another state. Young v. Farwell, 139 III. 326, 28 N. E. 845; Bank v. Rindge, 154 Mass. 203, 27 N. E. 1015; Fowler v. Lamson, 146 III. 472, 34 N. E. 932; Jessup v. Carnegie, 80 N. Y. 441; Erickson v. Nesmith, 4 Allen, 233. By the eighth section of the Illinois statute, above quoted, a special remedy is provided, and, not only so, but plainly it was intended that it should be the only remedy. By the first clause, apparently, an absolute liability is imposed upon the stockholder for the debts of the corporation to the extent of the amount unpaid upon his stock. If this were all, the liability would be primary, and could be enforced without suing the corporation, and without reference to its solvency. In fact, nowhere in this section is it made of any consequence whether the corporation is solvent or insolvent, or whether or not it has assets which could be reached by ordinary writ. The next clause, however, expressly limits the collection of the debt to the mode prescribed, which is by garnishment. And this may be done whether the amount unpaid has been called in or not. Whether this can be done after the assets have been impounded by the appointment of a receiver for the purpose of liquidation will depend upon the laws of Illinois. It is said that it has been there held that it can be done by what is called "equitable garnishment." It would not be so here. The unpaid subscription would, with other assets, pass to the receiver, to be collected and disbursed under the direction of the court. The Illinois remedy cannot be imported here.

I think the question has been passed upon by the courts of Illinois in Pease v. Union, 1 Ill. App. 287, which was a proceeding under the eighth section. The court said: "It will be seen by the terms of this statute a new remedy is provided for the creditors of corporations by providing that 'whenever any action is brought to recover any indebtedness against the corporation, it shall be competent to proceed against any one or more stockholders at the same time, * as in case

We

of garnishment.' There has been some discussion between counsel in the case as to the proper form of procedure by the usee, Miller, to avail himself of this new remedy. There has been no judicial construction of this statute that we are aware of, and we are left to determine just what the mode of proceeding contemplated by the legislature was. think the language employed in the statute is unambiguous, and, fairly interpreted, means that a creditor of a corporation may bring suit in any of the usual forms of action for any indebtedness due to him from such corporation, and, upon suing out summons, may, by virtue of this statute, sue out at the same time a garnishee summons, di

rected to any of the stockholders of such corporation whose subscription to the capital stock thereof is wholly or in part unpaid; and by the service of such garnishee summons upon such stockholder prevent his further payment for such stock to the corporation, but hold the same in abeyance, to await the result of the trial of the original cause; and when a recovery is had (if at all) the garnishee may be then compelled to respond to such judgment creditor instead of paying his said indebtedness to the corporation. This is briefly and substantially the proceeding which we think the state authorizes at the instance of a creditor of a corporation." This language is unambiguous, and shows the construction given to the statute by the courts of Illinois. Independently of this ruling we should have no difficulty in reaching the conclusion that the Illinois statute does not create a liability which can be enforced here. The interveners, therefore, have no standing as litigants in the case, and the order and judgment are affirmed.

We concur: HARRISON, J.; GAROUTTE, J.; VAN FLEET, J.; MCFARLAND, J.; HENSHAW, J.

(113 Cal. 238)

COOPER v. MILLER et al. (No. 18,333.) (Supreme Court of California. June 6, 1893.) TAXATION ASSESSMENT IRRIGATION DISTRICT AND LEVY-PLEADING-EJECTMENT-FINDINGS. 1. Under St. 1887, p. 40 (Irrigation Act) § 18, subd. 3, providing the manner of assessment of city and town lots, it is proper to assess contiguous lots owned by one person, and used together, and on which is a building covering a part of each lot, together, as one parcel.

2. That a levy by the board of directors of an irrigation district, for the purpose of paying interest on the district bonds, and also for current expenses of the district, are both embraced in the same order, the amount for each purpose being stated, does not render the levy invalid.

3. While an election authorizing it is a condition precedent to a valid levy for special purposes under section 41 of the irrigation act, it is not necessary that the order of the board of directors making the levy should recite such election.

4. In ejectment based on a tax deed, where it is essential to plaintiff's case to prove each fact going to establish the validity of his deed, an allegation in the answer of payment of the tax before sale of the property does not create a material issue, requiring a finding thereon, the fact being covered by a finding as to the validity of the deed.

In bank. Appeal from superior court, Colusa county; E. A. Bridgford, Judge.

Action by H. M. Cooper against William Miller and others. Judgment for plaintiff, and defendants appeal. Affirmed.

H. M. Alberry, K. Alberry and Edwin Swinford, for appellants. W. C. Belcher and J. W. Good, for respondent.

GAROUTTE, J. This is an action of ejectment to recover possession of certain town lots. Plaintiff's claim of title is based upon

a tax deed executed by the tax collector of Central irrigation district, upon a sale for a delinquent tax levied by the board of directors of said district. Defendants appeal from the judgment and order denying their motion for a new trial, and claim that the assessment, levy, sale, and deed made thereunder are void. Section 30 of the irrigation act (St. 1887, p. 40) provides: "The matter recited in the certificate of sale must be recited in the deed, and such deed duly acknowledged or proved is prima facie evidence that-First, the property was assessed as required by law; second, the property was equalized as required by law; third, that the assessments were levied in accordance with law; fourth, the assessments were not paid; fifth, at a proper time and place the property was sold as prescribed by law, and by the proper officer; sixth, the property was not redeemed; seventh, the person who executed the deed was the proper officer." Invoking these provisions of the statute, plaintiff introduced his deed in evidence as establishing a prima facie case of title in himself, and rested. It is claimed that the assessment is void because the five town lots were assessed in one parcel, with one valuation upon the whole parcel, and one valuation for the improvements upon the entire parcel. The lots were also sold in one parcel for the nonpayment of the tax. Section 18 of the irrigation act provides that the assessor must assess: "All the property in the district, and must prepare an assessment-book with appropriate headings, in wh ch must be listed and specified in separate columns under the appropriate head: *Three. City and

town lots, naming the city or town, and the number of lot and block, etc., and the improvements thereon."

Is this assessment void as violative of the foregoing requirements of the law? The provisions of this act as to the manner and character of the assessment are duplicated from the provisions of the Political Code pertaining to assessments levied for the purposes of state and county taxation; and defendants, to support their contention, rely upon various decisions of this court made in the construction of those provisions of the Political Code. The principal case may be said to be Terrill v. Groves, 18 Cal. 149. There the assessment was held to be void. But that case is widely variant in its facts from the case at bar. There town lots in two distinct and separate blocks, not even contiguous, while valued separately, were carried out upon the roll in a lump assessment, and a single tax charged up against the lots as a whole. In addition to these salient facts, upon one lot there were improvements, and the tax upon these improvements was charged against all the land. In People v. Morse, 43 Cal. 534, it was held that an entire block or a half block owned by a single individual might be assessed in one parcel, and this notwithstanding the blocks were divided into lots; and,

in sound reason, there is no more cause for assessing a block of land owned by one party in lots, than there is in assessing a section of land owned by a single individual in 80 or 160 acre tracts. The land involved in this litigation consisted of five lots, with a frontage of 25 feet each, adjoining, and all belonging to the defendant Miller. A livery stable was situated upon these lots, and extended over and upon each of them. Upon such a state of facts, we are clear that for the purposes of taxation the entire five lots should be held to be but a single parcel of land, and so assessed. With a building resting upon them all, any other kind of assessment would be improper. To divide the improvement into fifths, and assess an undivided one-fifth thereof upon each lot, would be a practice not contemplated by the law. To hold that the statute requires that the land upon which the Palace Hotel of this city, or any other large building, is situated, should be assessed by lots, and the improvements assessed and apportioned in undivided parts to each lot, would be to declare an absurdity existing in law, where there is no reason whatever for it. The case of Weaver v. Grant, 39 Iowa, 294, is directly in point upon this question, and by its syllabus declares: "The use and nature of the property must determine whether or not several lots assessed to one owner, and sold en masse, should be regarded as one lot. Where two lots were occupied and used for one purpose, the buildings being partly on each, it was held that they might be sold for taxes together."

The board of directors of the district is empowered. by section 22 of the act, to levy assessments to pay interest upon the bonded indebtedness, and by section 41 the board of directors is also authorized to levy assessments for special purposes therein named. Upon October 1, 1889, the board passed the following order and resolution: "Whereas, the assessment roll of Central irrigation district for the year 1889-90 has been completed, and the assessment on the property mentioned therein equalized, and there being two hundred and ninety-two bonds of the district, of the par value of five hundred dollars each, now outstanding, on which the annual interest from July 1, 1889, to July 1, 1890, aggregates the sum of $8,760, it is by the board of directors of said district now here ordered that an assessment sufficient to raise the annual interest on the aforesaid outstanding bonds, and to defray the expenses of the care, operation, management, repair, and improvement of such portions of the canal and works as are completed and in use, including the salary of officers and employés, be, and the same is hereby, levied and ordered collected on each one hundred dollars on the assessed valuation of the property of the Central irrigation district for district purposes as aforesaid, for the second fiscal year 1889-90, as follows, to wit: For bond fund, thirty cents;

for general fund, twenty cents; total assessment, fifty cents on each one hundred dollars." It is now claimed by defendants that the aforesaid order is void, upon the ground that a double levy, or a levy for a double object and purpose, is joined in one order of the board. There is nothing in this objection. It is plainly apparent from the order what action was taken by the board. There was no reason why a levy for two different objects could not be incorporated in one order, and here the amount and character of each levy are fully and clearly set forth.

It is claimed that the levy for special purposes was in excess of the power of the board, inasmuch as the electors of the district, at an election held for that purpose, had not authorized the board to make it. It is conceded that if no election was held that fact would be fatal to the validity of this levy. Tregea v. Owens, 94 Cal. 313, 29 Pac. 643. But defendants offered no evidence whatever upon the question of an election, and, plaintiff having established a prima facie case by the introduction of his deed, in the absence of other evidence we are bound to assume that an election as authorized by law was held, for the deed is made by statute prima facie evidence that the assessments were levied in accordance with law.

It is claimed that the order of the board of directors in making the levy contains no recital that an election had been previously held, and, therefore it must be assumed that no election was held. While it is true that the election is a condition precedent to the making of a valid levy by the board, yet there is no statute requiring the order of levy to recite the fact of a previous election, and, on principle, there is no reason why it should do so. If such recital was contained in the order, it would not be conclusive upon the owner of the land assessed. He could still go behind it, and show its falsity. It is the fact of the election, and not a statement in the order that an election was held, which gives the board power to make the levy. Unless some provision of law required such a recital to be set out in the order making the levy, the absence of it is no evidence that an election was not held, authorizing the board to act in the premises. Although the election is a condition precedent to the making of the levy, there are many other conditions precedent of equal importance and gravity, as that the property must be assessed as required by law, or the property must be equalized as required by law. No levy would be valid unless these things were done, yet a recital of them in the order would not conclude inquiry as to the truth or falsity of the recital. These views are fully supported by People v. Hagar, 49 Cal. 229. Counsel cite a few Michigan cases as supporting his contention. We think they fail to reach the mark, but, aside from that, there is no such rule of law.

It is insisted that the collector's deed, when

offered in evidence by plaintiff, should have been rejected as invalid, upon the ground that the assessment of the entire five lots as one parcel of land rendered it void. We have disposed of this objection in discussing the first proposition advanced. A great portion of the examination of the witness Welch related to the manner and character of the assessment of other property situated within the district. Such evidence was clearly objectionable as immaterial, and, as to the other matters upon which he was questioned, we see no error in the record.

The complaint in this case is the simple and ordinary complaint in ejectment. The answer contains a denial of ownership, and, among other things, alleges that the assessment was fully paid and discharged prior to the sale. At the trial, evidence was introduced upon this question of payment, and defendants now claim that the allegation in the answer of payment created a material issue, and that the trial court has failed to make any finding of fact thereon. This contention is unsound. The allegation of payment is not a material allegation in the pleading. Payment or nonpayment was a mere matter of evidence. Under the general denial, defendants were entitled to prove payment of the assessment, and, such being the fact, the allegation was not material or necessary. Plaintiff introduced his deed, and thereby established the fact, prima facie, that the assessment was not paid. It was a material part of his case to show nonpayment, and he showed it by an introduction of the deed. When the court made a finding of fact that plaintiff was the owner of the land, it necessarily followed that the deed was a valid deed; and, finding that the deed was a valid deed and carried title, it necessarily found as a fact that the assessment bad not been paid prior to the sale. Ownership was the ultimate fact to be tried, and, under a general denial, defendants might prove any fact going to show that plaintiff had no right of entry at the commencement of the action. The allegation of the answer that defendant had paid the assessment, and all other kindred allegations contained in the answer, only amounted to a denial of plaintiff's title. For the foregoing reasons the judgment and order are affirmed.

court where entered in violation of law does not affect its admissibility as evidence in another court.

Department 2. Appeal from superior court, city and county of San Francisco; William R. Daingerfield, Judge.

J. W. Alden was convicted of forgery, and appeals. Affirmed.

Geo. Hayford, for appellant. Atty. Gen. Fitzgerald, for the People.

MCFARLAND, J. The defendant was convicted of forgery, and appeals from the judgment, and from an order denying his motion for a new trial. The evidence warranted the jury in finding these facts: That appellant unlawfully got possession of a certain certificate of deposit for $140, made by the California Savings & Loan Society, and payable to the order of "Chas. R. Woodward" on the return of the certificate properly indorsed; that he falsely and feloniously, and for the purpose of fraudulently procuring the money mentioned in said certificate, forged on the back thereof the name "Chas R. Woowared"; that he then gave the certificate, thus in appearance properly indorsed, to an acquaintance named Perrine, who was in the employment of Armes & Dallam, a business firm in San Francisco, and asked him to get it cashed, as he (appellant) did not want to lose time; that he told Perrine that the money was his, but had been paid to Woodward for him, and Woodward had deposited it, and taken a certificate in his (Woodward's) own name, and had indorsed it; that Perrine turned it over, and saw that it was indorsed, but did not notice the difference in spelling between the name indorsed and the one in the body of the instrument; that Perrine took the certificate to the bookkeeper of Armes & Dallam, and asked him to cash it; that the bookkeeper referred the matter to Mr. Armes, one of the firm, who, seeing it indorsed, supposed it was all right, and indorsed it with the firm name, and gave a check for the amount, whereupon the bookkeeper paid the $140 to Perrine, who gave it to appellant, who upon the next day left the state. In a day or two, the false indorsement was discovered, and appellant was afterwards arrested in Oregon.

Appellant moved to dismiss the information; demurred to the information; objected to certain evidence; moved the court to instruct the jury to acquit; asked certain instructions, which were refused; and made a motion in arrest of judgment. In all said matters the rulings of the court were adverse to appellant, and he took exceptions to the rulings; but it is unnecessary to notice them separately, for, upon examination, they are all found to rest upon the proposition that the facts above recited do not make a case of forgery, on account of the difference in the spelling in the indorsement of the last part of the name "Chas. R. Wood