Crim. No. 429.

Third Appellate District. September 19, 1918. *THE PEOPLE OF THE STATE OF CALIFORNIA, Plaintiff and Respondent, v. NAPOLEON LAMATTINA, Defendant and Appellant.

[1] CRIMINAL LAW-PRONOUNCEMENT OF JUDGMENT-APPLICATION FOR PROBATION-TIME.-Upon the conviction of a defendant in a criminal action, where probation is applied for, the trial court is authorized to pronounce judgment of sentence at any time within twenty-five days after the date of the verdict, without the consent to a postponement by the defendant, said number of days consisting of the five days within which time section 1191 of the Penal Code provides that the court must impose sentence, where probation is not asked for, and the twenty days' additional time to which the court, in the exercise of its discretion, may postpone the announcement of sentence, where probation is applied for.

[2] ID. RUNNING OF TIME.-Under section 1191 of the Penal Code, the time allowed for pronouncing judgment begins to run, not on the day the verdict is rendered, or plea entered, but with the day immediately succeeding.

[3] ID. MOTION FOR NEW TRIAL-TIME FOR DETERMINATION OF RIGHT TO PROBATION.-Under section 1191 of the Penal Code, a defendant in a criminal action, upon conviction, is not only entitled to apply for probation and have that question determined before his motion for a new trial is heard and determined, but is entitled to move for a new trial, if he so chooses, and to have the motion determined, after probation is denied him.

Appeal from the Superior Court of Merced County-E. N. Rector, Judge. For Appellant-L. J. Schino, Terry W. Ward.

For Respondent-U. S. Webb, Attorney-General; J. Chas. Jones, Deputy Attorney-General.

In petitioning for a rehearing of this case, counsel for the defendant declares in his petition that in our former opinion we failed to consider and pass upon the point-the principal and controlling point in the case-that where judgment is not pronounced in a criminal case within the time limited by section 1191 of the Penal Code the defendant is entitled to a new trial without regard to whether he has or has not consented to the delay. It is further stated in the petition: "We again point out that in the case at bar a motion for a new trial was made which was not determined within fifteen days after verdict of guilty."

We thought that in our original opinion both the above stated propositions were quite fully considered and a decision thereof arrived at and announced. [1] In the hope of making ourselves clearer to counsel, however, we will here repeat what therein we held, as we still hold, that, under the ruling in the case of Rankin v. Superior Court, 157 Cal. 189, probation having been applied for in this case by the defendant, the trial court was authorized to pronounce judgment of sentence at any time within twenty-five days after the date of the verdict, without the consent to a postponement by the defendant, said number of days consisting of the five days within which time section 1191 provides that the court must impose sentence, where probation is not asked for, and the twenty days additional time to which the court, in the exercise of its discretion, may postpone the pronouncement of sentence, where probation is applied for. [2] We further held that, according to the construction given section 1191 of said code in the Rankin case, the language thereof, "not less than two nor more than five days after the verdict or plea of guilty", means that the time so allowed for pronouncing judgment begins to run, not on the day the verdict is rendered or plea entered, but with the day immediately succeeding that upon which the ver dict has been rendered or the plea of guilty entered. Under this construc

27 Cal. App. Dec. 251.

tion and the facts of this case, the court did not of its own motion extend the time beyond the twenty-five days within which, under the circumstances, it was authorized to postpone the matter of sentence without the consent of the defendant. The further postponement, as we show in our original opinion, was, according to the record, with the consent of the defendant, and did not extend beyond the time to which the defendant is himself authorized by the statute to give legal consent.

As to the second point above suggested, we have only to say that in our former opinion we disposed of the proposition involved therein to our satisfaction. It would seem to be unnecessary to remark that, under the circumstances of this case, it obviously became, by reason of the application for probation, absolutely impossible for the court to have determined or disposed of the motion for a new trial within fifteen days after the date of the verdict. If it were necessary to hold that that provision was in all cases or under all circumstances to be strictly followed, then the whole section would involve the very exemplification of absurdity. So to hold would require it to be held that the question of probation would either have to be considered after a motion for a new trial was determined or not considered at all. Of course, the statute does not contemplate such a situation. [3] The defendant, under the statute, is not only entitled to apply for probation and have that question determined before his motion for a new trial is heard and determined, but is entitled to move for a new trial, if he so chooses, and to have the motion determined, after probation is denied him. Section 1191 prescribes no particular time for disposing of such a motion after probation is denied, and we held in our original opinion, as we now hold, that in that case the court may take any reasonably necessary time for considering and disposing of the motion and that in this case the time taken for such purpose did not involve an unreasonable delay. Rehearing denied.

We concur:

CHIPMAN, P. J.
BURNETT, J.

HART, J.

Civil No. 2316. First Appellate District. September 20, 1918. FRANK J. KLIMM et al., Plaintiffs and Respondents, v. HENRY COWELL LIME AND CEMENT CO., Defendant and Appellant.

[1] MECHANIC'S LIEN-ACTION FOR FORECLOSURE-DATE OF COMPLETION OF BUILDING PLEADING-FINDING-EFFECT OF STIPULATION.-In an action for the foreclosure of a mechanic's lien, an averment in the complaint and a finding that the building was completed on or about a stated date, is not a ground for reversal of the judgment, where it was stipulated at the trial by all parties that the building was completed on the alleged date.

[2] ID.—INTEREST.-In an action for the foreclosure of a mechanic's lien, interest is allowable on the amount of the claim from the date of completion.

Appeal from the Superior Court of the City and County of San Francisco -James M. Troutt, Judge.

For Appellant-Hatch & Hatch.

For Respondents-Daniel A. Ryan, Louis A. Dunkley, W. W. Allen, H. K. Ellis, E. T. Cooper; Pillsbury, Madison & Sutro; Samuel B. Russell, G. R. Perkins; Adams & Adams; Nowlin, Fassett & Little; Lent & Humphrey; Adolph Cohen.

This is a consolidated action for the foreclosure of certain mechanics'

liens against the property of defendant Henry Cowell Lime and Cement Company. It resulted in a judgment in favor of the lien claimants for the amounts of their respective claims, with interest at the legal rate from November 15, 1914, the date found by the court to be the date of completion, and for the foreclosure of the liens as prayed. The defendant appeals.

The liens were all perfected according to law and filed in time. Some outstanding facts of the case are of interest. The defendant, Henry Cowell Lime and Cement Company, entered into a contract with Day & Sons to erect and complete a building for $70,000. At the trial of this action it was agreed by all the parties that the building was completed on November 15, 1914, and the court found that the building was in fact completed on or about that date. Sufficient funds were due to the contractor from the defendant at the time of the trial to pay all these claims, with the interest allowed by the court. The contractor did not defend against the claims but defaulted. It was proven at the trial that Day & Sons did not dispute the claims at all, and it does not appear that the Cement Company disputes any of the foregoing facts. It appeared at the trial, also, that Day & Sons gave a general order to the Cement Company to settle all of these claims. At the outset of the trial its attorney stated to the court that he had placed the matter before his client, and advised it that the trial was to be had on that day, and that his client had furnished him with no defense to the action.

In face of this rather extraordinary record it is now claimed by the Cement Company that the claims of lien were not filed in time, as they were filed more than thirty days after completion; but no notice of completion was filed, so the lien claimants had ninety days after actual completion within which to file their claims, and the claims were on file within this period. (Code Civ. Proc., 1187.)

[1] Another ground urged for reversal is that it was averred in the complaints and found by the court that the building was completed on or about the 15th day of November, 1914; and it is contended that this averment is not sufficiently certain, but that the exact date of completion should have been alleged and found. The defendant raised this point by demurrer to the complaints, and cites Cohn v. Wright, 89 Cal. 86, in support of his position. But, in view of the facts above stated, and especially of the stipulation of the defendant as to the time of completion, which stipulation was sought from two of the plaintiffs by defendant's counsel himself at the trial, the defendant cannot be said to have been prejudiced in any substantial right by the ruling on demurrer, nor by the form of the finding, and this case will not be reversed on that ground, although the case of Cohn v. Wright supports the contention of defendant's counsel.

[2] It is also contended by defendant that no interest can be allowed in mechanics' lien cases; and counsel cites section 1183, Code of Civil Procedure, in support of this contention; but the point is decided against him in Hubbard v. Jurian, 26 Cal. App. Dec. 79. It will be noted that it is not contended that any of the several amounts of interest allowed was too large, but only that no interest whatever should have been allowed in the case.

The other points made for reversal here are all equally technical with those to which we have called attention, except that in the case of the plaintiff Klimm judgment was entered for $60 more than called for in the findings. We have no doubt that this excess would have been conceded had attention been called to it before this appeal was taken; but as it is

an undeniable error, though evidently caused by oversight, the judgment must be modified by reducing the amount awarded to Klimm by the sum of $60, and this the superior court is directed to do.

In all other respects the judgment is affirmed.

We are almost persuaded, from a consideration of this entire record, that the appeal was taken for delay only, and, therefore, his costs on appeal will be allowed Klimm as well as the other respondents.

We concur:

LENNON, P. J.

STURTEVANT, J. pro tem.

BEASLY, J. pro tem.

Civil No. 2570. Second Appellate District. September 19, 1918. ELIZABETH SANDER, Plaintiff and Respondent, v. LOS ANGELES RAILWAY CORPORATION (a Corporation), Defendant and Appellant. [1] NEGLIGENCE-RAILWAY PERSONAL INJURIES-LOCATION OF APPLIANCEEVIDENCE-PRESUMPTION.-In an action for damages for personal injuries against a railway company, alleged to have been caused by the negligence of the defendant in placing a bumper on its car in such a position that the skirt of the plaintiff caught upon the appliance, throwing her to the street, the plaintiff, by showing that her skirt caught upon the bumper and that the bumper was an appliance connected with the car, is entitled to the presumption of negligence until the defendant has excused itself by evidence.

[2] ID. PREVIOUS USE WITHOUT CAUSING ACCIDENT-EVIDENCE OF CAREQUESTION OF FACT-JURISDICTION OF APPELLATE COURT.-In such an action, proof that the appliance had been in use for a long period of time without causing an accident would not, as a matter of law, establish the fact that the railway company was not negligent or that as a carrier it had done its full duty toward the plaintiff as a passenger, but where, from the location of the appliance and the character of its construction, the question is such that reasonable minds might differ as to the negligence of the railway company, the question was one of fact for the jury, or the trial court sitting without a jury, and the appellate court is without power to change the conclusion reached in the lower court.

Appeal from the Superior Court of Los Angeles County-Charles Wellborn, Judge.

For Appellant-Gibson, Dunn & Crutcher; Norman S. Sterry.
For Respondent-Park & Park; Wheaton A. Gray.

Defendant appeals from a judgment entered in favor of plaintiff and from an order denying its motion for a new trial.

The action was to recover damages alleged to have been suffered by the plaintiff through the negligence of the defendant. Defendant was a common carrier of passengers and plaintiff was a passenger on one of its electric cars in the city of Los Angeles when she suffered her alleged injuries. The car upon which plaintiff was riding was at a standstill, having stopped to permit the discharge of passengers. Plaintiff was preceded from the car by her husband. As she reached the exit space opposite the steps (there being two of the latter) she had a package in her right hand and took hold of the hand guard with her left. As she stepped downward upon the steps her skirt was caught on a protruding knob affixed near the floor at the left hand of the exit, and she was thrown to the street, where she struck upon her back. In her complaint the negligence charged against the defendant was that the knob was negligently placed in its position by the defendant and so placed as to constitute a dangerous contrivance. The case was tried before the court sitting without a jury, and by the decision of the trial

judge the sum of $2,500 was awarded to the plaintiff. On this appeal the defendant makes no contention against the amount of damages awarded or the extent of plaintiff's injuries. The sole contention is that no negligence whatsoever was shown by reason of which the defendant was chargeable for any amount of damages. The knob upon which plaintiff's skirt caught was a small contrivance which served as a bumper to intercept the sliding iron gate which closed the exit of the car. There were two of these bumpers, the one about which complaint is made being located four inches from the floor of the car, and the other near the top of the door, about six feet from the floor. There being no dispute in the evidence as to the location of the bumper or the manner of construction of the car at the place of exit, we may use for purposes of illustration two drawings attached to appellant's brief which it is agreed are correct: