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plaintiff's failure to appear on the trial except | 8. NEW TRIAL–Motion-SCOPE OF REMEDY. on proof of the service of five days' notice of Where a will contest was dismissed for trial required by Code Civ. Proc. $ 594. contestant's failure to appear, and no trial of [Ed. Note. For cases in point, see vol. 17,

the issues of fact was ever had, the case was Cent. Dig. Dismissal and Nonsuit, $8 130-152.j

not one for a motion for a new trial, 2. APPEAL-PREJUDICE-PRESUMPTIONS.

9. APPEAL - EXCEPTIONS, BILL OF - AFFI Where, on direct appeal from a judgment

DAVITS-INCORPORATION. of dismissal, it affirmatively appears that the

In order to make a record of a showing

by affidavits suflicient to establish error in the dismissal was made without any showing to the

decision of a motion on which affidavits were court of notice to plaintiffs of the time of trial

or could have been used, the affidavits used and or waiver of such notice, prejudice would be

the evidence taken on the hearing, must be aupresumed, and the judgment of dismissal re

thenticated by being incorporated in a bill of versed.

exceptions. [Ed. Note.-For cases in point, see vol. 3,

(Ed. Note.-For cases in point, see vol. 3, Cent. Dig. Appeal and Error, $S4038, 4015,

Cent. Dig. Appeal and Error, $ 2116.] 4016.) 3. TRIAL-NOTICE.

In Bank. Appeal from Superior Court, Trial of a will contest was fixed for

Merced County; E. N. Rector, Judge. November 14, 1904, at which time a motion for Contest of the will of Thomas Claiborn continuance was granted on payınent of costs, Dean, deceased. From an order or judgand an order made continuing the case for

ment of dismissal, and from an order refustrial to February 7, 1905. On January 13, 1905, defendants gave notice of an application ing to vacate such order and grant a new to be made on January 23d, for an order for trial, contestants prosecute separate appeals. additional security for costs, which order was Reversed. granted on January 24th, and stayed all proceedings until the undertaking was filed, and James T. Boyd, A. N. Salisbury, E. D. directed the filing thereof within 10 days. No McCabe, B. F. Fowler, and J. W. Knox, for order was thereafter made resetting the case for appellants. F. W. Henderson, for respondent. trial, and no notice was given as to the time of trial, which was moved by defendants on February 7th. Held, that the order for additional ANGELLOTTI, J. These are two separate security for costs vacated the order setting appeals on one transcript; the first taken the case for trial on February 7th, so far as to require that the matter be again set for trial,

April 11, 1905, from an order or judgment or the giving of a new notice of trial.

of dismissal (made February 11, 1905) of 4. Costs-SECURITY-TIME TO FILE.

certain proceedings instituted for the revocaWhere, after a will contest had been set tion of the probate of a document purporting for trial, contestants were ordered to give ad- to be the last will of deceased, and the secditional security for costs, a provision of the order requiring such security to be furnished

ond, taken June 6, 1905, from an order rewithin 10 days was ineffectual for any pur

fusing to vacate said order or judgment and pose, contestants being entitled by Code Civ. / grant a new trial (made May 29, 1905). Proc. $S1036, 1037, to 30 days, after the

The dismissal was granted on motion of the making of the order within which to comply therewith.

defendants upon the ground that the plain5. TRIAL-NOTICE.

tiffs failed to appear on the trial. The apWhere contestants in a will contest were

pellants are all of the 23 contestants, except directed to give additional security for costs, one, Nathan Morrison, who, at the time the and all proceedings including the trial were matter was called for trial, was represented stayed contestants complied with the order, which they were entitled to do within 30 days,

by separate attorney, appeared at the time the giving of the undertaking by their coplain

set for the trial, and there practically abantiff before the expiration of such time, and on doned his contest. Originally there were two the day the case had been previously set for

groups of contestants, one of 21, including trial, did not justify a trial and dismissal of the proceedings on that day for contestants

Morrison, represented by one set of attorfailure to appear, without a further notice or neys, and the other of two, represented by trial.

another set of attorneys. Whether or not the 6. APPEAI-JUDGMENT-RECORD-AFFIDAVITS. lower court erred in giving judgment of dis

An affidavit of one of defendant's attorneys, missal must be determined solely in the light used on the hearing of a motion to set aside a judgment of dismissal, constitutes no part of

of the facts shown by such papers in the the record on appeal from the judgment, and can- transcript as may properly be held to connot be considered thereon, though properly au- stitute a part of the judgment roll and the thenticated.

settled bill of exceptions. Certain affidavits [Ed. Note.-For cases in point, see vol. 3,

contained in the transcript, purporting to Cent. Dig. Appeal and Error, $8 2394-2396, 2408.]

have been subsequently filed and used on

the motion to set aside the judgment and 7. DISMISSAL AND NONSUIT VALIDITY SUBSEQUENT ACTS.

grant a new trial, which affidavits are not Where a will contest was erroneously tried contained in any bill of exceptions, cannot, and dismissed in contestant's absence and with- of course, be considered in the determination out proper notice of trial being given contestants,

of such question. it was immaterial that after submission of the motion to dismiss, and prior to the actual dis

Most of the plaintiffs were nonresidents missal, the judge asked one of contestant's at- of the state of California. By the bill of torneys whether he had notice of the motion exceptions settled for use on appeal from to dismiss, and desired to take any steps there

the judgment, the following facts appear: ander prior to the ruling, and that the attorney replied that he would not do anything in the

Prior to answers filed, a demand that plaininatter at present.

tiffs give security for the costs and charges that might be awarded against them, as son, or as to any intention on the part of provided by section 1036 of the Code of Civil defendants to ask for the trial of the conProcedure, was regularly served and filed, test at that time. The court thereupon orand plaintiffs subsequently regularly com- dered the matter submitted, and, subsequentplied with this demand. Issues of fact hav


. ly, on February 11, 1905, made its' order ing been joined, a demand for a trial by jury | granting the motion, whereupon the clerk was regularly made by defendants, and No- of the court noted said order on his register vember 14, 1904, was fixed for the trial of of actions. the contests. At the last-named time, a mo- Other facts, such as that the trial of antion of plaintiffs for a continuance on the other case was actually in progress before ground of absence of plaintiffs and witnesses the court on February 7th, at the time this was granted on payment of certain costs, case was called for trial, and that, although and an order was made continuing the trial a jury had been demanded, no jury had been to February 7, 1905, at 10 o'clock a. m. summoned or was in attendance, and that On January 13, 1905, defendants gave notice no witnesses were in attendance, also apof an application, to be made on January 23, pear; but these facts would probably be 1905, for an order for an additional under- material only on a subsequent motion to retaking in the sum of $1,500, as security for lieve from the judgment on the ground of costs, and for a stay of proceedings until surprise, inadvertence, and excusable neglect. the same should be given. This application The facts already stated are the only matters having come regularly on for hearing, the shown by the record that are material in court, on January 24, 1905, made an order : determining as to the correctness of the First, requiring plaintiffs to file such an action of the lower court in giving judgment additional undertaking in the sum of $300; of dismissal. Section 594 of the Code of second, staying all proceedings until such Civil Procedure provides: “Either party undertaking was filed; and, third, directing may bring an issue to trial or to a hearing, that said undertaking be filed within 10 days. and in the absence of the adverse party, unThe attorneys for plaintiffs notified the court less the court, for good cause otherwise dithat it would be necessary for them to have rect, may proceed with his case, and take a 30 days within which to file such undertak- dismissal of the action, or a verdict or judging, on account of the absence of their clients ment as the case may require; provided, from the state, and claimed that they were however, if the issue to be tried is an issue entitled to such 30 days under the provisions of fact, proof must first be made to the satof section 1037 of the Code of Civil Pro- isfaction of the court that the adverse party cedure. No order was made on January 24, has had five days' notice of such trial.” A 1905, or subsequent thereto, relative to the court should not dismiss an action under subtime of trial of said contest, and no notice division 3 of section 581 of the Code of was ever given to appellants at or subsequent Civil Procedure, for failure of the plaintiff to the proceedings of January 21, 1903, as to appear on the trial, except upon proof to the time of trial. On February 6, 1905, made in compliance with the above quoted one J. J. Griffin was regularly substituted proviso of section 594 of the Code of Civil as attorney for plaintiff Nathan Morrison, Procedure, designed to prevent the manifest who had hitherto been represented by the at- injustice of dismissing a party's action, or torneys for the group of 21 contestants, and trying it in his absence, because of his failwho appears to have been a resident of ure to appear at a time at which he could California. On February 7, 1905, at 10 a. not be held to have had notice that the tri m., said plaintiff Morrison filed the necessary would be had, or that any proceeding would additional undertaking. This was filed with- be taken against him. When upon direct

. out any notice to any of the other plaintiffs appeal from the judgment of dismissal, it or their attorneys, and none of them knew affirmatively appears that such a dismissal anything about his intention to file the same has been had against a party, without any or about the filing until after the submission showing having been made to the court of of the motion to dismiss. At 10:10 a. m. notice had by such party of the time of trial, on February 7, 1905, the proceeding was and waiver of such notice on his part is not called for trial by the court. None of the shown, it seems clear that the judgment of plaintiffs or their attorneys were present, ex- dismissal is erroneous, and should be reverscept Morrison and his attorney. When the ed. In the absence of a showing to the conmatter was called, defendants answered

trary, such an error must be deemed preju"ready," as did plaintiff Morrison, who fur- dicial. ther stated that he had no evidence to offer. We are not here concerned with the quesDefendants, having shown to the court that tion as to what would constitute a sufficient the additional undertaking had been filed notice, or sufficient proof of such notice, to that morning, moved that the proceeding authorize a court to proceed to a disposition be dismissed for failure on the part of the of a cause in the absence of a party. Here plaintiffs to appear at the time set for the

there was no notice whatever other than trial of the cause. No proof whatever was that afforded on November 14, 1904, by the made as to any notice given to appellants order continuing the trial, on motion of plainas to the filing of the undertaking by Morri. tiffs, to February 7, 1905, at 10 o'clock a. m. If it were not for the subsequent proceedings without notice. The mere giving of the unhad in January, 1903, this order, made on dertaking by their co-plaintiff Morrison on motion of plaintiffs, would undoubtedly be February 7th was no more effectual in this held effectual to dispense with further no- regard than would have been a waiver at tice of the time therein designated. But we such time by defendants of the benefit of are satisfied that it must be held that the the order requiring additional security. Apsubsequent order of January 24, 1905, made pellants were entitled to notice of any on the motion of defendant, practically va- change in existing conditions which would cated the order fixing February 7th for trial, render a trial of the issues possible. In view so far as the same could be held to operate of the order of January 24, 1905, the trial as notice to appellants that the trial would court, before dismissing the proceedings for then be had, and left the matter either to be failure of appellants to appear, should have again set for trial when the undertaking re- required proof that appellants had notice quired was given, or triable at the original that the additional security would be waivdate only upon new notice showing that a ed and a trial insisted on by defendants at trial would then be had or insisted on by the time originally set, or notice that their the defendants. who had procured the stay coplaintiff had given such an undertaking of the proceedings. Under the provisions as would make a trial possible under the of sections 1036 and 1037, plaintiffs had 30 terms of that order. The record on appeal days from the making of the order of Jan- from the judgment of dismissal shows that uary 24, 1903, within which to give the ad- no such proof was made to the court, and ditional undertaking thereby required, and also fails to show that appellants had any the direction in such order that such under- such notice in fact. taking be given within 10 days was inef- We are not unmindful of the fact that in fectual for any purpose whatever. l'nder an affidavit of one of defendants' attorneys, said sections, a failure on the part of plain- said to have been used on the hearing of the tiffs to give the additional undertaking with- motion to set aside the judgment of dismisin 30 days would warrant the dismissal of sal, it is stated that appellants did have nothe proceedings, and this was the only pen- tice that defendants would, if such underalty prescribed by law for a failure to give taking were not filed by February 7th, at security. By the order made, in accord with

10 o'clock a. m., waive the additional secuthe demand of defendants and in strict ac- rity, and insist upon a trial, but this afcord with the provisions of section 1036 of fidavit, as already stated, constitutes no part the Code of Civil Procedure, all proceedings of the record on appeal from the judgment, including the trial, were directed to be stay. and it cannot be considered thereon, even if ed until plaintiffs should give such addition- it were properly authenticated. The stateal undertaking. Plaintiffs were thus no- ment in the bill of exceptions to the effect tified by the express terms of the order of that within a day or two after the submisthe court, that if compliance with said or- sion of the motion to dismiss, and prior to der for additional security was insisted on the actual dismissal, the judge of the trial by defendants, which, in the absence of no- court asked one of the attorneys for one tice to the contrary, they had the right to group of contestants whether he had noassume would be the case, no trial could be tice of the motion to dismiss, and whether had until they gave the additional undertak- he desired to take any steps therein prior ing, the giving of which might legally be to the ruling of the court thereon, and that deferred, and so far as appellants are con- the attorney replied that contestants would cerned was deferred, until long after the

not at the present time do anything in the time originally fixed for trial. Under such matter, but would simply let it stand as it circumstances, it appears too clear for ques- was, is entirely immaterial. Whether or tion that these appellants cannot be held to not the dismissal should be granted depended have had any notice that the trial would upon the facts existing and the showing or could be had on February 7, 1905. Sot made at the time of the making and submishaving themselves given the required un- sion of the motion, and plaintiffs were not dertaking, having no notice that their seced

required by this subsequent notice from the ing resident coplaintiff intended to pursue judge to take any proceedings in order to the most remarkable course of assuming the save their legal rights. If the motion made burden for them and giving such bond, in and submitted without notice, and in their crder that the stay directed might be avoid- absence, was erroneously decided, they could ed and judgment given against them, and then take such proceedings as the law afhaving no notice that defendants woulil forded them for a review of such decision. waive the benefit of the order they had them- The statement of the attorney to the judge selves obtained staying proceedings until giv- was nothing more, in effect, than a statement

, en security for costs, they had the right that appellants would stand on their legal to rely on the order of January 24, 1905; rights. and, so relying, to assume that the trial In view of our conclusion that the judgcould not be had at the time originally ap- ment of dismissal must be reversed, it is unpointed, and that no proceeding against them necessary to consider the appeal from the would be taken at that time in such matter, subsequent order refusing to vacate the judgment and grant a new trial. Of course, in dence taken upon the hearing of such motion. view of the fact that no trial at all had been The judgment or order of dismissal aphad of the issues of fact, and the proceeding pealed from is reversed. had been dismissed without any trial for failure of appellants to appear, the case was We concur: SHAW, J.; SLOSS, J. not one for a motion for a new trial, and so far as the motion made was one for a new trial, it was undoubtedly properly denied.

(149 Cal. 485) It is possible, however, that the motion made In re DAVIS' ESTATE. (Sac. 1,475.) be properly considered as having been par- (Supreme Court of California, July 26, 1906.) tially for relief under section 473 of the Code 1. ADMINISTRATORS-APPOINTMENT - CONCURof Civil Procedure, on the ground of excu- RING JURISDICTION-ATTACHMENT. sable neglect, surprise, etc. Whether it

Where a nonresident died, leaving prop

erty in two or more counties, the public adcould be so considered, and whether the

ministrator of the county first filing a petition showing made on the hearing of the motion in the superior court for administration of the was such as to require the lower court to estate is entitled to appointment, precluding a grant the relief sought, are, as already said,

court of another county from taking jurisdic

tion, immaterial, in view of our conclusion upon

[Ed. Note.For cases in point, see vol. 22, the appeal from the judgment. In respect Cent. Dig. Executors and Administrators, 88 24, to that showing, it is, however, proper to 132-140, 177.] note that a fidavits printed in the transcript 2. SAME-APPOINTMENT-RIGHT TO CONTEST. and claimed to have been used on the lear

Where the superior court of a county aping, are not incorporated in any bill of excep

pointing a public administrator as administrator

of the estate of a nonresident had no power to tions, and some of them are not even indors

appoint him because proceedings had been preed by the judge as having been used on the

viously instituted for the appointment of another hearing. It has several times been pointed in another county, the administrator so illegally out by this court that, in order to make a

appointed was not a party in interest entitled to record of a showing by affidavits sufficient

oppose the appointment of an administrator in

the county in which jurisdiction had attached. to establish error on the part of the lower

[Ed. Note.-For cases in point, see vol. 22, court in the decision of a motion upon which Cent. Dig. Executors and Administrators, $ 95.] affidavits were or could have been used, in the face of the presumption of correctness

In Bank. Appeal from Superior Court, and regularity which attaches as to the ac

Tulare County; W. B. Wallace, Judge. tion of lower courts upon such motions, the

Contest between the public administrator affidavits used and evidence taken on the

of Tulare county and the public administrahearing below must be authenticated by be

tor of Fresno county to determine which of

the two was entitled to administer on the ing incorporated in a bill of exceptions. The Indorsement of the judge on certain af

estate of Jane Davis, a nonresident deceased fidavits, to the effect that the same were

person. From a judgment in favor of the used on the hearing is not sufficient, for it

public administrator of Tulare county, the does not show or raise any presumption that

administrator of Fresno county appeals. such affidavits constituted all the affidavits

Affirmed. used and evidence taken, and the presump- Everts & Ewing, M. F. McCormick, Trution in favor of the order is that other af. man & Oliver, and Bishop, Wheeler & Hoefidavits and evidence were received on the fier, for appellant. Carter P. Pomeroy, Han. hearing, sufficient to support the order made. nah & Miller, Herman 0. Miller, and Frank The only way by which this presumption H. Short, for respondent. can be overcome is by a bill of exceptions purporting to show all the material ericence SLOSS, J. As stated by the appellant in received, whether by affidavit or otherwise.

his brief, "this action is a contest, simply, Rule 29 of this court (78 Pac. xii), in terms,

between the public administrator of Tulare requires that "in all cases of appeal to this county and the public administrator of Frescourt from the orders of the superior courts, no county as to which one has the better the papers and evidence used on the hearing right, under the existing circumstances, to of the motion must be authenticated by in- administer the estate." The decedent was a cluding the same in a bill of exceptions, ex

resident of the state of New York, and left cept where another mode of authentication estate in various counties of this state. The is provided by law." There is no other mode appellant, Chittenden, the public adminisprovided by law for the authentication of trator of Fresno county, appeals from an oraffidarits used on the hearing of such a mo- der of the superior court of Tulare county tion, as was here made. See Skinner v. appointing the respondent, Dungan, the pubHorn 144 Cal. 278, 77 Pac. 001; Cahill v. lic administrator of Tulare county, adminBaird, 138 Cal. 691, 72 Pac. 342; Melde v. istrator of the estate. The appellant had Reynolds, 120 Cal. 234, 52 Pac. 491; Rams. theretofore been appointed as administrator bottom v. Fitzgerald, 128 Cal. 75, 60 Pac. of the same estate by the superior court of 522. It devolved upon plaintiffs appealing Fresno county, although his petition for apfrom the order denying their motion, to have pointment was filed several days later than settled a bill of exceptions showing the evi- Dungan's petition in Tulare county. The ap

87 P.-2

pellant's main contention is that the superior, scription, or by way of estoppel, where, in court of Fresno county, having first heard

offering the deed, he did not state any such inand passed upon an application for letters

tention or offer any such additional evidence. of administration, had sole and exclusive

[Ed. Note.--For cases in point, see vol. 46,

Cent. Dig. Trial, $ 118,7 jurisdiction of the estate, and that the superior court of Tulare county was without

Department 1. Appeal from Superior jurisdiction to make the order appealed from.

Court, San Joaquin County ; Frank

H. The facts concerning the proceedings in the

Smith, Judge. two courts appear more fully in the opin

Suit by Florence B. Oldham against John ion of this court in Dungan v. Superior Court

L. Ramsner and others. From a judgment (Cal.) 84 Pac. 767, which was a controversy

in favor of plaintiff, and from an order denybetween the same parties, and raised the

ing a motion for a new trial, defendant same point here involved. It was there held

Alonzo Hewlett appeals. Affirmed. that "jurisdiction in such matters attaches Joshua B. Webster and Charles H. Fairall, upon the filing of the first petition, to the for appellant. Buck, Miller & Clark and superior court in which the petition is filed, Miller & Clark, for respondent. and continues during the pendency of the proceeding thus instituted, and that this jur- ANGELLOTTI, J. Plaintiff instituted isdiction is exclusive, precluding any other this action to quiet her title to certain land, court from effectually acting in the matter." and obtained judgment, and defendant HewThat ruling is conclusive against the appel- lett appeals from such judgment, and from lant's argument as to jurisdiction.

an order denying his motion for a new trial. If, then, the superior court of Fresno coun- The land involved in this action is all of ty had no power to appoint an administrator, the land situated in San Joaquin county, state pending the proceedings in Tulare, the ap- of California, particularly described as folpellant had no interest in opposing the ap- lows, to wit: All of lots numbered 9 and 10 pointment of another in Tulare county. He in block C in McCloud's addition to the city of was not himself an applicant for letters in Stockton, according to the official map or plat the latter county, but was merely opposing of said McCloud's addition to the city of Stockany action by the court. In view of the de- ton, on file in the office of the county recorder termination that the Tulare county court of the county of San Joaquin, state of Calihad the power to appoint, the appellant, who fornia. It was admitted that this property was (lid not himself seek appointment, is not a part of the school district containing the city affected by the grant of letters to any one of Stockton, and was assessed by said city for else. He was not a "person interested,” and school purposes for the year 1900, but that had no standing to oppose Dungan's appoint- it was wholly outside of the corporate limits ment. Code Civ. Proc. $ 1374. It is, there- of said city of Stockton. Upon the trial, fore, unnecessary to consider the point urged plaintiff showed ownership of this property that the court below was without power to ap- . in one Mary E. Baright, and then introduced point an administrator except upon probate in evidence a deed of conveyance thereof of the will said to have been left by the de- from said Mary E. Baright to her, executed cedent.

and recorded prior to the commencement of The order is affirmed.

the action. Appellant's sole claim was that

he acquired the title of said Mary E. BarWe concur: ANGELLOTTI, J.; SHAW, J. ight to said property, under a tax sale there

of made by the city of Stockton based upon

an assessment for school purposes for the (149 Cal. 540)

year 1900. For the purpose of showing this OLDHAM V. RAMSNER et al. (Sac. 1,412.)

he offered in evidence a tax deed from the (Supreme Court of California. Aug. 13, 1906.) tax collector of the city of Stockton to one 1. QUIETING TITLE-EVIDENCE-ADMISSIBIL

John L. Ramsner, proposing to follow this ITY.

with a deed from Ramsner to himself. The In a suit to quiet title to certain numbered

plaintiff's objection to the introduction of lots in Mi's addition to the city of S., lying

this deed was sustained, and the only queswithout the city, a tax deed to lots so numbered in M.'s addition “ * * * lying within the tion presented by this appeal is as to the city," and showing the assessment to have correctness of this ruling. been against such numbered lots in M.'s addi

Several points are made by plaintiff in tion "lying within the city," was inadmissible, there being nothing on the face of the descrip

support of this ruling, but it will be necestion tending to show any error in description, sary to consider only one. According to the and the courts not being able to take judicial deed, the land sold by the tax collector at notice that there was no M.'s addition within

the tax sale and conveyed by said deed was the city.

described as follows, viz.: "Lying and being 2. TRIAL-EVIDENCE-OFFER OF PROOF-PURPOSE OF ADMISSION.

within the said city of Stockton, county of Where, in a suit to quiet title, defendant San Joaquin, state of California,'described offered a tax deed, which, on its face, did not as follows, to wit: Lots nine (9) and ten embrace the land in controversy, its exclusion

(10), block C in McCloud's addition.” Upon was not error on the ground that it should have been admitted for the purpose of allowing him

the face of the deed, it further appeared that to show other facts to make certain the de. the assessment upon which the deed is based

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