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The procurement may have been by proper and justifiable means.

Note.--The following is the opinion in department referred to in the dissenting opinion:

MCFARLAND, J. A general demurrer to the complaint was sustained, and, plaintiffs not offering to amend within the time al. lowed, judgment was entered for defendants. Plaintiffs appeal from the judgment.

in appellants' points and authorities it is merely asserted that the complaint does state facts sufficient to constitute a cause of action, and in support of the assertion a general reference is made to 11 paragraphs of the complaint, which are designated by numbers. There is nothing more in the points that can be designated as argument, and no authorities are cited except section 694, Code Civ. Proc. The complaint, with exhibits attached, occupies 70 pages of the transcript. The gist of the complaint, when seen through the mass of the matter set forth, seems to be this: That in May, 1892, appellants executed to the defendant, the Security Loan & Trust Company, a mortgage on certain described lots of land to secure certain promissory notes made by appellants to said company; that on October 22, 1898, said company commenced an action to foreclose said mortgage, and that appellants employed an attorney, W. D. Peck, to defend the action; that the attorney filed a demurrer to the complaint, which was afterwards, by his consent, overruled; that on February 21, 1899, the said attorney made and filed a stipulation on the part of the appellants that appellants would make no further defense to the action; that their default be entered, and that judgment might be rendered for plaintiff in said action as prayed for in his complaint; that on said 21st day of February, 1899, a judgment of foreclosure was rendered and entered; that the defendant herein, Thomas F. Keefe, was appointed a commissioner to sell the mortgaged premises; that on the 22d day of January, 1999, said Keefe did sell said premises to the respondent herein, the said Security Company, and gave it certificates of sale, and on January 22, 1900, executed to respondent deeds for the land so sold. The main purpose of the action is to have the said judgment of foreclosure set aside, and the said sale of the mortgaged premises vacated.

It is averred that appellants' attorney in the foreclosure case was not authorized to make the stipulation above noticed, and that he did so by the procurement of the plaintiff in said action, etc. But it is also averred that within the time allowed by section 473, Code Civ. Proc., appellants

, moved the court in which the foreclosure judgment had been entered to set aside the default and vacate that judgment, that the court made an order denying said motion,

and that appellants had appealed from that order. It appears from the records of this court that the appeal from the said order was afterwards heard and the order affirmed, although that fact is not important here, and perhaps cannot be considered. Security L. & T. Co. v. Estudillo, 134 Cal. 166, 66 Pac. 257. At all events, the appellants by said motion to vacate the judgment had an ample remedy at law for their alleged grievance; and equity will not interfere where the remedy by law is ample.

It is a verred that the commissioner sold the mortgaged premises in nine different parcels, whereas it should have been sold in different and more numerous parcels as de manded by appellants by written notice served on the commissioner, and that there fore the said sale was void. But, in the first place, there is no averment of facts showing that appellants were injured by the manner of sale; and, in the second place, it was decreed in the judgment that the sale should be made in nine named parcels, and the commissioner in making the sale followed the judgment, and, such being the case, the only remedy for the alleged grievance was an appeal from the judgment. In Ontario Land, etc., Co. v. Bedford, 90 Cal. 181, 27 Pac. 39, and Marston v. White, 91 Cal. 327, 27 Pac. 588, it is said that the provision of section 694, Code Civ. Proc.—that upon the sale under execution of land consisting of several well-known lots or parcels the parcels must be separately sold, and according to the direction of the judgment debtor if he be present at the sale applies to a sale under a judgment of foreclosure only when the judgment is silent as to the method of sale; and while what is said in those cases may not be a direct adjudication on the subject still the rule must undoubtedly be as there stated. That part of the judgment in the foreclosure suit which directs how the mortgaged premises shall be sold is certainly not void; and, if it was erroneous, the only remedy was by appeal from the judgment.

The foregoing are the main points in the case, and we see nothing else necessary to be specially noticed. The complaint does. not state facts sufficient to constitute a cause of action and the demurrer was properly sustained.

The judgment appealed from is affirmed.

We concur: HENSHAW, J.; LORIGAN, J.

(149 Cal. 569) FORSYTHE V. LOS ANGELES RY, CO.

et al. (L. A. 1,733.) (Supreme Court of California. Aug. 17, 1906.

Rehearing Denied Sept. 13, 1906.) 1. CARRIERS-INJURY TO PASSENGERS-NEGLIGENCE.

Where a passenger on a street car, free from contributory negligence, was injured in a collision between the car and a wagon of a third person, the negligence of the third person.

was no defense where the street railway com- Action by Sarah C. Forsythe, administrapany's negligence, in whole or in part, caused the

trix of J. W. Forsythe, deceased, againsi injury, it owing to the passenger the highest

the Los Angeles Railway Company and ancare. [Ed. Yote.--For cases in point, see vol. 3,

other. There was a judgment for plaintiff Cent. Dig. Carriers, $ 1211.]

against defendant Los Angeles Railway Com2. SAJE.

pany and in favor of defendant Los Angeles In an action for the death of a passenger Hay Storage Company, and plaintiff and deon a strent car in a collision between the car and

fendant Los Angeles Railway Company apa wagon of a third person, the evidence showed that the motorman saw the wagon approaching peal.

peal. Affirmed. the track but did not check the speed of the car

Valentine & Newby and Bicknell, Gibson, till he was so close to the wagon that a rollision was inevitable. Held that, though it might

Trask, Dunn & Crutcher, for appellant. E. have been the duty of the driver of the wagon

W. Freeman, A. D. Laughlin, and Henry J. to have stopped until the car had passed, the Stevens, for respondents. motorman did not exercise the highest care toward the passenger because he failed to stop MCFARLAND, J. On the 16th day of the car, though knowing that a collision would

March, 19903. J. W. Forsythe, since deceased, ensue.

Ed. Yote.-For cases in point, see rol. 9, was a pilssenger on a street car of the deCent. Dis. Carriers, $ 1211.]

fendant the Los Angeles Railway Company, 3. APPEAL-PARTY AGGRIEVED.

which was running southerly on Main street In an action for the death of a passenger in the city of Los Angeles. He was seated on a street car, in a collision between the car

in the front part of the car on the easterly and a wagon of a third person, brought against the railway company and the third person, judg- side, and in a seat provided by the railroad ment was rendered against the company ani in company for passengers. As the car was favor of the third person. II cld, that the com- crossing Seventh street there was a collision pany was not a party aggrieved by the refusal

between the car and a large, heavily load. to render judgment against the third person ; there being no right of contribution between the

eil wagon of the other defendant. the Los codefendants.

Angeles Ilay Storage Company, and driven 4. CONTRIBUTION TORTS – JOINT WRONG- by one of its employés: and by this collision DOERS--STATITES.

the said Forsythe received injuries from Code Civ. Proc. $ 709, providing that where property liable to an execution against several

which he afterwards died. This action was persons is sold thereon, and more than a clue bronght by his administratrix, who is also his proportion of the judgment is satisfied out of widow', against both of said defendants to rethe proceeds of the property of one of them, he may compel contribution from the others, etc.,

cover damages for his death, the plaintiff does not change the rule that there is no right of

alleging that the death was caused by the contribution between joint tort-feasors, but negligence of both the said defendants. (For merely gives to a judgment debtor entitled to

brevity, the said first-named defendant will contribution the summary remedy of using the judgment itself to enforce contribution in

be hereafter (alled the "Railway Company." the manner prescribed.

and the other defendant the "Storage Com[Ed. Yote.--For cases in point, see rol. 11, pany.'') The case was tried without a jury, Cent. Dig. Contribution, $$ 6-9.]

and the court found that the injuries were 5. JPPEAL-MOTION FOR NEW TRIAL-REVIEW

caused by the negligence of the said Rail. OF EVIDENCE. Where, in an action for negligence, plain

way Company, and that the other defendant, tiff does not move for a new trial, the court,

the Storage Company, was not guilty of any on appeal, cannot consider the question of the negligence in the premises. It found the sufficiency of the evidence to show negligence. amount of the damage to be $1,000, to which 6. TRIAL--FINDINGS -- GENERAL AND SPECIAL

finding no exception is taken, and it rendered FINDINGS-CoXSISTENCY. In an action for the death of a passenger

judgment for plaintiff against the Railroad on a street car, in a collision between the car Company for the aforesaid amount of money, and a wagon of a third person, brought against but rendered judgment for costs against the street railway company and the third person, the court found that the death of the pas

plaintiff in favor of the Storage Company. senger was not caused by the negligence of the

The defendant the Railroad Company, made third person, but solely by the negligence of the a motion for a new trial, which having been company. The court farther found that the

(lenied, it appeals from the order denying driver of the wagon saw the car approaching when it was about 12. feet distant from the

said motion, and also from the judgment. point of the accident and did not stop his team

The plaintiff, being dissatisfied because judguntil too late. Held that, as the car was operat- ment was not given her also against the ed on a street, it could not be said that the

Storage Company, moved the court, under driver of the wagon did not exercise reasonable judgment in determining that he could pass the

sections 663 and 6631, of the Code of Civil crossing before the car would reach him, and a Procedure, to amend the conclusions of law judgment in favor of the third person was au- so as to show that plaintiff was entitled to thorized

judgment against both defendants, and, this 7. SAME. The finding of the ultimate fact prevails in

motion having been denied, the plaintiff apsupport of the judgment, notwithstanding a find- reals from the order denying it, and also ing of probative fact which tends to show that from that part of the judgment which is in the ultimate fact is against the evidence.

favor of the said Storage Company and Department 2. Appeal from Superior against plaintiff, and which adjudged that Court, Los Angeles County; N. P. Conrey, the plaintiff take nothing against said defendJudge.

ant, and that the latter recover its costs

against plaintiff. Plaintiff did not make any of the driver of the wagon to stop until motion for a new trial.

the car had passed, and that therefore the 1. Appeals of the Railway Company. motorman was not negligent in continuing

This appellant saved a few exceptions at the usual speed; and there is a good deal to rulings as to the advisability of evidence, of argument on the question whether or not but we do not think it necessary to notice the car had a right of way over the crossthese exceptions in detail, because they relate ing superior to that of the wagon. These to trivial matters which could have had no questions would be significant in an action effect upon the decision of the case. The brought by one of the two defendants against main contention is that the evidence is not the other for damage to the plaintiff in such sufficient to support the finding that the col- an action caused by the collision. But in the lision was caused by any negligence of appel- case at bar the railroad company should have lant, but this contention is not maintainable. exercised the highest care towards the deNo doubt the appellant makes a strong show- ceased; and it certainly cannot be truly said ing that the other defendant, the Storage that the motorman did exercise the highest Company, was guilty of negligence which degree of care to protect his passengers, when, contributed to the accident, and, in an action seeing the team closely approaching the crossbrought by the Storage Company to recover ing, with no evidence of the driver's intention damages from the Railway Company for in- to stop, and, knowing that if he continued jury done to its team by the collision, the on his course a collision would be inevitable, Railroad Company would perhaps have a good he made no reasonable effort to avoid such defense in the contributory negligence of the collision. Whatever chances he might have plaintiff in such an action. But the de- taken as to liability for damages to the team ceased was not guilty of any contributory and driver, he had no right to expose his negligence, and, if the negligence of the Rail

passengers to the danger of a collision which way Company was a cause of the damage, seemed likely to occur and which he might it has no defense to this present action in the have easily prevented. fact that the negligence of the Storage Com- This appellant further contends that even pany also contributed to that damage. This if the judgment against it could be considappellant must show that it was not guilty of ered as right, still the court erred in not alany negligence which, in whole or in part, so rendering judgment against the other decaused the injury; and we do not think fendant, the Storage Company, because, as that it makes such showing. It must be is claimed, the evidence showed that the remembered that the deceased was a passen- said other defendant was also guilty of neg. ger on appellant's car, and that it owed him ligence which contributed to the injury. But the very highest care. Immediately before the appellant is not a party aggrieved by the the accident the driver of the hay wagon refusal of the court to give judgment against going westerly along Seventh street was the Storage Company, even if such refusal about 40 feet distant from the point of the could be considered erroneous as against accident when he was seen by the motorman plaintiff. It is beyond doubt the well-estabof the car of the appellant, which was com- lished general rule that there is no right of ing at the rate of about eight miles an hour contribution between joint tort-feasors. Apsoutherly on Main street towards the place pellant contends that this rule has been chanwhere the driver would cross Main street ged by section 709 of the Code of Civil Proif he kept on his course. The motorman was cedure; but we do not think so. That secabout 125 feet from the point of the accident tion does not pretend to deal with the matter when he saw the driver of the wagon thus of the right of contribution between tortclosely approaching the crossing.. Neither feasors. Its plain intent is to simply prothe driver nor the motorman made any effort vide that, when there is a judgment against to avoid the collision until it was too late two or more defendants who are entitled to to accomplish that result. The court found, contributions from each other and one pays and the evidence supports the finding, “that the whole or more than his proportion theresaid motorman, seeing said hay wagon, did of, "the person so paying or contributing is not check the speed of said car until it reach- entitled to the benefit of the judgment to ened Seventh street, when he threw off the force contribution or repayment, if within current; that neither the said driver nor ten days after his payment he files with the the said motorman made any attempt to stop clerk," etc. It simply gives to a judgment his respective vehicle until the same was so

debtor entitled to contribution the summary close to the said point of accident that a col- remedy of using the judgment itself to enlision was inevitable"; that the motorman force the contribution, and relieves him of did not apply his air brakes until he was the necessity of pursuing some more tedious nearly at the center of Seventh street, wlien and inadequate proceeding for enforcing said he did apply the brakes and "stopped the car contribution. It is only an amendinent to within 15 or 20 feet," and that "when the the law of procedure; and the general rule said motorman applied the air brakes both is that an amendment to or provision in the the said car and the said hay wagon were

law of procedure does not change the subwithin a few feet of the point of collision." stantive law, unless the language used necesAppellant contends that it was the duty | sarily leads to that result. And it certainly cannot be said that the Legislature while ings of probative facts will not invalidate the enacting section 709 as a part of the law of finding of an ultimate fact unless the latter procedure necessarily intended to change, or is based on the former, and is entirely overdid change, the fundamental principle that come thereby, and unless, also, it appears there is no right of contribution between that these findings of probative facts dispose joint tort-feasors. Moreover, the section in of all the facts involved in the pleadings, terms relates only to cases where judgments and that the facts found constitute all the had been rendered, and therefore it does not facts in the case. Semple v. Cook, 50 Cal. apply to the case at bar.

26; Smith v. Acker, 52 Cal. 219; Wood v. 2. The appeals of the plaintiff.

Pendola, 78 Cal. 287, 20 Pac. 678; CommerOn these appeals plaintiff contends that the cial Bank v. Redfield, 122 Cal. 407, 55 Pac. court should have given her judgment against | 160, and cases there cited. And such a conthe Storage Comany as well as against the dition is certainly not presented in the case railroad company. As this appellant did not at bar. move for a new trial we cannot, on her ap- The judgment and order appealed from are peal, consider the question of whether or not affirmed. the evidence shows negligence on the part of the Storage Company; we can look only at

We concur: LORIGAN, J.; DIENSHAW, J. the findings. Appellant contends that upon the finding's judgment should have gone against the Storage Company. But the court

(3 Cal. App. 668) found the ultimate fact that the collision and MADERA RY. CO. v. RAYMOND GRANITE the injuries to the deceased "were not caused

CO. et al. by the negligence of the defendant, Los An

(Court of Appeal, Third District, California. geles Hay Storage Company, or by any of

May 29, 1996. Rehearing Denied by Suits agents, servants, or employés, but solely

preme Court July 26, 1906.) by the negligence of the agents,” etc., of the

1. EMINENT DOMAIN – PROCEEDINGS-PUBLIC railroad company. Appellant contends that

USE-BURDEN OF PROOF. this finding of the ultimate fact should be Under Code Civ. Proc. § 1238, providing considered as overcome by certain findings

that the right of eminent domain may be exer

cised in behalf of certain public uses, including of probative facts which are claimed to be in

railroads, and section 1241, declaring that before consistent with the finding of the ultimate

property can be taken it must appear that the fact; but this contention cannot be main- use is authorized and the taking necessary theretained. The findings of the probative facts

for, in condemnation proceedings by a

poration organized under the general laws to relied on are that the driver of the wagon

operate a railroad, the burden is on the corporasaw the car approaching when it was about tion to show a public use. 125 feet distant from the point of the accident [Ed. Note.-For cases in point, see vol. 18, and did not stop his team, but did after

Cent. Dig. Eminent Domain, $ 530.] wards, when it was too late, attempt to

2. SAME-WIAT CONSTITUTES PUBLIC USE. stop, but "the wagon was loaded with three

The public use requisite to the exercise of the

power of eminent domain need not be a use by or four tons of hay and was of unwieldy the entire community, or any considerable porbulk and weight, and was then so close to tion of it; but it must be common. the track, and to the car of said defendant, [Ed. Notr.-Hor cases in point, see vol. 18, the Los Angeles Railway Company, that be

Cent. Dig. Eminent Domain, $ 54.] fore the wagon could be entirely stopped the 3. SAME-RAILROADS. end of its tongue struck said car and scraped

Neither the length of the railroad, nor the

fact that it is a spur, bears any necessary relaalong its side.” In the first place, it does

tion to the question of public use. not clearly appear that these findings of the

[Ed. Note.--For cases in point, see vol. 18, probative facts are inconsistent with the Cent. Dig. Eminent Domain, $$ 59, 66.] finding of the ultimate fact. The railroad 4. RAILROADS CONSTRUCTION-STATUTES operated by the railroad company was a

-LENGTH OF ROAD. street railroad, not a steam railroad running

Civ. Code, $ 468, requiring every railroad

after commencing construction to complete, each through the country at great speed and with

year, five miles of road, failing in which the heavy trains which cannot, like a street car, right to extend the road beyond the point then be stopped within a short distance; and, un- completed is forfeited, does not limit the right der the circumstances detailed by the find

to construct a road to one not less than five

miles in length. ings, we could not well say that the driver

5. SAME-RIGHT OF WAY-RIGHTS IN HIGHof the wagon did not exercise reasonable

WAYS. judgment in determining that he could pass Under the express provisions of the statute, the crossing before the car would reach him, railroad corporations may construct their roads and in not trying to stop sooner that he did.

across or along highways.

[Ed. Note.--For cases in point, see vol. 41, But, in the second place, the general rule is

Cent. Dig. Railroads, $8 260–265.] that the finding of the ultimate fact prevails

6. APPEAL-REVIEW-INVITED ERROR. in support of the judgment notwithstanding

An appellant cannot complain of the ada finding of a probative or evidentiary fact mission of evidence introduced by him. which tends to show that the ultimate fact

[Ed. Note.--For cases in point, see vol. 3, was found against the evidence. And find- Cent. Dig. Appeal and Error, $ 3597.]

7. EMINENT DOMAIN-PROCEEDINGS-DEFENS- 17. SAME. Ex.

In condemnation proceedings by a rail-. In condemnation proceedings by a railroad, road to condemn a right of way along the l-ighthe good faith of the corporators in forming the way over defendant's land, there was no prejucorporation cannot be called in question.

dicial error in admitting on behalf of plaintiff S. SAME.

the testimony of a witness on the question of A corporation not organized for railroad damages when the condemnation for the highpurposes was authorized by the supervisors of a

way was before the court, the court limiting county to build a railroad along a certain high

the testimony to the value of the land, and on way, but subsequently the building was enjoined.

condition that it be shown that the value had Thereafter a railroad company was incorporat

not changed. ed and petitioned for a franchise to build along [Ed. _Note.-For cases in point, see vol. 18, the highway; the petition being accompanied Cent. Dig. Eminent Domain, § 512.] by a waiver of the franchise granted the other corporation. Held, in condemnation proceed- Appeal from

from Superior Court, Jadera ings by the railroad to condenin a right of wa

County; L. W. Fulkerth, Judge.. along the highway, that the owner of the land could not object on the ground that the former

Proceedings by the Madera Railway corporation had not conveyed to the railroad its Company against the Raymond Granite Comright of way, under Cir. Code, § 494, relating pany and another for the condemnation of to sales of property by one railroad to another.

lands, and, from the judgment of condemna9. SAME-PUBLIC ('SE-WILAT COXSTITUTES.

tion, the

the granite company appeals. AfThe fact that the advantage of a railroad

firmed. inures to a particular individual or class of individuals does not render the use not public. Robert L. Hargrove, for appellant. C. H. 10. SAME.

Oatman and T. C. West, for respondent rail. The fact that a railroad corporation has been formed to build a road to connect with

way company. R. R. Fowler, Dist. Atty., for another one, and be a branch thereof, does not respondent county. render the use by such corporation not a public one.

CHIPMAN, P. J. Condemnation of land [Ed. Note-For cases in point. see vol. 18 Cent. Dig. Eminent Ioinain, $ 60.]

for right of way. The complaint alleges the 11. SAME.

due incorporation of plaintiff under the laws The fact that all the stockholders in a rail.

of this state "for the purpose, among other road company were stockholders in a corpora- | things, of constructing, owning, maintaining tion which would be primarily benefited by the

and operating a single track railway of a construction of the road did not show the use not a public one.

standard gauge, to be operated by steam, for 12. SAME

the carrying of passengers and freight thereThe fact that a railroad company had not on and thereover for hire, commencing at cars with which to operate its road, and in- 'Curtis' Station' situated at the intersection tended to arrange with another road to oper- of the branch of the Southern Pacific Railate the former one, did not show the use by the road in question not a public one.

road nown as Knowles Spur at the crossing 13. SAME – PROCEEDINGS-EVIDEXCE-SUFFI

of the 'McLennan Road' in section No. 22, CIENCY.

township 8 south, ranch 19 east M. D. B. & In condemnation proceedings by a railroad, M.; thence in a southerly direction along, evidence considered, and hold sufficient to show

said McLennan Road to 'McGowan Station,' the use a public one. 14. DEPOSITIONS OBJECTIONS – RIGHT TO

situated about eight hundred feet south of OBJECT.

Madera Granite Company's quarry in the Code Civ. Proc. $ 2034, provides that, when southeast quarter of section 27," said towna deposition has been taken, it may be read by either party, and is then deemed the evidence

ship and range. The complaint describes of the party reading it. lleld, that where des

with particularity the strip of land required, fendant took plaintiff's deposition, and called as shown on a map attached to the comfor a copy of records of plaintiff

, which were in- | plaint and marked “Exhibit A.” copy of corporated into the deposition, and plaintiff offered the deposition in evidence, an objection

which is attached to the transcript. The that the copy was not the best evidence was

area of land sought to be condemned is .62 untenable.

acres, and "the same does not include the 15. SAME.

whole, but is only a part of an entire tract Code Civ. Proc. $ 2032, provides that a der- of land" and is situated in Madera county. osition may be used by either party on the trial, subject to all legal objections except “to

That defendant company "is the owner of an the form of an interrogatory." Defendant took

interest in said tract of land, hereinbefore plaintiff's deposition, but plaintiff offered it in particularly described, and also the larger evidence, and during the reading thereof ob

tract of land of which it is a part." That jected to a question which called for the "deliberate judgment” of a witness as to a matter,

the defendant county “is the owner of an and not as to the facts of the matter. IIrld,

easement over said tract of land, and the that plaintiff was not estopped to object to the same is now used as a highway for vehicles question.

and pedestrians to pass over. That the said 16. EMINENT DOMAIN - PROCEEDINGS - DAM

tract of land herein sought to be taken conAGES-EVIDENCE-ADMISSIBILITY. In proceedings by a railroad to condemn a

sists of the west half of said highway and right of way along a highway over defendant's will not in any manner impede or interfere lands, it was proper, on the question of defend with the use of said highway.” It is also ant's damages, to exclude evidence as to the condition in which the highway was left by

a verred that "the taking of said strip of land plaintiff's grading at points other than that

is for a more necessary public use than that along defendant's land.

to which it has already been appropriated,"

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